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| Electronic Evidence Case Digest – Search Results |
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United States District Court,
D. Arizona.
UNITED STATES of America, Plaintiff,
v.
Kevin D. O'ROURKE, Defendant.
No. CR 05-1126-PHX-DGC.
Jan. 17, 2007.
Jurisdiction: United States District Court, D. Arizona Date: 1/17/2007 Keywords: Computer Forensics, Constitutionality, Discovery, Experts, Procedure Defendant was charged with possession, receipt, and transportation of child pornography and filed a discovery motion requesting a copy of his computer hard drive containing the alleged child pornography. The court denied the defendant’s motion.
The prosecution denied defendant’s request for a copy of his hard drive citing the Adam Walsh Child Protection Act of 2006 (“Walsh Act”) or 18 U.S.C. § 3509(m). The Walsh Act prohibits the government from releasing child pornography to defendants charged with child pornography offenses as long as the government makes the evidence reasonably available for inspection and examination for a defendant’s lawyers and experts at a government facility. The defendant filed a motion arguing that the Walsh Act contradicted Federal Rule of Criminal Procedure 16, and violated his due process rights; furthermore, the defendant argued that the statutes, under which he was indicted, were unconstitutionally overbroad and vague. The court concluded that the defendant’s argument regarding the Federal Rule 16, which states that a defendant has a right to inspect evidence in the prosecution’s possession, was without merit. The court stated that Congress has clear authority to pass legislation that overrides federal court rules. Next the court examined whether the Walsh Act on its face comports with due process jurisprudence. The court determined that the act would pass constitutional muster as long as it gave a defendant the same access to materials that is required by due process. The court looked at the language of the statute which requires the prosecution to give the defense “ample opportunity.” The court stated that the plain meaning of the language requires that the prosecution give the defense “generous or more than adequate in size, scope, or capacity” access to the evidence. The court said this definition was consistent with a defendant’s due process guarantee to a fair opportunity to defend himself and to be free from arbitrary or disproportionate restrictions on his right to confront witnesses and present evidence. The court noted that if the prosecution failed to give the defendant “due-process-level access” to the evidence, then it must give the defense a copy of the evidence. In this particular case, the court concluded that the prosecution had given the defense ample opportunity to examine the evidence. The prosecution allowed the defense and its experts to examine a copy of the defendant’s hard drive in a private office, and it allowed the defense experts to bring their own computer as long as they agreed to delete any child pornography from their computers after completing their analysis. In its motion, however, the defense argued that its experts were not allowed private access to the Internet which was necessary to complete their analysis and that the experts were given a copy of the hard drive infected with malware. The court determined that these problems resulted from a lack of communication and that the defense should have tried to resolve these problems with the prosecution outside of court. In addition, the defense raised several other potential problems with examining the hard drive at a government facility; for example; the defendant claimed that the prosecution could view the defense experts’ work product by analyzing the government computer used to conduct analysis of the evidence, defense counsel and experts would be prevented from speaking freely at a government facility, and it would be unduly costly for defense counsel and experts to travel to the out-of-state government facility. The defendant also presented testimony from a Virginia case (U.S. v. Kenllinger) in which the experts testified that the cost of examining evidence at a government facility, which would require them to move sensitive equipment, would be so costly that they would not agree to work a defendant’s case in such circumstances. The court concluded that these problems were not present in defendant’s case because his experts were allowed to bring their own computers and given a private office in which they could work; furthermore, the court noted that inconvenience alone was not enough to show that the defendant’s right to due process was violated. With regards to the defendant’s claim that sections of 18 U.S.C. §§2252 and 2256 were unconstitutionally overbroad and vague, the court ruled that the statutes were not overbroad or vague because they required the prosecution to prove that the images depicted a real child and that the defendant knew the images depicted minors.
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other organizations. |
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