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By Tami Loehrs
March 11, 2022
If you work on cases involving the sexual exploitation of children, then you are likely familiar with the Adam Walsh Child Protection and Safety Act.
In a world that seems to be engulfed in conflict and pain, I think there is one thing most of us can all agree on. The loss of a child is something no parent should ever have to endure and the Adam Walsh Act endeavors to save other parents from enduring such an egregious tragedy.
The act’s provisions fall under four categories: sex offender registration, child protective grant procedures, the punishment of sex offenders and those who victimize children, and amendments to criminal and civil procedures as they relate to sexual crimes against children.
It is the last provision that warrants judicial scrutiny and a discussion with some fresh eyes on the realities the act has created. Are we protecting our children at the cost of violating our own constitutional rights?
When a client is charged with distributing and/or possessing child exploitation material, the instant reaction is typically one of disgust. One of the only crimes where guilt seems to tip the scales in everyone’s mind. Innocent until proven guilty is off the table because nobody believes anyone could have such offensive material on their computer, phone, iPad and not know about it. And that assumption is not only terrifying, it is erroneous.
Let’s assume for a moment that your client is actually innocent. That they have no knowledge of the material for which they are being charged. That they are entitled to a defense regardless of the heinous nature of the crime they allegedly committed. Consider the possibility that law enforcement might be wrong, that the investigation may be incomplete or sloppy or that the prosecutor is overzealous because this is a crime against children and they will do anything to protect the children.
Perhaps the most important step in properly defending your client is to review the evidence against them. In a murder investigation, you might have witnesses, fingerprints, footprints, blood, fibers, hair, a murder weapon and most importantly a dead body. These are all tangible things that can be examined by the defense in determining your client’s innocence or guilt.
In a computer investigation, things get complicated. The evidence is digital and a lot less tangible. You can be shown a photo that was extracted from your client’s computer and confirm the legality of the content. But you have no idea how that photo got onto the computer, who put it there, done on purpose or by accident, and whether your client had any knowledge the material was there. The only information you have is provided by those who want to convict him.
You must do your due diligence, so you hire a digital forensics expert to review the evidence against them because you cannot make an informed decision on how to defend without this step.
Sec. 504 of the Adam Walsh Act prohibits the reproduction of child sexual exploitation materials by a defendant in a criminal proceeding; places such materials in the care, custody, and control of the government or the court, and requires that such materials be reasonably available to a defendant and the defendant’s attorney or expert witness for inspection, viewing, and examination.
It has been established by numerous state courts throughout the country that a Protective Order satisfies the requirement of this section. But that would allow the defense expert to have as much access to the evidence as the government. As such, the government has adopted their own interpretation of this section to mean the defense can only examine the evidence at a government facility, under the government’s own individual, unregulated and uncontrolled rules and restrictions. It is these limitations that can cost an innocent client their freedom.
The Adam Walsh Act specifically states that the materials be reasonably available to the expert witness for inspection, viewing and examination. Unfortunately, reasonably available has no clear legal definition and means something very different to a digital forensics expert than it does to a prosecutor or a judge who know nothing about digital forensics.
Limited Access
When law enforcement seizes your client’s digital devices pursuant to a search warrant, they bring those devices back to their forensics lab where they have unfettered access to the evidence, state of the art equipment and unlimited resources.
The first thing they do is make a forensic copy of that evidence. So, unlike blood or DNA evidence, a digital forensics expert’s analysis is always performed on a copy, leaving the original protected in the care and control of law enforcement.
After copies are made, the government’s experts use those unfettered hours, often for months, to look for illegal images, affirmation that your client used the computer and anything else that might support their allegations against the defendant. That’s typically about it.
They are not looking for evidence relevant to the defense and they certainly are not looking for exculpatory evidence. They are not looking at how the images got there – which is often involuntary – or who may have put them there – often not the accused. They are not looking for other people who used the computer, the possibility the computer was on an open network, or that it was hacked, used as a Bot, or that viruses and Trojans played a part, just to name a few.
And yes, these are all valid and proven reasons for having such material on a computer or other digital device unbeknownst to the accused.
The government is also not examining the evidence to determine if it was properly seized or properly handled and those can also be important issues to your client’s case.
