Loading ...Federal Law Restricts Discovery in Child Pornography Cases
The Adam Walsh Act was signed into law in 2006 and was largely concerned with the expansion of the National Sex Offender Registry and the grant of additional resources for Internet Crimes Against Children Task Forces. One minor piece of the legislation though has caused federal defense attorneys and their clients are great deal of trouble for the last two and a half years. A provision in the law restricting access to evidence of child pornography significantly undermines a defendant’s right to due process and a fair trial.
18 USC § 3509(m) now requires that any child pornography evidence must remain in the custody of the court or the U.S. government. The legislation directs a court to ignore the Federal Rules of Criminal Procedure with regard to discovery and deny any defense request to copy the material as long as the government makes it “reasonably available” to the defendant.
The law goes on to define “reasonably available” as the opportunity to inspect, examine and view the original material at a government facility. This would include any inspection by a forensic or other expert.
The most frequently used defenses in computer-based child pornography cases are based on whether an image depicts an actual child or a digitally-altered adult and whether the defendant knowingly possessed or received the image. Experts and their examination of the evidence (the images and the hardware), however, are crucial to mounting a strong defense.
Because of the limitations slipped into the Adam Walsh Act by Congress, discovery review and defense of these cases has been extremely difficult for federal criminal defense attorneys. To address the problem, the Northern District of California Federal Public Defender and United States Attorney’s office negotiated a stipulated protective order to allow for more meaningful defense review of child pornography evidence.
Federal criminal defense attorneys, including those here in the Tampa Bay area, are hopeful that the California stipulated order can be used in federal child pornography cases across the country. The order negotiated in San Francisco allows the defense to access and review the alleged pornographic evidence in a secure room in the federal building.
The defense (defendant, attorneys or experts) can use a workstation provided by the government, or bring in its own computer. They will work off a mirror copy of the original hard drive and will have no Internet access in the federal facility. Anyone doing analysis must sign a certification that no images will be removed from the room. The government will not review the defense expert’s analysis or configurations on the copied hard drive at any time before, during or after the case.
There continue to be several pending challenges to the constitutionality of the Adam Walsh Act and this stipulation does not concede its constitutionality. Future litigation on the issue is still an option. In most cases, though, federal defense attorneys are hopeful that this protective order or one like it will help facilitate more meaningful defense review than the very limited access the U.S. Attorneys’ offices have allowed thus far.