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Discovery Changes In Sexual Exploitation of a Minor Charges?

Sex crimes is a broad description of different types of sex crimes. One of those crimes is the sexual exploitation of a minor. It is basically possessing child pornography. The Tennessee State Legislature is working on a law that could restrict or limit a criminal defense attorneys access to the evidence. A copy of the bill can be found here.

I was interviewed on this issue by WSMV's Carly Gordon today. Here is a link to the interview. At first, I didn't think the proposed law was a big deal. It mirrors the Adam Wash Act that was adopted in the federal system in 2006. The act provides that no images of any child are copied or disseminated to any criminal defense lawyer. it sets out that any property or material that constitutes child pornography shall remain the care, custody, and control of the government. See 18 U.S.C. Section 3509(m).

After carefully reading the proposed new law, the issue may become what the government has to disclose. From the language of the bill, the court shall prohibit the copying of anything related to the sexual exploitation of a minor. Under the wording of the new law, expert reports of the computer could be withheld from defense counsel. Access to a computer forensic examination could be stonewalled. If there needs to be a state statute, mirror the federal statute. Discovery in criminal cases needs to be expanded not limited. From the cases, I have been involved with, I did not sense a problem that needs to be addressed. The big question is who decides what evidence is allowed to be copied. Certainly not the images, but a forensic report must be disclosed and a copy be provided. Here are some more questions;

  • What does reasonably available mean?
  • Does the work at a state facility afford the defense a zone of privacy to prepare its case?

There are a host of other issues involved. I would suggest the legislature rethink the bill and should read the Adam Walsh Act to understand some of the problems a poorly worded bill may create. The legislature has seen fit that punishment of sexual exploitation of a minor is severe. It is important to keep in mind the duty of the government in providing the accused the evidence it intends to introduce at trial.