On July 29, 2020, the Minnesota Supreme Court handed down a rare writ of prohibition in a unanimous order. The order – issued in the case In re: B.H. v. Cengiz Gino Yildirim – overturned an order from the lower court requiring the alleged victim of sexual assault to hand over her cell phone for analysis to the defense.
Issuing a writ of this nature during the pre-trial stage of a criminal case is highly unusual. While a number of advocacy groups celebrated the decision as a victory for victim’s rights, the writ raises serious questions about the accused’s right to prepare a proper defense in the age of digital technology. These matters were further complicated by the Supreme Court’s finding that later attempts by the defendant to establish a viable need to analyze the alleged victim’s device were not timely raised.
The case in question stems from an act of criminal sexual conduct the defendant is accused to have committed on December 9, 2018. According to the court record, the complaining witness B.H. attended a concert with friends during the evening of December 8. Following the concert, B.H. went to a bar and consumed alcohol with friends. When B.H. returned to a friend’s house to sleep, she allegedly woke in the early hours of December 9 to find Cengiz Gino Yildirim touching her. B.H. alleges that she was assaulted three separate times during the night and awoke in the morning to discover Yildirim was gone.
The following morning, B.H. took photos with her phone of Yildirim’s watch on a nearby nightstand. She also photographed blood smears on the sheets. B.H. disclosed the alleged attack the friends, went to the hospital for a sexual assault examination, and reported her allegations to law enforcement. According to B.H., she also communicated with Yildirim about the allegations using the social media platform Instagram. Prior to Yildirim’s arrest, police extracted some digital evidence from B.H.’s cell phone before returning it to her on the same day.
Law enforcement issued criminal charges against Yildirim on March 27, 2019.
The procedural history of the case prior to the issuance of the writ is extensive despite the fact that a trial has yet to commence. In May of 2019, Yildirim sought the disclosure of “books, papers, documents, photographs, law enforcement office reports, [and] tangible objects which relate to the case.” Later, Yildirim specifically requested that the complaining witness submit her cell phone to an independent forensic inspection. Yildirim also sought the forensic data recovered from the phone by the police. Instead, the State provided Yildirim with a sort of digital timeline of data from the phone, but only for the four-day range between December 7, 2018 and December 10, 2018. This range covered the two days prior to the alleged assault as well as the day that followed.
In November of 2019, Yildirim moved to compel production of the cell phone. While the State and defense initially resolved the motion with an agreement that the State would provide the rest of the data they collected, Yildirim moved to compel again due to the insufficiency of the provided data. On December 12, 2019, the trial court ordered B.H. to turn over the phone, which she failed to do.
Weeks later, Yildirim moved to subpoena the phone pursuant to Minnesota Rule of Criminal Procedure 22.01. The motion sought a subpoena covering “cell phone activity” from November 19, 2018 through March 27, 2019. The court granted Yildirim’s motion, and the defense served the subpoena on B.H.
B.H. moved to quash the motion, arguing that Yildirim’s request was unreasonable. Specifically, B.H. alleged the request fails to show any relevance, specificity, or materiality. At the hearing, Yildirim argued that the limited data recovered from the phone points to additional contacts between B.H. and the police and others. Yildirim alleged B.H. had changed her story over time, and that the cell data could present a different version of her story depending on who B.H. talked to.
B.H. then filed a notice of appeal as well as a motion staying the subpoena. At the hearing for the stay, Yildirim filed an addendum to his brief laying out specific reasoning for the request. Yildirim’s addendum points to “at least three instances” where B.H. allegedly made prior false allegations of sexual assault and also argues the cell data could point to inconsistencies between B.H.’s original report and the statements she made to friends. The trial court denied a motion to stay. B.H. then filed a petition for a writ of prohibition which was denied by the Court of Appeals. The Supreme Court then took up the matter.
The Reasoning of the Supreme Court
The Minnesota Supreme Court disagreed with both the trial court and the Court of Appeals, agreeing that the request for the cell phone was unreasonable. In their order, the Supreme Court found that the court’s issuance of the subpoena for the complaining witness’ cell phone was unauthorized by law.
The Court acknowledged that while prior decisions had upheld the use of in camara review of confidential information belonging to the complaining witness, it also held that cell phone data was different. The Court cited U.S. Supreme Court decision Riley v. California in holding that “cell phones differ in both a quantitative and qualitative sense from other objects.” Given the ability to reconstruct the private details of a person’s life from a cell phone, the Minnesota Supreme Court held that subpoenas for this digital data is held to a higher standard. The Court ruled that Yildirim failed to make the case that the request for the subpoena was reasonable, and granted the writ of prohibition.
In a footnote on Page 8 of the decision, the Supreme Court notes that Yildirim attempted to augment his explanation of the need for a subpoena. B.H. filed a motion to strike the addendum that addressed specific reasons behind the request, and the Supreme Court agreed that the addendum was improper. The end result is that the court did not consider the additional argument from Yildirim regarding the necessity of the cell phone data.
Would that additional argument have made any difference? There is no way to be certain. However, potential evidence of prior false sexual assault allegations or specific inconsistent statements is unquestionably relevant to Yildirim’s defense. It remains to be seen if the Supreme Court would rule similarly in a case where the defense made a timely, complete case for the relevance of the cell phone data.