Obtaining the Cloned Copy

CLONED COPY

18 U.S.C. § 3509(m) outlines the prohibition on the reproduction of child pornography. The statute provides that any child pornography must remain under the control of the Government or the court. Notwithstanding Rule 16 of the Federal Rules of Criminal Procedure, “a court shall deny … 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 or material reasonably available to the defendant.”[1] Material is deemed “reasonably available” 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.”

If the material is not made “reasonably available” to the defense, they may file a motion to compel the government to produce an electronic clone or digital copies of the images alleged to be child pornography. This allows an expert witness to obtain a copy of the defendant’s hard drive or other materials so that they can analyze it.

There is also debate over what constitutes an “ample opportunity” to review and analyze the evidence. For example, the Eastern District of California maintains that an “ample opportunity” for forensic examination means the government supplies “reasonably up-to-date tools (hardware and software) and facilities such that a defendant can construct a reasonable, available forensic defense,” permits the expert “to utilize his or her hardware or software,” does not interfere with attorney-client privilege, and is in a facility easily accessible to the defense.[2] District courts have interpreted “ample” to mean “‘generous or more than adequate in size, scope, or capacity.’”[3]

Courts generally deny defendants’ requests for copies of digital evidence in child pornography cases and find that the evidence can be analyzed adequately in a government facility. There are, of course, a few exceptions to this. For example, in a case in which the defense needed a team of experts to analyze video files to determine if they involved real or virtual representations of children, and the conducting the analysis at a federal facility with the necessary equipment would be expensive and time-consuming, the judge ordered that a copy of the defendant’s hard drive be given to the defense team.[4] In another case, when the expert attested that she could not perform all of the forensic processes because of the time limitations and restrictions she encountered, the court compelled the government to provide the expert with a copy of the hard drives so she could analyze the evidence at her own lab.[5] A district court found that even if it is more convenient and accessible for the defense to obtain a copy of the material, as long as the government made the material available in a way sufficient for the expert’s analysis, they cannot be compelled to provide a copy.[6]

[1] 18 U.S.C. § 3509

[2] United States v. Flinn, 521 F.Supp.2d 1097 (E.D. Ca. 2007)

[3] United States v. O’Rourke, 470 F. Supp. 2d 1049 (D. Ariz. 2007) (citing Webster’s New Collegiate Dictionary 39 (1981)); United States v. Knellinger, 471 F. Supp. 2d 640, 645 (E.D. Va. 2007)

[4] United States v. Knellinger, 471 F.Supp.2d 640 (E.D. Va. 2007)

[5] United States v. Jarman, 687 F.3d 269 (5th Cir. 2012)

[6] United States v. Flinn, 521 F. Supp. 2d 1097 (E.D. Cal. 2007)