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AWA Restricts Access to Evidence
How the Adam Walsh Act Restricts Access to Evidence
By Ian N. Friedman, Kristina Walter

On July 27, 2006, the 25th anniversary of the abduction and murder of Adam Walsh,1 President George W. Bush signed the Adam Walsh
Child Protection and Safety Act2 (“Adam Walsh Act” or “Act”). The statute is the most recent addition to the array of legislation and laudable programs aimed at combating child exploitation by dangerous sexual offenders.3 The Adam Walsh Act has received praise for its expansion of the National Sex Offender Registry by incorporating data from state sex offender registration systems and for its grant of additional resources for Internet Crimes Against Children Task Forces. What has received little media attention is the buried provision in the Act that undermines a criminal defendant’s fair trial and due process rights.

The purpose of this article is to examine § 3509(m) of the Adam Walsh Act and how it impedes a defense attorney’s ability to prepare for a trial involving charges of possession of child pornography. The article will examine the rationale for the amendments to 18 U.S.C. § 3509 and will discuss the use of experts in the defense of computer-based child pornography cases. Finally, the article will highlight the legal problems posed by § 3509(m) and comment on current case law, including the pending case of United States v. Knellinger.4

Rationale for the Amendments

The Adam Walsh Act amended § 3509 of Title 18, United States Code by adding subpart (m), which reads 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, in any criminal proceeding, 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 reasonably available to the defendant.

(B) For 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.

In effect, § 3509(m) creates an uneven playing field by forcing defense attorneys to prepare for trial with highly restricted access to material evidence. Section 3509(m) directs trial judges to disregard discovery rules and to define the parameters of what constitutes “reasonably available” evidence.

One reason § 3509(m)’s restrictions on the availability of evidence are so troublesome is the flawed reasoning underlying its passage. The congressional findings in support of § 3509(m) state that “every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse,” and therefore, “it is imperative to prohibit the reproduction of child pornography in criminal cases.”5 What Congress failed to address, or even to consider, is the fact that assuming every viewing of an image does inflict new harm on the victim(s), the harm is the same regardless of where the viewing occurs — be it a government facility or a defense attorney’s private office.6

In United States v. Knellinger, a case pending in the Eastern District of Virginia, defense counsel attacked the constitutionality of § 3509(m) of the Adam Walsh Act. In November 2006, Judge Robert Payne ordered an evidentiary hearing in which defense experts testified about the difficulties created by being required to examine digital evidence in an FBI lab or other government facility. In addition to hearing testimony from defense experts, the court solicited amicus briefs from various organizations.7 At the conclusion of the hearing, the judge aptly summarized the circumstances surrounding the enactment of § 3509(m). He stated:

Congress needs to face things when [they] pass statutes, and the defendants, no matter what the charge is . . . have rights, and here we have a statute that Congress gave no apparent thought to when it passed the statute. . . . This little section was slipped in right at the last minute, according to the chronology, and there’s not a thing to indicate they paid any attention to it. This is serious.8

Experts for the Defense

In order to fully understand the implications of § 3509(m) and how it effects a defendant’s ability to defend against child pornography charges, one must understand the common issues in computer-based child pornography cases and how a defense attorney begins to mount a defense. The two most frequent and critical defenses in computer-based child pornography cases examine whether an image depicts an actual child or a digitally-altered adult and whether the defendant knowingly possessed or received the image.

Whether an image depicts an actual child rather than a digitally-manipulated adult is an important consideration for defense counsel in light of the U.S. Supreme Court’s holding in Ashcroft v. Free Speech Coalition.9 In Ashcroft, the Court held that if an image purporting to depict a minor does not depict an actual minor, the image does not constitute child pornography, and therefore, presumptively receives First Amendment protection.10 The federal statute governing the receipt and distribution of child pornography now sets forth an affirmative defense based on the fact that the alleged child pornography was not produced using any minor(s).11

With respect to whether a defendant knowingly possessed or received
child pornography, attacking the mens rea is critical because knowingly is an essential element of every child pornography charge under 18 U.S.C. § 2252A. Amid the popularity of Internet chat rooms and peer-to-peer file sharing programs, there are a multitude of legitimate ways by which an image of alleged child pornography can appear on a hard drive without the user’s knowledge. Indeed, it is not uncommon for defense experts to uncover that certain images were downloaded onto a defendant’s home computer while he or she was away at work.