The evidence pertinent to the defense, including exculpatory evidence, is often hidden or deleted and may require extensive forensic processes to extract that data. Those processes can take weeks and sometimes months to run and require sophisticated equipment and software. As such, the examination of the evidence by the defense expert often requires far more time than the government’s examination because they are looking for so much more than the government. They are examining all of the other possibilities that may prove your client had no knowledge of the material for which they are accused.
In the expert’s own lab, this extensive and complex examination is not a problem. But the reasonable access provided at a government facility is vastly limited and frequently insufficient leaving the proof of your client’s possible innocence unobtainable.
Let’s face it, good experts don’t just grow in your back yard, so travel is often necessary and comes with additional costs and time concerns. Travel is often plagued with delayed and canceled flights, adverse weather conditions, traffic and other unavoidable occurrences that can take a toll on the reasonable access to the evidence and your client’s budget. Obstacles that would never be realized if the evidence was sent to the defense expert’s own forensics laboratory.
The agencies that host these examinations are vastly different. At times they are cooperative and other times they are not. But there is nothing in the Adam Walsh Act setting forth any requirements or parameters to protect the rights of the defendant in this regard, whether innocent or guilty.
Sometimes the allotted hours for the defense exam are 9 to 5, sometimes 10 to 4, but never the hours required to conduct an examination of this magnitude.
Sometimes the expert is required to leave for two hours in the middle of an exam for an office party, come in late or leave early because the agent has to pick up their child from daycare or has a dental appointment.
Sometimes the expert is forced to leave the building for a fire drill.
Sometimes the agent is stuck in traffic and your expert waits in the cold for an hour biding their time until they are finally granted access to the evidence.
Sometimes the agent simply forgot about the scheduled exam so the expert is sent away, losing an entire day or the entire exam.
And these are just a few of the hurdles that have actually occurred, over and over again, when attempting to do your due diligence as a defense expert.
This may all sound inconsequential, but the result of this game playing is serious. It is not about pouting over unfair conditions or a lack of convenience, it severely affects the already limited time required to conduct a proper and thorough examination for the defense, which may be the difference between proving the client’s innocence or sending them to prison for 20 years for something they may not have done.
Even when the hours of access are sufficient, some agencies require that the expert be “babysat” during their examination, meaning the agent who was responsible for setting the case in motion is the same person sitting with the defense expert as they conduct their work. I can’t think of any other criminal matter where the accuser is permitted to oversee the defense of the accused.
Sometimes the agents ask questions while they sit in the room and watch the defense examination. Your client is guilty so what are you looking for? How can you defend a child pornographer? What’s it like working for the dark side? How much money do you make? I am planning on retiring soon, are you hiring? But my personal favorite is, “this is a complete waste of time and taxpayers’ money to sit here with nothing to do but monitor you while you watch child porn.” As defense experts, we wholeheartedly agree that it is a complete waste of time and money to be observed while conducting a scientific analysis of the evidence. Not to mention a complete lack of privacy and protection of work product.
Sometimes the defense expert is not permitted to leave until the agent has reviewed their data which includes the expert’s work product. And almost always, the evidence needs to process at their facility overnight leaving them with unfettered access to the defense expert’s entire examination while the defense expert is absent.
This is not meant to be accusatory, it’s merely to point out the informal and inconsistent approach to the defense examination, letting each agency or agent to decide on their own rules. Of course, none of these issues exist if the evidence were simply sent to the expert’s forensics lab.
But there is little recourse for the defendant because the Adam Walsh Act does not address the reality of analyzing digital evidence at a government facility. Time is precious, money is limited and the inclination to squabble over these procedural issues is not a priority for most attorneys and judges so the examinations are conducted as more of a triage than a thorough and proper examination.
Think of it like receiving a three-car garage full of bankers’ boxes and you are given only one day to manually look through each box to find the smoking gun evidence. And only you. There is no staff to assist you. You know it’s impossible, but you have to try.
Maybe you locate those boxes with the relevant date range, or notice labels on boxes that might be related to your client, so you look through those first. Perhaps you find some documents that lead you to believe the smoking gun is definitely in one of these boxes somewhere, but you will need more time to find it.
