Discovering child pornography: the death of the presumption of innocence.

• Author: LaRoy, Anna K.

INTRODUCTION

Child pornography cases, by their very nature, create a tension between protecting the child-victim's natural innocence and preserving the defendant's presumption of innocence. It is not surprising, then, that two opposing lines of cases have emerged in a debate concerning whether those accused of possessing or distributing child pornography should be allowed a copy of the sexually explicit materials to be used against them at trial. This Note contends that federal statutory and constitutional laws require such discovery, but not without ensuring adequate safeguards to prevent further harm to the child.

From the murder of an over-sexualized child beauty queen (1) to priest-child sex scandals (2) and international child pornography rings, (3) the news media bombards us almost daily with stories that portray the child as a sexual creature. (4) The media and the public are ready to condemn those accused of child sex crimes well before they have had their chance to present a defense, often before the prosecution even has enough evidence for a formal charge. This trial by media suspicion was at its height in the JonBenet Ramsey murder case, where the media condemned her parents for the murder, but neither were ever indicted in a court of law. (5) In an interview on Larry King Live, a former detective publicly stripped the Ramsey parents of their presumption of innocence. (6) John Ramsey responded with a question of his own: "Why do we have to prove our innocence? ... That is fundamentally contrary to the Constitution." (7)

Unfortunately, there is little that can be done to change this media presumption of guilt. Our legal system, on the other hand, operates from a different philosophy than that of public opinion: a criminal defendant is innocent until proven guilty. (8) Although not explicitly stated in the Constitution, this presumption of innocence is inferred from the Fifth, (9) Sixth, (10) and Fourteenth Amendments (11) and was affirmed by the U.S. Supreme Court as early as 1895. (12) These amendments have led to the creation of expansive discovery laws in criminal cases, implying broadly that counsel for criminal defendants must provide an adequate defense for the accused. (13) Courts must not be swept away by the tendency of the public to condemn one accused of a horrendous crime, such as those involving the sexual exploitation of children, prior to an actual conviction at trial, but should instead keep these principles in mind and afford them the same discovery rights as every other defendant.

Nevertheless, several courts recently appear to have abandoned these discovery doctrines for certain criminal defendants. In a line of child pornography cases beginning with United States v. Kimbrough, some courts have refused to allow the accused and his counsel discovery of the child pornographic materials held by the prosecution, the very evidence that is then presented against the accused. (14) In a legitimate effort to preserve what is left of the innocence of the child-victim, the

innocence presumption for the accused is lost. Other cases, such as Westerfield v. Superior Court, have recognized this breakdown of constitutional protections and have refused to follow Kimbrough's lead. (15)

Child pornography is defined as any "material that visually depicts sexual conduct by children." (16) Furthermore, "[i]t is unprotected by the First Amendment even when it is not legally obscene," meaning that the depictions "may be banned on the basis of their content" alone. (17) Child pornography causes grave harm to the child-victims--more so than other forms of child abuse because the depictions create a permanent record and can cause continuous psychological damage to a child. (18) Recognizing the government's legitimate interest in protecting children from such atrocious abuse, both federal and state legislatures have passed statutes forbidding not only the production and distribution, but also the mere possession of such materials. (19) It is within the protection of this interest that the government seeks to deprive the defendant of his or her right to discovery.

This Note explores these two lines of cases and their constitutional implications. Restricting discovery of such material evidence undermines specific protections under the Constitution and federal discovery statutes, along with the fundamental presumption of innocence. The state does, however, have a compelling interest in protecting the child-victim. The government must produce copies of all material evidence to the defendant, but courts should also implement protective orders that shield the child from further harm.

Part I lays out the essential framework of the cases of Kimbrough, Westerfield, and their progeny. Part II discusses the historical context of child pornography, including First Amendment implications, insomuch as it provides an insight into the perception of those accused of violating child pornography laws, as well as a specific need for allowing the defendant a copy of these materials before trial. (20) Part III considers the rights of the defendant under the Constitution and federal statutes, finding that the refusal of discovery in child pornography cases is a clear invasion of the defendant's rights. Part III also explores why this infringement weakens the presumption of innocence to the detriment of the accused. Part IV then explores the countervailing and legitimate interest in the protection of the child, concluding that, while this interest is quite compelling, it is not furthered by refusing the discovery rights of the accused. Part V applies these principles to the cases at issue, and illustrates a proper constitutional balance that serves to both protect the innocence of children and to preserve the presumption of innocence for the accused.

1. BACKGROUND

   1. Kimbrough and Its Progeny

      In 1995, the U.S. Court of Appeals for the Fifth Circuit faced what appeared to be a novel issue. (21) In Kimbrough, federal agents began investigating a computer bulletin board system that enabled users to download pornography files, including child pornography. (22) Federal agents, having reason to suspect the accused, obtained a search warrant and seized several depictions of what appeared to be child pornography from the accused's computer. (23) The accused was convicted under the Child Pornography Prevention Act (24) for receiving as well as possessing child pornography. (25) The accused claimed reversible error because, during the discovery period, the government refused to allow him a copy of the child pornographic materials used as evidence in his indictment. (26) This refusal, he claimed, violated his constitutional rights to due process and effective assistance of counsel. (27)

      The district court had granted the accused's discovery motion, allowing him a copy of the materials "to the extent that it requested information discoverable pursuant to Federal Rule of Criminal Procedure 16 and the lines of cases stemming from Brady v. Malyland." (28) Rule 16, the federal discovery rule, provides in pertinent part:

      Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense;

      (ii) the government intends to use the item in its case-in-chief at trial; or

      (iii) the item was obtained from or belongs to the defendant. (29)

      In response, the government offered to take the materials to a defense expert witness and to allow the accused to examine the materials at various locations. (30) But the government refused to allow the accused a copy of the materials. (31)

      The Fifth Circuit denied that the government violated Rule 16 when it refused the accused's request for a copy of the materials, reasoning that Rule 16 does not compel the copying for defense of anything considered to be illegal contraband. (32) Because child pornography qualifies as contraband, the government's offer to allow inspection but not copying of the materials was reasonable without a demonstration of actual prejudice to the accused. (33) The accused's assertion that there was inadequate time to review the materials and obtain an expert for trial without a copy was deemed insufficient to show actual prejudice and to rise to a constitutional violation. (34)

      Several state courts and district courts have followed the lead of Kimbrough, restricting the accused's access to the child pornographic materials to mere inspection. (35) Although the cases were procedurally different, each was presented with essentially the identical issue of whether to compel discovery for the defense, which included copying child pornographic materials. (36) These cases insist that "the government [is] under no obligation to turn over the contraband child pornography." (37) More importantly, these cases further affirm that this exclusion of the distribution of contraband can be overcome by a sufficient showing of need by the accused's counsel to provide an adequate defense. (38) This standard, however, is not easily satisfied. Notably, privacy for defense work-product and ability to have the evidence examined by expert witnesses were not found to sufficiently demonstrate a lack of effective assistance of counsel. (39)

   2. Westerfield and Its Progeny

      A countervailing line of cases developed concerning this issue, beginning in 2002 with Westerfield v. Superior Court. (40) With no mention of forbidding the copying of the child pornography as contraband, this case introduces and dispels a new argument. (41) In Westerfield, the police seized "thousands of computer-stored and video images" of alleged child pornography from the accused's house. (42) The trial court then refused the accused's discovery motion to...