The crux of mounting such a defense
, however, is the ability to involve experts in the case from the start. Simply put, computer-based child pornography cases cannot be successfully defended without the aide of experts, which is precisely why the restrictions created by § 3509(m) of the Act are so problematic.

Any comprehensive defense of computer-based child pornography cases must involve a computer forensics examiner and a digital imaging expert. The sole purpose of a computer forensics expert is to determine how an image came into existence on a hard drive or other electronic storage device. A computer forensics examiner can also determine the precise time at which an image appeared on a hard drive and whether a computer user tried to delete the image. To conduct such an analysis, a forensics examiner needs to run software on the hard drive in question.

The two most widely used forensics software programs are EnCase and Forensics Toolkit. Using these programs, a forensics examiner can index data and search a computer for keywords associated with child pornography and hash values. A hash value consists of a unique series of 26 numbers and letters used to identify an image.12 An average computer forensics examination can take up to 50 hours and requires special equipment that only forensics examiners own. Upon completion of a computer forensics examination, the examiner typically collaborates with additional experts, including a digital imaging expert.

A digital imaging expert is necessary to authenticate an image or video, both in terms of its recording and content. With respect to content, an imaging expert may be able to detect the extent to which an image has been manipulated. With ubiquitous software programs such as Photoshop, images of adults can be morphed to such an extent that the images ostensibly portray children. In most instances, whether an image portrays a real or virtual child cannot be determined by the naked eye or even by a photographic expert.13 As an initial step in the analysis, a digital imaging expert may compare the image in question with photos from the National Center for Missing and Exploited Children database. The expert’s primary job, however, is to conduct a frame-by-frame analysis on the image to search for inconsistencies evidencing digital manipulation. Common inconsistencies include conflicting content, distorted scale, imprecise shadows, and discrete pixel edges indicative of cutting and pasting.14

It is important to note that the difficulties created by § 3509(m) are not limited to the realm of experts who rely on electronic equipment to carry out their analyses. Section 3509(m) also presents obstacles for psychiatric and medical experts upon whom defense counsel may call for establishing applicable affirmative defenses and for preparation of sentencing.

An Uneven Playing Field

With an overview of the defenses available and the types of expert analysis required to successfully defend computer-based child pornography charges, it should become readily apparent the extent to which § 3509(m) hinders trial preparation. The goal of this section is to provide an overview of the various legal arguments one can raise when challenging the constitutionality of the provision. Presently, the arguments against § 3509(m) fall into five broad categories: Criminal Rule 16, work product and attorney-client privilege, defense attorneys as officers of the court, due process, and fair trial rights.

Federal Rule of Criminal Procedure 16(a)(1)(E) provides that the government must permit a defendant to inspect and copy information the government possesses if the information is material to the preparation of a defense. In stark opposition to the dictates of Rule 16, § 3509(m) expressly prohibits the copying of evidence material to a defense in child pornography proceedings. To support the restrictions on defense counsel created by § 3509(m), government attorneys regularly rely upon United States v. Kimbrough,15 which declined to find that Rule 16 permits the copying and distribution of child pornography for defendants.

Despite the outcome of Kimbrough, several district courts have reached contrary conclusions. For example, in United States v. Frabizio,16 the court granted the defendant’s motion for production of discovery and held that the defendant was entitled to obtain copies of the images seized in order to enable defense counsel to investigate how and when the images came to appear on the computer.17 This holding is consistent with the Rule 16 Advisory Committee Notes, which explain that “broad discovery contributes to the fair and efficient administration of criminal justice by providing the defendant with enough information to make an informed decision as to [a] plea . . . and by otherwise contributing to an accurate determination of the issue of guilt or innocence.”18 Plainly, by requiring material allegedly constituting child pornography to remain in the control of the government, § 3509(m) frustrates the rules governing discovery and makes it exceedingly onerous to prepare a defense.