Now imagine your day is cut short because there is a party in the garage from eleven to two or the garage keeper has to leave early for a doctor’s appointment and you are not permitted to stay, so now your search is over. Or you had to travel across the country to the garage and when you arrive it’s locked because they forgot you were coming.
This may sound absolutely ridiculous, but this is exactly what is happening when defense experts are required to conduct digital forensics examinations under restrictive conditions that go unregulated and unchecked.
And while the government likely has no concern for what it costs your client to defend themselves, all these issues waste an inordinate amount of time and money and sometimes your client just runs out of financial resources to keep fighting. But sometimes those costs are being paid by indigent defense and CJA which means it’s the taxpayers incurring the additional financial burden of this mishandling of justice.
Limited Resources
When a defense expert is required to conduct their examination at a government facility, it is not just time that’s not on their side. They are typically required to use the government’s resources as well. That means no access to the defense expert’s own forensics equipment, specialty software, staff and other resources amassed for years that are pivotal to their analysis. Now the government is in complete control of the caliber and quantity of resources available to the defense expert.
Because most attorneys and judges have no idea what is required to conduct a forensics examination, just as most of us have no idea what goes into rocket science, these issues are often not worth addressing in their minds. But to the forensics examiner, this may be the difference between proving your client’s guilt or innocence. And to us it is of the utmost importance.
Imagine asking a brain surgeon to conduct their work in a conference room because it has good lighting, a large table, an electrical outlet, paper napkins and metal utensils used for lunch meetings. Given no other alternative to save their patient they must try. But the casualties will likely be high.
This is tantamount to asking a forensics expert to conduct a thorough examination of the evidence under the constraints required by the government. Most people understand the requirements of a surgeon while very few understand the needs of a forensics expert. Just as none of us would ask a surgeon to work under such conditions due to the potential loss of life, asking the forensics expert to work under these conditions also results in the loss of lives.
It has been argued in court that the defense expert is being offered the same access as the government’s experts because the examination is being conducted at their “trailblazing facility” with “state-of-the-art resources.” This sounds very convincing to anyone who is not conducting the examination.
In reality, the defense expert is conducting their examination in a conference room, an interrogation room with windows and cameras, a basement, an empty office, a supply closet or other available space in the same building as the trailblazing lab, with no access to the actual lab or its state-of-the-art resources touted by the government.
Some facilities provide adequate equipment, and others provide equipment so antiquated it can’t even run the forensics software necessary to conduct the most basic examination. And this is a real problem when the exculpatory evidence is unobtainable due to these imposed restrictions.
Conclusion
The intention of the Adam Walsh Act is to provide protections for children. It is not meant to deny defendants their constitutional rights when the accusations involve the sexual exploitation of children. Regardless of how disgusting the crime, a defendant is still supposed to be considered innocent until proven guilty. But how do you prove a person’s innocence if you can’t even get to the exculpatory evidence?
Anyone representing a client who has been accused of a crime involving child sexual exploitation material must also remember that the accused still has a constitutional right to due process. These words are an assurance that the government must operate within the law and provide fair procedures. But there is nothing fair about the manner in which defense experts have been required to conduct their professional and scientific work when child exploitation materials are involved and the government should not have unchecked power.
This needs to change, and the resolution is simple. In fact, it has been adopted by numerous states in the land of the free since the Adam Walsh Act was enacted. And it’s working.
Provide a forensically sound copy of the evidence to the defense expert, to be examined in their own lab, with their own resources, and include a Protective Order from the Court that sets forth the parameters for handling such material.
Or, as an alternative, change the language to make it clear that a Protective Order is all that’s needed for the defendant to have equal access, not “reasonable access.”
Of course, this type of sensitive material should not be given to just anyone. The world of digital forensics is relatively new and we need experts to be vetted so this type of material does not get into the wrong hands. A digital forensics expert should have some form of formal background check such as a private investigator’s license to ensure they have no criminal history or other factors that would affect their professionalism. The expert should be educated, experienced and working for a reputable company, registered with the Federal government, including a business address so material is not being sent to a private residence.
So, the question remains, if states can send evidence to the laboratory of a qualified digital forensics expert for analysis, why can’t the United States government follow the same procedures? One has to wonder if the reason is simply to deny defendants their due process because the material for which they are accused is so offensive they no longer have rights, whether guilty or innocent.