An Interesting Child Porn Opinion in Ohio

Last week, I was in North Carolina and gave a talk about the Adam Walsh Act and possible challenges and defenses to prosecutions under the Act.  One of the issues that is really interesting is the fair trial concerns raised by the Act's limitations on the defendant's access to child pornography evidence.  I really don't know how this area of law will evolve as many tricky problems will emerge because of this Amendment to 18 USC 3509(m):

Section 3509 of title 18, United States Code, is amended by adding at the end the following:
(m) Prohibition on Reproduction of Child Pornography-
`(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.'.

While I was in North Carolina, I spoke of a few potential problems with the Act's limits.  One of the issues that has already begun to be litigated is the use of expert's to establish a "virtual" child pornography defense.  That is, a defendant may argue that the images are not of actual children.  Instead, they were either images of adults made to look like children or were created entirely by digital means.  An expert in such a case needs to do an extensive analysis of the evidence and may not easily be able to do so while the government controls the evidence.

So what does this have to do with Ohio?  Well, a helpful reader sent me a recent opinion in an Ohio case that shows the difficulties the Adam Walsh Act will create.  While the case itself wasn't under the Act, the parallels are pretty clear:

{¶37} At the hearing, it was suggested that Boland could review the materials at issue in Brady’s case at the prosecutor’s office. This suggested solution would still not permit Boland to create exhibits for trial. Additionally, Boland testified that he uses certain software in his analysis that the prosecutor’s office does not have. Also, even though he would be in the prosecutor’s office, it could be argued that he “received,” albeit temporarily, child pornography in violation of Sections 2252(a)(2)(A) and/or 2252A(a)(2), Title 18, U.S.Code. Another of Boland’s concerns was visiting websites where the allegedly illegal images may have originated. He believed he could still be subject to federal prosecution for conducting illegal internet activity at the prosecutor’s office. This belief was legitimate in that Sections 2252(a)(2)(A) and 2252A(a)(2), Title 18, U.S.Code prohibit receiving any images of child pornography that have traveled in interstate or foreign commerce, “including by computer.” Finally, Boland testified regarding his concern that he would not be able to record any of his work at the prosecutor’s office for fear of federal prosecution, therefore, he would have to memorize his entire analysis of possibly hundreds of images for his trial testimony. Upon consideration of Boland’s testimony, the trial court concluded that viewing the images at the prosecutor’s office was not a viable solution. We agree.

{¶38} What occurred in this case was obviously troubling to the trial court. It would be akin to the following hypothetic situation, where a defendant is charged with possession of cocaine. The defendant contends the substance in question is baking soda. Pursuant to R.C. 2925.51(E), the defendant seeks to have an independent analysis of the substance. When the defendant’s expert laboratory analyst receives the substance, the FBI seizes the substance and threatens to indict the analyst on federal narcotics charges. Obviously, that analyst is not going to want to receive another sample of the purportedly illegal substance and risk further prosecution. Moreover, in light of these circumstances, it is extremely doubtful that another analyst would risk federal prosecution and prison time for the purpose of assisting the defendant. Thus, the defendant is left without his constitutional right to the assistance of an expert to defend against the charges.

These issues have yet to be litigated at the federal level, but I'm sure it is only a matter of time.  And the results will surely push the envelope of when a defendant is guaranteed access to the evidence against him or her.

Comments

[Gideon]

Hmm, independent testing of the alleged illegal substance to aid in a defense constituting a crime.

Technically, this is probably true, but how zealous would you have to be to prosecute?

Using that rationale, wouldn't anyone who "possesses" an illegal weapon, used as evidence in trial be guilty of the crime of possession of an illegal firearm?

[Steve]

I suppose this result could have been anticipated when the Supreme Court ridiculously suggested that virtual child pornography is protected speech.