In addition to contravening Rule 16, § 3509(m) jeopardizes attorney work product for two reasons. First, if a computer forensics examiner is forced to carry out his examination and analysis at a government facility using government-owned computers, any tests conducted will leave on the computer’s hard drive a roadmap of the examiner’s investigation. Second, as has been pointed out by defense attorney H. Louis Sirkin, when experts are forced to conduct their analyses at a government facility, the government becomes privy to whom defense counsel is working with and the government can anticipate and decipher the direction of the defense strategy.19 In the early stages of the litigation, if the government does not have to reveal the experts with whom it is working, why should the defense? Furthermore, if the government knows that defense counsel has contacted an expert, but does not intend to call the expert to testify, further complications and concerns for the protection of confidentiality arise.20

Another problem raised is that § 3509(m) ignores the fact that defense attorneys are officers of the court. Section 3509(m) implicitly makes an unwarranted attack on the trustworthiness of defense attorneys. The preamble to the Model Rules of Professional Conduct states that “a lawyer is a representative of the client, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.”21 Although a defense attorney exists as an officer of the legal system, § 3509(m) requires material constituting child pornography to remain in the control of either the government or the court. The statute expressly precludes a defense attorney from possessing the evidence.22 Section 3509(m) excludes defense attorneys from possessing material evidence despite the fact that in litigation to date, government attorneys have failed to present any evidence of defense attorneys who have lost or released images of child pornography in circulation.23 In essence, § 3509(m) presupposes that an agent of the government will adhere to a law governing the circulation of contraband more than a defense attorney.

In terms of a defendant’s due process rights, by restricting a defendant’s access to material evidence, § 3509(m) of the Adam Walsh Act creates an uneven playing field. According to the Supreme Court, “[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.”24 By limiting defense counsel’s access to critical evidence and by requiring defense experts to conduct their analyses in government facilities, § 3509(m) creates endless obstacles thwarting trial preparation.

Section 3509(m) transforms trial preparation into a costly and unduly burdensome exercise. Under the current state of the law, if defense counsel wishes to utilize experts, the experts must travel to government offices with fragile equipment not conducive to transport. When an expert’s fees are combined with the fees associated with travel time and the cost of transporting and reassembling equipment, the cost of independent analysis can easily exceed $100,000.25 Experts who testified at the Knellinger hearing in November 2006 indicated that the conditions created by § 3509(m) have caused them to reevaluate their willingness to become involved in defense work for criminal cases.26 An additional burden experts will encounter when they seek to collaborate with other experts is the difficulty of coordinating their schedules to comply with the limited availability of evidence at a government facility. On the whole, the time restrictions and inconvenience imposed by having to work in a government facility make defense work undesirable for experts.

Besides creating obstacles for defense counsel and experts, § 3509(m) makes it exceedingly difficult to have an incarcerated defendant view the evidence. Having the defendant view the images that he or she is charged with possessing is critical since counsel can learn a great deal about whether a client knowingly possessed an image just from the client’s reaction upon seeing it. The client’s reaction often reveals whether the client has previously seen the image. Moreover, having the client view the evidence facilitates a meaningful discussion about the possibility of a structured plea agreement.

Presently, if defense counsel wishes to review the evidence with the client, counsel must arrange for the client to be transported to a government facility. If arrangements cannot be made, defense counsel is forced to forgo this significant element of trial preparation. Assuming arrangements can be made to have the incarcerated client transported to the location of the evidence, defense counsel faces the difficulty
of speaking with a client in an intimidating environment that fosters neither trust nor candor.

The problems created by § 3509(m) continue to multiply after trial has begun. Throughout the course of trial, witnesses testify and strategy changes. For these reasons, any prudent defense counsel constantly wants to consult the evidence, which is not possible under § 3509(m). Even if the government proposes holding the digital evidence at the court in a workroom with late-evening access, it is unlikely that such access will be comparable to that afforded to a defense attorney who possesses a copy of the evidence in his or her own office. Under these conditions, not only is counsel hindered from reviewing evidence, but the likelihood of being able to review the evidence with experts also becomes exceedingly difficult.

