18 U.S. Code § 3509(m)

If you’ve ever watched old movies about criminal trials, you’ve probably seen the moment when the defense springs its surprise evidence on the prosecution and wins the case. I read a book severalf years ago about Earl Rogers, a famous criminal defense lawyer who practiced in the Los Angeles area around a century ago. Rogers was known for his, shall we say, unorthodox defense techniques, which including the kind of surprise evidence tactics I just noted.

We don’t do that any more. For decades, state and federal courts have enforced rules governing what is known as “discovery” in criminal cases. You can find the federal rule governing discovery – Federal Rule of Criminal Procedure 16 – here.

Some point to the U.S. Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963) as initiating this trend. According to one source, the Brady decision – which requires prosecutors to provide defense attorneys evidence that negates their guilt of the crime(s) charged or would mitigate the punishment imposed on conviction – began a shift from the old trial by ambush to a system that is still adversarial but is more concerned with finding the truth than with winning at all costs. The Brady Court held that access to evidence that negates guilty and/or can reduce punishment is an element of due process of law guaranteed by the U.S. Constitution; so failing to provide access to such evidence is an unconstitutional denial of due process.

So as you can read in Federal Rule of Criminal Procedure 16, if the defense so requests the government has to give it a variety of things, including the opportunity “to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places . . . if the item is within the government's possession, custody, or control and” it is material to preparing the defense or the government intends to use the item in its case at trial. Federal Rule of Criminal Procedure 16(a)(1)(E).

That requirement does not seem to have been particularly problematic until a few years ago when prosecutors began to argue that defense attorneys were not entitled to copies of digital images at issue in a possession, creation or distribution of child pornography cases. Some prosecutors, anyway, argued that the images were contraband, which means that possessing them is itself a crime; they claimed that if they gave copies of the images to defense attorneys, so defense experts could analyze them, this would mean the defense attorneys were committing a crime (possessing child pornography).

Defense attorneys, in turn, argued that they needed copies of the images so their experts could analyze them. The primary reason for having them analyzed was to determine if the images were computer-generated or computer-morphed, making them virtual child pornography. As I noted in an earlier post, the Supreme Court has held that it is not a crime to possess child pornography that was created virtually; the possession of child pornography is a crime in the U.S. only if the child pornography was created by exploiting real children.

Congress decided to resolve this issue by adopting a statute, and on July 27, 2006 the Adam Walsh Child Protection and Safety Act of 2006, Public Law No. 109-248 § 504, went into effect. The Act was codified as 18 U.S. Code § 3509(m), which provides as follows:

(1) In any criminal proceeding, any property or material that constitutes child pornography . . .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 . . . any request by the defendant to copy, . . . or otherwise reproduce any property or material that constitutes child pornography . . . 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 . . . examination at a Government facility . . . by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.

Not surprisingly, many defendants have challenged the constitutionality of the Act, claiming it deprives them of a fair opportunity to have their expert conduct the type of analysis noted above. A federal judge in Colorado noted the defense counsel’s lament that the Walsh Act

obtrudes the long-standing practice by which . . . defense attorneys, as officers of the Court, historically obtained discoverable media under protective orders, imposing limitations upon defense counsels' dissemination . . . of the materials. Counsel argues that those limitations were sufficient to allay the concerns underlying the Walsh Act. I appreciate defense counsel's view that the Walsh Act is . . .a remedy in search of a defect and . . . introduces an inherent imbalance in the parties' respective access to discoverable materials. However, I am charged not with assessing the efficacy of the statute but rather with determining whether it is constitutiona[].

U.S. v. Sturm, 560 F.Supp.2d 1021 (D. Colo. 2007). Courts have consistently held that the Act does not violate due process under Brady as long as the defense experts are given reasonable access to the digital images that will be used at trial and sentencing.

