Over two years ago, Time Magazine reported that Americans check their smart phones for messages almost 50 times a day. Last week, an early morning television medical news and entertainment show, The Doctors, broadcast in Philadelphia, reported Americans check their telephones for messages over 1,000 times a day. In 2014, the U.S. Supreme Court in Riley v. California, 134 S.Ct. 2473 (2014), in the context of cellular telephone evidence seized incident to arrest, referred to the ubiquitous nature of an individual’s electronic footprint when it observed that “[t]oday … it is no exaggeration to say that many of the more than 90 percent of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.” Riley, 134 S.Ct. at 2490. (In Riley, the Supreme Court concluded that the government could not search the contents of a cellular telephone seized incident to an arrest without either obtaining a search warrant or showing an exception thereof.) The same may be said for the digital footprint created by individuals utilizing online social media sites. So it is no surprise that courts nationwide are more frequently wrestling with subpoena requests in litigation initiated by the defense in criminal cases for state’s witnesses’ relevant smart phone data and social media footprint including their posts, messages and emails in pursuit of finding impeachment material, conflicting explanation of events, false information and other grounds for further investigation to, among other reasons, challenge these witnesses’ recollection and reliability. Common issues raised by this litigation will be addressed in this article.

Sixth Amendment Right to Compulsory Process

Both the state and federal constitutions guarantee a criminal accused the right to compulsory process for obtaining evidence in his favor. U.S. Constit. Amend. VI provides, in pertinent part, that in all criminal prosecutions, “the accused shall enjoy the right  …  to have compulsory process for obtaining witnesses in his favor, and to have the assistance of Counsel for his defence.” The Sixth Amendment right to assert a defense is guaranteed by the Fourteenth Amendment to defendants in state criminal courts of the United States, and accordingly, defendants are entitled to notice, confrontation and compulsory process, which in combination guarantee that a criminal charge may be answered in a manner deemed fundamental to the fair administration of American justice through the calling and examination of favorable witnesses, cross-examination of adverse witnesses, and the proper admission of evidence at trial.