A final realm in which § 3509(m) of the Act creates problems is the sphere of Sixth Amendment fair trial rights. Pursuant to the protections afforded by the Sixth Amendment, a defendant may confront witnesses against him and avail himself to compulsory process for obtaining witnesses.27 In analyzing fair trial rights in the case of Kentucky v. Stincer, the U.S. Supreme Court stated that a “rule that precludes a defendant from access to information before trial may hinder that defendant’s opportunity for effective cross-examination at trial, and . . . such a rule equally may violate the Confrontation Clause.”28 Section 3509(m) clearly limits a defendant’s access to material evidence, and as such, undermines the Confrontation Clause. Restricted access to a hard drive or other storage device containing purported child pornography hampers defense experts’ ability to verify the sufficiency of the evidence and integrity of the government’s investigative techniques, which in turn limits defense counsel’s ability to effectively cross-examine government witnesses.

Not only does § 3509(m) infringe upon a defendant’s right to confront witnesses, but it also erodes a defendant’s right to compulsory process. The Compulsory Process Clause enshrines a defendant’s right to present his version of the story — a right that is a critical feature of our adversarial system. “The right to offer the testimony of witnesses, and to compel their attendance . . . is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies.”29 Counsel for a defendant cannot thoroughly prepare a defense under the conditions created by the enactment of § 3509(m). Taking into account the due process considerations discussed above, coupled with fair trial concerns, it becomes clear that § 3509(m) disproportionately impacts a defendant’s ability to defend against computer-based child pornography charges.

Examination of the conflict between § 3509(m) and a defendant’s Sixth Amendment fair trial rights leads to a discussion of United States v. Johnson, the first published opinion to address the constitutionality of the provision.30 In Johnson, the Iowa district court held that § 3509(m) did not facially, or as applied, violate the defendant’s constitutional right to a fair trial.31 The court rested its decision on the notion that § 3509(m) does not limit a defendant’s ability to introduce evidence. According to the court, the statutory provision withstands constitutional attack because it does not limit what a defendant may introduce in trial, but only who may possess the evidence to be introduced.32 What the Johnson court failed to recognize is the fact that who possesses the evidence in computer-based child pornography offenses directly bears on one’s ability to prepare for trial. A defense attorney who does not possess a copy of the hard drive containing the images of alleged child pornography faces a nearly insurmountable obstacle in presenting exculpatory evidence and preparing to cross-examine government experts with virtually unlimited access to the evidence in dispute.

Despite the outcome of Johnson, at the conclusion of the evidentiary hearing in the Knellinger case, the court provided a possible glimpse into its pending ruling on the defense team’s challenge to the constitutionality of § 3509(m). The judge commented that “the statute provides a vehicle by which . . . this whole thing can be dealt with, and that is if the government doesn’t provide ample opportunity for examination, then a copy can be ordered.”33 The court then stated that ample opportunity may perhaps consist of providing a location equipped with all the equipment that the experts would use when conducting examinations at their own offices.34 Forgoing any speculation at this time, the authors will keep the NACDL membership apprised of any developments in the Knellinger matter.

In conclusion, it remains important for defense attorneys to rally against § 3509(m), which appears to be nothing more than a knee-jerk political reaction to a contentious issue presently dominating media attention. Section 3509 ignores the fact that defendants in our justice system are cloaked with a presumption of innocence until proven guilty. Regardless of the heinous nature of charges involving child pornography, defendants are entitled to the fairness inherent in the American legal system.

