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Criminal Appellate & Post-Conviction Services

Sixth Circuit Rejects "Defense Expert" Exception to Kiddie Porn Statute

In Doe v. Boland, No. 09--4281 (6th Cir. Jan. 19, 2011) (published). Panel of Judges Sutton, Griffin, and Bertelsman (E.D. Ky.) dealt with the issue about whether federal child-pornography laws exempt those who violate the law in the course of providing expert testimony. In other words, whether there were any implied exemptions for the defense. Defendant had been preparing expert testimony and exhibits for trial. He downloaded stock (innocent) images of minors and morphed them into child pornography. Used images to help his client fight chid pornography charges. Defendant was a lawyer who specialized in tech-related legal issues. He was charged federally and got a deferred prosecution agreement. On top of this action, the parents of the children in the pictures sued the attorney under the civil remedy provisions of the federal child pornography statute. The District Court rejected the civil claims, finding Congress did not intend the law to apply to expert witnesses. Court of Appeals reversed, finding no exceptions. The Court found that the attorney/expert had no basis for denying that he knowingly possessed a computer disk that contained child pornography. This disk had been produced using materials that affected interstate commerce. Lawyer had stipulated that he had downloaded at least four images from the Internet (depicting real, identifiable minors in innocent poses) and then digitally manipulated the images to make it appear that these minors were engaged in sexually explicit conduct. The attorney had issued an apology, admitting “I do recognize that such images violate federal law.” (As part of the deferred prosecution agreement, the attorney had to make a public apology in a bar journal.)The Sixth Circuit found that criminal and civil provisions covered the lawyer's conduct. Relyingon 18 U.S.C. 3509(m), the Court pointed out that "If Congress did not want defense counsel to view, let alone possess, existing child pornography without governmental oversight, it is hardly surprising that Congress opted not to permit expert witnesses to create and possess new child pornography."While the attorney had been authorized by the original district court to present expert testimony on digital-imaging technology, it did not authorize the creation or possession of new child pornography. Here, the interests of real kids were implicated. The Court implied that the attorney could have create non-pornographic demonstrations to show how the technology work.