There’s a recurrent discovery issue in child pornography cases. Generally, it goes like this: the defendant is arrested and charged with a child pornography offense. The prosecution contends that the defendant’s computer contains images of child pornography. The defendant retains a computer expert to examine his computer, hoping to show that the images were downloaded inadvertently, or were downloaded by someone else. The expert requests a copy of the defendant’s hard drive so that the expert can analyze it. The prosecution refuses to provide a copy on the grounds that doing so would amount to distributing child pornography to the expert, so the defendant files a motion asking the court to order the prosecution to provide a copy of the hard drive.
In federal cases, there is a statute that guides the resolution of this issue. Under 18 U.S.C. § 3509(m), “a court shall deny . . . any request by the defendant to copy, photograph, 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.” Evidence is “reasonably available” 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.” The statute has been upheld against a variety of constitutional challenges. United States v. Shrake, 515 F.3d 743 (7th Cir. 2008); United States v. Spivack, 528 F.Supp.2d 103 (E.D.N.Y. 2007) (collecting cases).
Litigation has focused on what constitutes an “ample opportunity” to review and analyze evidence. Among the leading opinions in this area is United States v. Flinn, 521 F.Supp.2d 1097 (E.D. Ca. 2007), which states:
An ample opportunity to forensically examine seized computer items means an examination whereby the government can supply reasonably up-to-date tools (hardware and software) and facilities such that a defendant can construct a reasonable, available forensic defense, if one is available at all, and whereby the analysis will not be impeached because it was not supported by the proper hardware or software. An ample opportunity will permit a defense expert to utilize his or her hardware or software. An ample opportunity also requires that the analysis be performed in a situation where attorney-client privilege and work product will not be easily, accidentally exposed to the government, and in a facility which is open to the defense at its request during normal working hours, and to the extent feasible, during non-working hours.
I am aware of only one published case in which a court has ruled that the government failed to give the defense team “ample opportunity” to analyze the defendant’s computer. In United States v. Knellinger, 471 F.Supp.2d 640 (E.D. Va. 2007), a defendant argued that he needed a team of experts to analyze video files on his computer to determine whether the files involved real children or virtual representations of children. The defendant’s experts testified that conducting the analysis at a federal facility would involve a week of moving fragile and expensive equipment and a cost of over half a million dollars. Based on the defendant’s showing and the specific facts of the case, the judge ordered that a copy of the defendant’s hard drive be given to the defense team, pursuant to a protective order. Aside from Knellinger, however, courts have generally denied defendants’ requests for copies of digital evidence in child pornography cases, finding that such evidence can be analyzed adequately in a government facility.
But that’s federal court. Section 3509(m) doesn’t apply to state cases: it refers to the Federal Rules of Criminal Procedure and describes the prosecution as the “Government.” State v. Allen, 2009 WL 348555 (Tenn. Ct. Crim. App. Feb. 12, 2007) (unpublished) (“Section 3509(m) does not apply to proceedings in Tennessee state courts.”) Nor is there any other specific statutory provision in North Carolina concerning how child pornography should be handled in discovery.
That leaves us back at square one. Under the general provisions of G.S. 15A-903, images or videos alleged to contain child pornography clearly count as “matter[s] or evidence obtained during the investigation” of the child pornography defendant, and so are presumptively available to be copied by the defense. Yet some prosecutors worry that copying such evidence violates state and federal child pornography laws. What to do?
I’ll start by suggesting that the concern about violating the law by distributing child pornography during discovery may be a bit overblown. By that reasoning, the prosecutor in every child pornography case violates the law by possessing the child pornography, and the prosecutor violates the law during every child pornography trial by distributing the child pornography to the court clerk, the judge, and the jurors. Likewise, the prosecutor in a drug case would be liable for possessing the drugs introduced as evidence, and for distributing the drugs to the clerk during the trial. I assume that there’s an implicit “official duty” exemption that would preclude prosecution in such circumstances, and I’m not aware of a single prosecution based on similar facts.
Nonetheless, I can understand a prosecutor not being enthusiastic about making additional copies of child pornography. (And frankly, if I were a defense lawyer, I wouldn’t be too excited to receive them. Consider United States v. Flynn, __ F.Supp.2d __, 2010 WL 1782157 (D.S.D. Apr. 28, 2010), where an attorney being prosecuted for possessing child pornography claims that he possessed the images in connection with his work.)
The solution, it seems to me, is to move for a protective order under G.S. 15A-908, which allows a court, upon a finding of “good cause,” to enter any appropriate order regarding discovery. Presumably, the court’s discretion includes the authority to enter an order along the lines of what section 3509(m) requires in federal court: that the defendant be given “ample opportunity” to inspect and analyze the digital evidence at a law enforcement facility, but not be given a copy, absent special circumstances that require the making of a copy in a particular case. Although I’m not aware of a North Carolina case on point, cases in other states have generally recognized some discretion to limit defense access to child pornography. Cf. State v. Brady, 894 N.E. 2d 671 (Ohio 2008) (proper to limit defense access to child pornography evidence to the state’s computer system); State v. Bowler, 772 N.W.2d 666 (Wisc. Ct. App. 2009) (court has the discretion to order copying or to forbid it). But cf. State v. Johnson, 2010 WL 1424369 (Ariz. Ct. App. Div.1 Apr. 8, 2010) (unpublished) (affirming dismissal of charges after defendant provided valid reasons for needing a copy of the digital evidence yet the agency with custody of the evidence refused to produce it). It may be useful to think of digital evidence of this type as analogous to controlled substances seized from the defendant — the defendant should be granted reasonable access to drug evidence for the purpose of analysis and testing, but need not be allowed to take the evidence off the premises of a law enforcement facility. As an aside, the SBI, and probably many other law enforcement agencies, have facilities designed for defendants to use to review digital evidence in privacy.