Chapter 21. Discovery in Child Pornography Cases
Information in this chapter:
• The Adam Walsh Child Protection and Safety Act of 2006
• The discovery process
Cases involving contraband, specifically child pornography, require that you follow specific rules to make sure that you get what you need in the case and also can get access to the evidence to be examined by a digital forensic examiner. In this chapter we will discuss how to go about handling discovery in a child pornography case.
Keywords
Child Pornography, Adam Walsh Act, Discovery, Contraband
Introduction
Internet predator and child pornography cases are among the fastest-growing number of cases we see. As a result of the efforts of the Internet Crimes Against Children (ICAC) task force, cases involving child pornography present challenges that other cases do not, specifically because the primary evidence in the case, the images or movies, cannot be given to the defense attorney or the defense attorney’s expert. This means that any viewing of the items the client is charged with must be done at a law enforcement location. The same holds true for any examination of the evidence. Bear in mind that not every case that involves child pornography begins as a child pornography case. If you have a rape case or even a divorce case that involves some form of electronic evidence, there is potential for contraband to be found. When that happens, it changes the way all the electronic evidence must be handled and can pose significant cost and complexity issues. Also, if a non-law-enforcement examiner is analyzing evidence in any kind of case and finds child pornography, he or she is required to stop the examination and notify law enforcement so the evidence can be turned over to authorities.
In this chapter we will give you information on ways to deal with this special type of case.
21.1. The Adam Walsh Child Protection and Safety Act of 2006
It is important that you be aware of the language in the Adam Walsh Child Protection and Safety Act1 regarding discovery in contraband cases. The full text of the bill is located at http://www.justice.gov/criminal/ceos/Adam%20Walsh.pdf. Section 501 provides the congressional findings cited in the bill.
Sec. 501. Findings.
(2) The importance of protecting children from repeat exploitation in child pornography:
(A) The vast majority of child pornography prosecutions today involve images contained on computer hard drives, computer disks, and related media.
(B) Child pornography is not entitled to protection under the First Amendment and thus may be prohibited.
(C) The government has a compelling State interest in protecting children from those who sexually exploit them, and this interest extends to stamping out the vice of child pornography at all levels in the distribution chain.
(D) Every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse.
(E) Child pornography constitutes prima facie contraband, and as such should not be distributed to, or copied by, child pornography defendants or their attorneys.
(F) It is imperative to prohibit the reproduction of child pornography in criminal cases so as to avoid repeated violation and abuse of victims, so long as the government makes reasonable accommodations for the inspection, viewing, and examination of such material for the purposes of mounting a criminal defense.
These findings form the basis for the discovery provisions codified in the U.S. Code as shown in 18 U.S.C. § 3509. 2
(1) In any criminal proceeding, any property or material that constitutes child pornography (as defined by section 2256 of this title) shall remain in the care, custody, and control of either the Government or the court.
(2)
(A) Notwithstanding Rule 16 of the Federal Rules of Criminal Procedure, a court shall deny, in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography (as defined by section 2256 of this title), so long as the Government makes the property or material reasonably available to the defendant.
(B) For the purposes of subparagraph (A), property or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.
In a federal case, there are no provisions for you or your expert to obtain a copy of the contraband materials, even under a protective order. In state cases, the rules may be different. For example, Virginia Code § 19.2-270.1:13 allows a court to release contraband data to counsel or a designated expert under the terms of a protective order.
21.2. The discovery process
Having worked as defense experts on many contraband cases, we have learned that the discovery process must happen in two steps in order for the defense expert to have as much information as possible to help you and your client.
21.2.1. First round of discovery
The items that you and the expert need to begin the process of analyzing the case are listed below. These items should be included in any initial discovery request from the prosecution, with special care to ask for the forensic reports in a redacted form.
1. A copy of all police reports, witness statements, defendant statements, and any audio or video recordings made by police or other parties.
2. A copy of any computer forensic report completed by law enforcement experts with any contraband images redacted in accordance with the Adam Walsh Child Protection and Safety Act of 2006.
3. A copy of all search warrant affidavits, search warrant returns, item inventories, chain of custody reports, case reports, and field notes made by police.
4. A copy of any records obtained in the course of the investigation including but not limited to criminal histories, phone records, Internet service provider records, or other third-party records.
5. A copy of the resume or curriculum vitae of any prosecution or police expert who acquired, collected, copied, or examined any form of evidence.
6. A copy of any screenshots, photographs, or other images created by police during the course of the investigation. If such screenshots or other images contain contraband, the contraband images are to be redacted in accordance with the Adam Walsh Child Protection and Safety Act of 2006.
7. A copy of any subpoenas issued by police to third parties.
8. A copy of any dispatch records pertaining to the investigation.
21.2.2. The second round of discovery
The second step in a contraband case involves getting access to the evidence for examination by the defense expert. For this purpose the following language is provided as a guideline for use in cases as a method for setting up the ground rules for the expert to perform an examination of the evidence containing contraband. Whether or not the language in the following example is needed will depend on the law enforcement agency involved, the individual prosecutor, and the laws of the governing jurisdiction. Also, the guideline language provided should be modified to suit the individual case as needed.
The Defendant moved the Court to compel the State of __________ to provide to the Defendant access to the physical evidence seized by the State in the course of its investigation. The Court considered this motion and arguments of counsel and for good cause shown allows the Defendant’s motion under the following conditions:
1. The defense expert will supply in advance, an external hard drive, factory new, for the purpose of the forensic examination. If the evidence to be copied to the examination drive is in raw format, then the examination drive must first be forensically wiped to prevent contamination of the evidence.
2. The law enforcement agency shall copy to the provided hard drive any FTK, EnCase, or other type of forensic image files that are an exact copy of the hard drive(s), CD- or DVD-ROM media, flash cards, floppy disks, smart media cards, or any other digital evidence seized and copied by law enforcement.
3. The law enforcement agency shall provide to the defense expert an unredacted copy of any computer forensic reports for the purpose of the forensic examination. Such unredacted reports shall be returned to the law enforcement agent at the end of each day’s examination period.
4. The expert will perform all of his work on the provided hard drive, using at his option, either his own forensic analysis equipment and software or forensic analysis equipment provided by the law enforcement agency.
5. At the end of the forensic examination session, the examination hard drive will be sealed in the presence of the defense expert and given to the law enforcement agent and kept in the custody of the police in case further review is needed at a future time.
6. When the expert sets up his case in his forensic analysis software, he will ensure that all temporary files, exports, and any other files that would normally be written out during the analysis will be written to the provided examination hard drive. The expert will show the law enforcement agent the setup of his analysis software for this case to support the above.
7. The law enforcement agency shall make such supervisory arrangements as deemed appropriate in accordance with the law enforcement agencies’ policies and procedures for the forensic examination of contraband material by a defense expert.
8. The expert will show to the law enforcement agent any items he wishes to copy or print, to provide to defense counsel as part of his analysis reporting, to ensure that no contraband images are copied or transferred.
9. The expert will be given a minimum window of six hours per day, scheduled in advance, to perform the analysis, with further analysis time to be provided if needed at a future date.
10. All items and information discovered by the expert are to be treated as attorney work product, and protected as such even though the law enforcement agent will review said documents and information for the presence of contraband.
Summary
In this chapter we looked at the laws regarding discovery in cases containing contraband materials, specifically child pornography. We also looked at methods for obtaining the discovery items both in a pre-examination redacted form and for the examination of the evidence by a defense expert.
References
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