THE NATIONAL JUDICIAL COLLEGE

Transcription

1 THE NATIONAL JUDICIAL COLLEGE E DUCATION I NNOVATION A DVANCING J USTICE DISCOVERY, INCLUDING OF CHILD PORNOGRAPHY IMAGES & THE IMPACT OF THE ADAM WALSH ACT DIVIDER 1 Professor Michael Johnson OBJECTIVES: After this session, you will be able to: 1. Describe how limitations on criminal discovery restrict defense access to child pornography images in government custody; and 2. Describe the challenges to those approaches and the case law developments. REQUIRED READING: PAGE Michael Johnson, Limiting Discovery of Child Porn Images (May 2011) [NCJRL PowerPoint]...1 SI: TECHNOLOGY ASSISTED CRIMES AGAINST CHILDREN: INVESTIGATIVE TECHNIQUES AND PRETRIAL MOTIONS MAY 19-20, 2011 RENO, NV WB/KZ

2 Michael Johnson Counsel for National Programs Copyright 2010 National Center for Justice and the Rule of Law All Rights Reserved After this session, you will be able to: Describe how limitations on criminal discovery restrict defense access to child pornography images in government custody Describe the challenges to those approaches and the case law developments 1

3 Federal statute: 18 U.S.C. 3509(m) Pre-3509(m) discovery Defense challenges and the response State court applicability Protective Orders relying on 3509(m) Alternative Protective Orders Part of Adam Walsh Act (2006) Prohibits reproduction of child pornography in criminal discovery Separate from federal criminal discovery rule (Rule 16, FRCrP) 2

4 In any criminal proceeding, any property or material that constitutes child pornography [as defined by federal law] shall remain in the care, custody, and control of either the Government or the court. 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 under federal law], so long as the Government makes the property or material reasonably available to the defendant 3

5 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 p or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial. Imperative to prohibit reproduction to avoid repeated violation/abuse of victims. CP is contraband per se and should not be distributed to, or copied by CP defendant or attorney. Recognize e scope of CP problem. Recognize compelling interest in protecting kids by stamping out the vice of CP at all levels of distribution chain. Every time a CP image is viewed = a repetition of original abuse. 4

6 Brady and its progeny Federal Discovery Rules Court Sanctioned Restrictions to Discovery Brady and Giglio require disclosure of evidence favorable to defense Rule of disclosure, not production One way street 5

7 Discovery of inculpatory evidence is governed by statutes and court rules. Requires production A two-way street Permit inspection and copying or photographing of books, papers, documents, data, photographs, within government possession, custody or control if It is material to defense or Government intends to use it in case-in-chief or It was obtained from or belongs to defendant 6

8 Court can order discovery Moving party must show denied, restricted, deferred, good cause May be ex parte make other appropriate order Favoring protective orders restricting access to government facility US v. Kimbrough, 69 F.3d 723 (5 th 1995). US v. Horn, 187 F.3d 781 (8 th 1999). US v. Husband, 246 F. Supp. 2d 467 (ED VA 2003). Florida v. Ross, 792 So.2d 699 (FL. Ct. App. 2001). 7

9 Child pornography is illegal contraband. Wedeclinetofindthat(FRCP)Rule16 provides such contraband can be distributed to, or copied by, the defense. [E]veniftherewasaRule16violation [t]he [] Government s offer to make the materials available for inspection but not to allow them to be copied was reasonable. Refusing to restrict access to government facility: US v. Hill, 322 F. Supp. 2d 1081 (C.D. CA 2004). US v. Fabrizio, 341 F. Supp. 2d 47 (D. MA 2004). US v. Cadet, 423 F. Supp. 2d 1 (E.D. NY 2006). Cervantes v. Cates, 76 P.3d 449 (AZ 2003). 8

10 Ake v. Oklahoma, 470 U.S. 68 (1985) Does the restriction in 3509(m) violate the Due Process Clause? Right to effective assistance of counsel. Right to present a defense and confront evidence against, including right to assistance of expert. Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. California v. Trombetta, 467 U.S. 479, 485 (1984) 9

