The Owen Labrie Trial: Electronic Discovery Makes or Breaks a Case

computer-keyboard-1188763On August 28, 2015, a New Hampshire jury convicted Owen Labrie, a former prep school student at the prestigious Saint Paul’s preparatory high school, of one felony charge and several misdemeanor sexual assault and child endangerment charges against a 15 year old victim who was a freshman at that school while Labrie was a senior. The jury acquitted Labrie of the more serious aggravated felony sexual assault which carries 10 to 20 years in jail. Nonetheless, the jury found him guilty of the felony charge related to his use of an online service or the internet to solicit a minor under the age of 16 for the purposes of sex. In total, Labrie faces a maximum of 11 year in prison in addition to inclusion in the sex offender registry.

Labrie’s defense team will likely appeal the verdict. Moreover, there will be other likely avenues for post conviction relief (PCR). The case highlights how email and social interactions over the internet are changing the way defense attorneys and prosecutors are handling cases dealing with allegations of sexual assault. Prior to the internet, prosecuting a date rape charge came down to testimony of the victim typically accompanied by some third party eye-witness testimony. In this technological age where many conversations are recorded and sent via text message or over the internet between the victim and the accused can be used both to prosecute and defend from an evidentiary standpoint. For example, in the Labrie case, his defense team offered to jury email exchanges between the victim and Labrie showing the sexual acts were consensual. In Labrie’s case, those messages may have been the difference in the jury acquitting him of the more serious aggravated sexual assault charges.

This issue raises the duty on defense attorneys to obtain all their client’s cellphone and electronic communicates with the alleged victim. A failure to undertake such an action could lead to challenges on post-conviction relief for ineffective assistance of counsel. If the trial attorney did not conduct that investigation, a good PCR attorney should conduct those investigations to determine if that information yields information supporting his or her client’s innocence. If so, a judge may determine that the conviction should be vacated and the defendant is entitled to a new trial. In addition, with the vacation of that conviction comes the removal from the sex offender registry.

Sexual assault cases are one of the most complicated matters to handle in the criminal defense field given the highly charged subject matter, particularly if the offense involves a minor. Moreover, the defendant faces enhanced prison sentences and lifetime restrictions in light of the possibility of a sex offender designation. That puts tremendous pressure on criminal defense attorneys to conduct thorough pre-trial investigations involving the procuring all their client’s electronic interactions with the alleged victim, both leading up to the alleged incident and their electronic communications after the interaction. Labrie’s case is not unique, and it stands for the proposition that there is a greater burden on defense attorneys in light of practicing in today’s technological age.

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