A recent decision from a Connecticut federal district court describes the procedure that is usually employed to give a defense expert reasonable access to these images:

The Government has offered to make the Electronic Evidence available at the FBI field office . . . less than fifteen miles from [the expert’s] office. The Government has offered to provide . . . a computer that meets the minimum system requirements for both EnCase and FTK . . . with respect to the processor, memory, hard drives, and display. The computer would also include a CD/DVD drive, a printer, and a keyboard and mouse. [He] would be permitted to install any software onto the computer and the Government would install a hard drive containing the Electronic Evidence.

[The expert] would be given unsupervised access to the computer, and permitted to leave the computer on and processing in his absence. No one would be permitted access to the computer without [his] permission and he could seal the computer with evidence tape in his absence. While [the expert] would not be permitted to remove data from the computer, he would be allowed to remove printed notes or reports.

After [his] examination, the hard drives would be removed from the computer, sealed by [the expert], and stored by the FBI until the conclusion of the case.

U.S. v. Gaynor, 2008 WL 113653 (D. Conn. 2008).

Defense attorneys often claim this procedure is not satisfactory because it limits the defense expert’s ability to use his/her own equipment in the analysis. This argument has worked on occasion. In U.S. v. Knellinger, 471 F.Supp.2d 640 (E.D. Va. 2007), the defendant’s experts told the court that the government’s arrangements were inadequate:

Tom Owen . . . testified that he would normally charge . . . $135,000 to analyze the child pornography in this case, but would charge . . . $540,000 if he had to analyze those materials . . . a Government facility. That does not include the cost of transporting the quite extensive collection of equipment . . . which would take . . . one week and three men to move, and require `a truck ... 20 feet long and 10 feet wide.’

[E]ven if Owen were able to move his equipment to a Government facility, he would have concerns about its reliability. . . . And, even if he thought his equipment was functioning properly, his ability to analyze the evidence thoroughly and carefully would be compromised to such a degree that he `wouldn't be able to service the client . . .’ effectively. The consequence . . . is that, while . . . it would be conceptually possible for Owen to conduct his time-consuming analysis in a Government facility, Owen would not agree to work on a case like Knellinger's because he could not feasibly move his equipment to, or properly do his work in, a Government facility.

James Griffin. . . .has never moved all of his digital video analysis equipment from his offices to another location, but he calculated such an effort would take more than `several days’. . . Griffin . . . would . . .charge significantly more for his services if he conducted an analysis . . . in a Government facility, even if transportation of his equipment were possible. Griffin testified that, although it might theoretically be possible to bring his own equipment to a Government facility and analyze the child pornography images outside his offices, he would not agree to work on a case like Knellinger's because of the difficulty associated with moving equipment to, and adequately performing his analytical work in, a Government facility.

Knellinger's witnesses established that assessment and presentation of a viable legal defense in Knellinger's case requires expert analysis . . . and qualified experts could not reasonably be expected to agree to conduct the required analysis given the extremely burdensome practical effects of § 3509(m) on the reliable discharge of their obligations. The United States presented no r other evidence to controvert that offered by Knellinger.

U.S. v. Knellinger, supra. So the court ordered that, if and when Knellinger retained Owen and/or Griffin to analyze the images the government intended to use, they would be given a mirror image copy of Knellinger’s hard drive. The court also noted that the “[c]ustody and use of that copy will be subject to an appropriate protective order that . . . will punish any distribution or publication not authorized.” U.S. v. Knellinger, supra.

I don’t understand why that approach can’t be used in all cases. I know federal prosecutors who were unhappy when the Adam Walsh Act went into effect, because they consider it too much trouble to have to arrange to have a defense expert analyze the images at a government facility, especially since they may assign an FBI or other agent to monitor the expert to be sure he/she doesn’t misappropriate anything.

Seems to me that if you could trust protective orders to let defense experts analyze outlawed drugs you could do the same with digital images in child pornography cases. It also seems to me that the impact of the Walsh Act has yet to be felt because, frankly, technology is not yet at the point where virtual child pornography is an empirical reality; once technology gets to the point where virtual child pornography is functionally indistinguishable from the real thing, then it seems to me that the defense’s ability to conduct a sophisticated analysis of the images at issue in a prosecution becomes much more significant than it is now.