7th Circuit: defendants have no constitutional right to child porn evidence
A unanimous 7th Circuit panel has issued a ruling In U.S. v. Shrake, No. 07-1790 (7th Cir. Feb. 6, 2008). The court upheld provisions in the Adam Walsh Child Protection and Safety Act (18 U.S.C. § 3509m - text reprinted below) that restrict a criminal defendant’s right to discover child pornography evidence in the prosecution’s possession. The court observed:
Shrake’s challenges to §3509(m)—a statute that no other court of appeals has encountered—rest on the unstated assumption that the Constitution creates a right to pretrial discovery in criminal prosecutions. The Supreme Court has held, however, that defendants are not constitutionally entitled to discovery. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977); Gray v. Netherland, 518 U.S. 152, 168 (1996). It is accordingly hard to see how limits on discovery could be unconstitutional—and impossible to see how a statute that qualifies its limit with a requirement that the evidence be “reasonably available to the defendant” before trial (§3509(m)(2)(A)) could be invalid . . .
Shrake’s lawyer did not ask the prosecutor to provide a better forensic-analysis computer or particular software for his expert’s use; he decided to challenge the statute “on its face” and thus lost any opportunity to make use of the “reasonable availab[ility]” clause that dooms any facial challenge.
For more perspective on this issue from a criminal defense lawyer’s point of view, see this article in the Feb. 2007 Champion Magazine the magazine of the the National Association of Criminal Defense Lawyers: How the Adam Walsh Act Restricts Access to Evidence.
The text of the statute in question is reprinted in the opinion as follows:
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The Adam Walsh Child Protection and Safety Act, Pub. L. 109-248, 120 Stat. 587 (July 27, 2006), added 18 U.S.C. §3509(m) to the Criminal Code. It provides:
(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.