  1. Adam Walsh is the son of John Walsh, host of the acclaimed show America’s Most Wanted. A stranger abducted six-year-old Adam from a Florida shopping mall. Two weeks later, authorities found Adam’s remains 100 miles away from his home. Following the brutal attack on their son, John and Reve Walsh became advocates for legislation to protect children.
    Pub. L. 109-248, 120 Stat. 587, 629 (July 27, 2006).
  3. Other federal efforts to protect the safety of children include the PROTECT Act, which is most widely known for its expansion of the use of Amber Alerts; Operation Predator, a program aimed at arresting predators; and Project Safe Child, a Department of Justice program aimed at assisting in the investigation of crimes against children carried out by means of the Internet. 2006 U.S.C.C.A.N. S35, 2006 WL 3064686 (Leg. Hist.).
  4. No. 3:06-CR-126 (E.D. Va.). In this case, FBI agents raided the defendant’s home and seized his computer. The government charged the defendant with one count of transportation of child pornography, five counts of receipt of child pornography, and one count of possession of child pornography.
  5. H.R. 4472, 109th Cong. §601(2)(D)(2006). The Supreme Court recognized this principle in New York v. Ferber, 458 U.S. 747, 759 (1982).
    Testimony of H. Louis Sirkin, Evidentiary Hr’g Tr.107: 6-9 (Nov. 6, 2006), United States v. Knellinger, No. 3:06-CR-126 (E.D. Va.).
  7. Briefs were provided by the National Association of Criminal Defense Lawyers, the Federal Public Defender’s Office of Richmond Virginia, and John Douglass, a professor at the University of Richmond School of Law.
  8. Judge Robert Payne, Evidentiary Hr’g Tr. 269: 1-10, supra note 6.
    535 U.S. 234 (2002) (Kennedy, J.).
  10. The image could still be found to be obscene, in which case it falls outside the scope of First Amendment protections and likely constitutes contraband.
    18 U.S.C. § 2252A(c)(2).
  12. The National Center for Missing and Exploited Children maintains a database of hash values for known images of child pornography.
    See United States v. Frabizio, 445 F.Supp.2d 152, 170 (D. Mass. 2006).
  14. For an easily readable overview on some of the technology involved in digital imaging, see Frabizio, supra note 13. The Frabizio decision involved the defense’s Daubert challenge to the government’s digital imaging expert. The court held that the government expert’s methodologies were not sufficiently reliable to withstand the Daubert test.
  15. 69 F.3d 723 (5th Cir. 1995).
    341 F.Supp.2d 47 (D. Mass 2004).
  17. See also United States v. Hill, 322 F. Supp.2d 1081 (C.D. Cal. 2004) (finding that the defendant would be “seriously prejudiced” if his expert and counsel did not have copies of the 1,000 images of child pornography discovered on zip diskettes taken from the defendant’s home).
    Rule 16 Advisory Committee Notes, 1974 Amendments, quoted in United States v. Cadet, 423 F.Supp.2d 1, 3 (E.D.N.Y. 2006).
  19. Testimony of H. Louis Sirkin, Evidentiary Hr’g Tr. 96: 10-14, supra note 6.
  20. Id. at 99: 7-20.
  21. Model Rules of Professional Conduct, preamble (1984). See also Powell v. Arkansas, 287 U.S. 45, 73 (1932) (holding that defense attorneys are officers of the court and have a duty to render service to the accused).
    18 U.S.C. § 3509(2)(A).
    Judge Robert Payne, Evidentiary Hr’g Tr. 263: 10-15, supra note 6.
  24. Chambers v. Mississippi, 410 U.S. 284, 294 (1973), quoted in Brief of Amicus Curiae of the National Association of Criminal Defense Lawyers, United States v. Knellinger, No. 3:06-CR-126, page 7.
  25. See, e.g., Testimony of Thomas Owen, Evidentiary Hr’g Tr. 163-64: 12-5, supra note 6.
    See, e.g., Testimony of Mark Vassel, Evidentiary Hr’g Tr. 58:21-24, supra note 6.
  27. U.S. Const. amend. VI.
  28. 482 U.S. 730, 738 n.9 (1987)(Blackmun, J.), quoted in Brief of Amicus Curiae of the National Association of Criminal Defense Lawyers, supra note 24, at 2. The authors of this article wish to acknowledge the NACDL amicus brief as an invaluable source in formulating a Sixth Amendment fair trial argument in the Knellinger case.
    Washington v. Texas, 388 U.S. 14, 19 (1967), quoted in Taylor v. Illinois, 484 U.S. 400, 409 (1987).
    2006 WL 2796828 (N.D. Iowa Sept. 27, 2006).
  31. Id.
  32. Id. at *3.
  33. Judge Robert Payne, Evidentiary Hr’g Tr. 266-67: 24-3, supra note 6. In a separate matter, United States v. O’Rourke, No. CR 05-1126-PHX-DGC, pending before the district court in Arizona, the Assistant U.S. Attorney expressed agreement with the possibility of the court ordering a copy of the hard drive in question if the government does not afford “reasonable access” in accordance with § 3509(m).
  34. Judge Robert Payne, Evidentiary Hr’g Tr. 269: 20-24, supra note 6. 

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