11 All found 3509(m) facially constitutional U.S. v. Shrake, 515 F.3d 743 (7 th Cir. 2008) U.S. v. Johnson, 456 F. Supp.2d 1016 (N.D. IA 2006) U.S. v. Spivack, 528 F. Supp.2d 103 (E.D. NY 2007) U.S. v. O Rourke, 470 F.Supp.2d 1049 (D. AZ 2007) U.S. v. Sturm, 560 F.Supp.2d 1021 (D. CO 2007) U.S. v. Flinn,, 521 F.Supp.2d 1097 (E.D. CA 2007) U.S. v. Doane, 501 F.Supp.2d 897 (E.D. KY 2007) U.S. v. Knellinger, 471 F.Supp.2d 640 (E.D. VA 2007) Ample opportunity Due Process 10

12 Defendant argued: 3509(m) assumes that all government agents are trustworthy and that no defense experts or attorneys can be similarly trusted; Fundamental fairness not met because he was disadvantaged in that he could not fairly utilize the tool of expert knowledge since his expert would not have same access as government. Citing U.S. v. Schultz, 431 F.2d 907 (8 th Cir. 1970). Due process requires that indigents be provided services of experts to conduct appropriate examinations and to assist in preparation and presentation of defense. Right is not without limit. May have to bow to other legitimate interests. t 3509(m) proper balance. 11

13 Case by case determination. Doane, 501 F.Supp.2d at Flinn, 521 F.Supp.2d at O Rourke, 470 F.Supp.2d at Knellinger, 471 F.Supp.2d at 645. Court rejected facial and as applied Due Process challenges. But on record made, court found that inspection and access at government facility not reasonable. Defendant intended to pursue Ashcroft defense. Expert needed specialized equipment not available at site; substantially increased costs. Couldn t bring equipment to site without serious risk of damage. 12

14 Does Knellinger swallow the rule? See, Flinn, 521 F.Supp.2d at 1102 Challenges Knellinger findings. Defense experts raised no concern about access specific to that case. Mere preferences to use own equipment. Knellinger permitted experts to manipulate result by positing conceptual difficulties. 18 U.S.C. 3509(m) binds Federal courts only. Does not preclude state court from ordering discovery. E.g., State v. Allen, 2009 WL (TN Ct. Crim. App. 2009) 18 U.S.C. 3509(m) does not apply to proceedings in Tennessee state courts. Trial court s protective order requiring provision of a copy was reasonable and appropriate. 13

15 Mississippi Code (Laws 2008) Texas Code of Criminal Procedure Articles & (effective Sept. 1, 2009) State v. Boyd, 158 P.3d 54 (S. Ct. WA 2007) State v. Bowser, 2009 WI App 114 (Ct. App. 2009) State v. Brady, 894 N.E.2d 671 (S. Ct. OH 2008) State v. Wells, 2007 WL (MN Ct. App. 2007) (unpub) 14

16 Bring own equipment. Allow defense to: Schedule at their convenience if possible. Offer to transport the evidence to them. Offer to not monitor expert s access and analysis (when working from copy). Search before and after examiner enters secure room; obtain certification s/he has not copied, etc. If 3509(m)-style order is to be denied Consider detailed alternative protective order US v. Hill, 322 F. Supp.2d at US v. Cadet, 423 F.Supp.2d at 4-5. State v. Boyd, 158 P.3d at

17 Limited Access Expressly specify who has access to evidence. Limited Distribution Counsel/expert not to provide evidence to anyone not specified in order. Limited Use To be used directly in connection with defense in this case only. Maintained by counsel/expert in a secure manner with access logged. Images shall not be printed, copied (digitally it or otherwise), destroyed, erased or altered. Any computer into which evidence disk or HD is inserted shall not be connected to Internet or to any computer network. Copy of order must remain with all copies of evidence. Defendant not to view images without additional express order of Court. Any person with access must sign statement they have received order, read it and will comply. Evidence to be returned to court/government upon completion of case. Any person with access must certify in writing they have complied with order. 16

18 District Court denied defense request for a copy of digital it evidence, relying on 3509(m) Government provided its retained expert an unrestricted copy of the evidence. 7 th Cir. criticized government, citing Wardius v. Oregon, 412 U.S. 470 (1973) Would have reversed and ordered retrial with equal access if defendant had sought it commercial CP images Images of child molestation by Defendant. Citing Boyd, Protective Order approach required 3509(m)-style approach can be used because evidence of purposeful possession, downloading, or viewing by Defendant doesn t matter. 17