Court to take up a defendant’s right to see social media posts

Bret Meuli, the principal at Canon City High School â€“ where more than 100 students at the high school were apparently exchanging nude pictures â€“ calls up an app to show what students are using to hide photos on their cellphones, in Canon City, Colo., Nov. 6, 2015. While trading raunchy photos can be viewed legally as violating child pornography laws, few prosecutors want to ruin a teenagerâ€™s life for a one-time display of immaturity. (Nick Cote/The New York Times) less Bret Meuli, the principal at Canon City High School â€“ where more than 100 students at the high school were apparently exchanging nude pictures â€“ calls up an app to show what students are using to ... more Photo: Nikck Cote, New York Times Photo: Nikck Cote, New York Times Image 1 of / 1 Caption Close Court to take up a defendant’s right to see social media posts 1 / 1 Back to Gallery

The state Supreme Court has taken up a San Francisco murder case to decide when, or whether, defense lawyers can see what prospective witnesses have posted on social media such as Facebook, Instagram or Twitter to try to discredit their testimony.

A 1986 federal law makes the content of “stored electronic communications” confidential, but allows criminal prosecutors to gain access with a search warrant. In the San Francisco case, a state appeals court ruled in September that defendants have no right to see the records before trial, while they are preparing their cases, but may be able to seek access during their trial.

Appeal to be reviewed

The ruling displeased both defense lawyers, who argued they should have the same access as prosecutors, and social media networks, who contended the federal law prohibits all access to the records by defendants or any other private citizens. On Wednesday, the state’s high court voted unanimously to set the appellate ruling aside and review an appeal by the defendants. No hearing date has been scheduled.

The case could have national importance, said Janelle Caywood, a lawyer for defendant Lee Sullivan. She said the now-shelved appellate decision was the first in any state to indicate that criminal defendants had a right to examine social media accounts during a trial.

“Our clients cannot have a fair trial if we have thousands of records dumped on us in the middle of the trial,” Caywood said. She said a ruling entitling them to pretrial access, though binding only in California, would have significance for “criminal defendants throughout the country.”

A lawyer for Facebook, Instagram and Twitter, whose records are all being sought in the case, declined to comment.

The case stems from a June 2013 drive-by shooting in the Hunters Point neighborhood that killed 19-year-old Jaquan Rice Jr. and wounded his 17-year-old girlfriend, who were at a Muni bus stop. Prosecutors accused Sullivan, 22, and Derrick Hunter, 20, of a gang-related murder. In a separate prosecution, Hunter’s 14-year-old brother was convicted of the murder in juvenile court.

Defense lawyers want records of postings, private messages and other information from the social media accounts of Rice, the victim and Renesha Lee, Sullivan’s former girlfriend and a prospective prosecution witness. The lawyers contend Lee’s records would help them show she was motivated to lie, and Rice’s accounts would assist them in questioning a prosecution gang expert about the motivation for the shooting.

‘Confront’ witnesses

A Sept. 8 ruling by the First District Court of Appeal in San Francisco noted that the state’s and nation’s high courts have both ruled that a defendant’s constitutional right to “confront” opposing witnesses, with enough information to conduct cross-examination and determine whether a witness is telling the truth, applies only during the trial.

“A criminal defendant’s right to pretrial discovery is limited, and lacks any solid constitutional foundation,” said Justice Terence Bruiniers in the appellate court’s 3-0 decision. He said the defendants could renew their requests during the trial, when the judge could weigh their need for effective cross-examination against the confidentiality that the federal law is meant to protect.

The case is Facebook vs. Superior Court, S230051.

Bob Egelko is a San Francisco Chronicle staff writer. E-mail: begelko@sfchronicle.com Twitter: @egelko