|
|
 Update Express is provided by the National Center for Prosecution of Child Abuse to help child abuse professionals keep abreast of new legislation, case law, and relevant news.
| This publication was prepared under Grant No. 2003-CI-FX-K008 from the Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice. This information is offered for educational purposes only and is not legal advice. Points of view or opinions expressed in this document are those of the authors and do not necessarily represent the official position of the United States Department of Justice, the National District Attorneys Association or the American Prosecutors Research Institute. |
|
Discovery in Child Pornography Cases:
The Impact of the Adam Walsh Child Protection and Safety Act of 2006
The Adam Walsh Child Protection and Safety Act 1was signed into law July 27, 2006 by President Bush, amid much fanfare for some of its more well-known provisions. Tucked away in the bill, though, was a significant provision which resolves a conflict among the circuits regarding discovery in child pornography cases. This legislation will almost certainly be influential on the state level, as well.
Section 504 of the Adam Walsh Child Protection Act addresses discovery in criminal cases2, clearly stating that child pornography cannot be copied in the discovery process:
(2)(A)…[A] court shall deny…any request by the defendant to copy, photography, duplicate, 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)…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…3.
The statute makes this material specifically available to the defendant, defense counsel, and any expert the defendant intends to use at trial.
A frequently litigated issue in child pornography prosecutions is whether or not, in the discovery process, the defense is entitled to (1) copies of child pornography, (2) copies of portable storage devices containing child pornography, or (3) mirror images of hard drives where child pornography is alleged to have been stored. Among the federal circuits, most have come down on the side of United States v. Kimbrough4, the leading case on this issue, which held that “[c]hild pornography is illegal contraband” and found that Rule 16 did not provide for the copying of such images for the defense5. This reasoning has been adopted by the majority of federal courts considering the issue6. Some, however, have held a contrary position7.
Among state courts that have considered the issue, many have concluded that providing such copies is appropriate so long as certain safeguards are taken8. Virginia and California have both codified this position9. These state courts have rejected arguments regarding the illegality of possessing child pornography by defense counsel10 or distribution of the same by the prosecutor11. These decisions have been in the context of immunity from state prosecution, not federal prosecution.
Whatever its lasting effects, Section 504 is certain to move prosecutors forward in their collective effort to stop the spread of child pornography. The change is now definitive on the federal level, and the policy implications can be huge on the state level. In fact, the National District Attorney’s Association recently adopted a resolution to oppose the “copying and dissemination of child pornography during the pre-trial discovery” process12. Why we fight so hard on this issue was summed up best by the Supreme Court: because child pornography, “as a permanent record of a child’s abuse, [its] continued circulation…would harm the child who had participated. Like a defamatory statement, each new publication…would cause new injury to the child’s reputation and emotional well-being."13
- Pub. L. No. 109-248, 120 Stat. 587 (2006).
- Specifically, Fed. R. Crim. P. 16.
- Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006) (emphasis added).
- 69 F. 3d 723 (5th Cir. 1995).
- Id. at 731.
- U.S. v. Horn, 187 F.3d 781 (8th Cir. 1991), U.S. v. Pearson, No. 1:04-CR-340, 2006 U.S. Dist. LEXIS 32982 (N.D.N.Y. May 24, 2006), U.S. v. Flora, No. 1:06CR-8-M, 2006 U.S. Dist. LEXIS 12284 (W.D.Ky. March 22, 2006), U.S. v. Husband, 246 F. Supp. 2d 467 (D. Va. 2003), rev’d on other grounds, Husband v. U.S., 126 S. Ct. 322 (2005), U.S. v. Cox, 190 F. Supp.2d 330 (N.D.N.Y. 2002).
- U.S. v. Cadet, 423 F.Supp. 2d 1 (E.D.N.Y 2006) (contains an excellent model for a protective order within the opinion), U.S. v. Frabizio, 341 F. Supp.2d 47 (D. Mass. 2004), U.S. v. Hill, 322 F. Supp.2d 1081 (C.D. Cal. 2004).
- Cervantes v. Cates, 206 Ariz. 178 (Ariz. Ct. App. 2003), Westerfield v. Superior Ct., 99 Cal App. 4th 994, (Cal. Ct. App. 2002), State v. Kandel, No. A04-266, 2004 Minn. App. LEXIS 933 (Minn. Ct. App. Aug. 10, 2004), State v. Second Judicial Dist. Court, 89 P.3d 663 (Nev. 2004), State v. Butler, No. E2004-00359-CCA-R9-CD, 2005 Tenn. Crim. App. LEXIS 302 (Tenn. Crim. App. March 30, 2005); but see State v. Ross, 792 So.2d 699 (Fla. 2001).
- CAL. PENAL CODE §1054.10 (Deering 2006) (disclosure permitted if the court allows it “after a hearing and a showing of good cause”), VA. CODE ANN. §19.2-270.1:1 (2006) (duplication permitted on a finding that it is “necessary and material to the defense”).
- See Butler, 2005 Tenn. Crim. App. 302, at *33 (“the possession…of child pornographic materials does not constitute a violation of Tennessee’s…statutes so long as it occurs in the context of the prosecution or defense of a case under the statute.”).
- See Kandel, 2004 Minn. App. LEXIS 933, at *9.
- "Child Pornography and the Courts", Resolution of the Board of Directors of the National District Attorneys Association (adopted July 30, 2006).
- Ashcroft v. Free Speech Coalition, 533 U.S 234, 249 (2002).
|
|
|
|
|
