Computer Crime Research Center


Defense access to child porn evidence at issue

Date: April 04, 2008

CONCORD – Police and prosecutors criticized a portion of a bill that cracks down on child pornography, saying it would give defendants access to their illegal photos even after they've been arrested.

The Online Child Safety Act, backed by Gov. John Lynch and Attorney General Kelly Ayotte, carries tougher penalties for those who create, distribute or possess child pornography, and for using the Internet to solicit children to engage in lewd behavior. Those who solicit victims under 13 face enhanced sentences of up to 20 years in prison. A second conviction of creating child pornography can bring up to life in prison.

The Senate bill, SB 495, reflects defense lawyers' concerns about access to evidence. A Senate committee changed wording that said courts "shall not" give copies to the defense before trial, to say that upon request, "the court may authorize" their release.

Portsmouth police Detective Michael Leclair, who works on the Internet Crimes Against Children task force, said releasing such evidence would be a mistake.

"Once we make a copy and hand it over, we lose all control of it," Leclair said. Any computer used to review images, which could be stored on a thumb drive or DVD, would create a cache on its own hard drive that could later be tapped and viewed just like the original image, he said.

House Criminal Justice Committee Chair Rep. William Knowles, D-Dover, said the House may have to adopt something close to the Senate version if the bill is to survive.

Ayotte suggested a change so that anyone viewing the material before trial would have to sign a non-disclosure agreement. She'd also require that the material be kept in locked storage. But she warned, "we need to be incredibly careful with these images."

Cases in Pennsylvania and Wyoming showed that police arrested convicted pornographers for having images from their first offense, which they had been given during pre-trial work.

The bill does not refer to child pornography by name, but describes it as "child sexual abuse images."

Ayotte said that whether they are involve teens, pre-teens, toddlers or infants, "These are images of real children being abused."

Lynch testified in favor of the bill, saying the state needs to get tough with online sex crimes because "the damage they do to our children lasts a lifetime."

The House also needs to address the bill's definition of a child as being under age 16.

The House already passed bills this year, now in the Senate, which define a child as under age 18.

NH Defense Lawyers Association president Michael Iacapino pointed out a problem regarding computer-generated images. To be constitutional, the bill needs to make it clear that pornography portrays a real person, not images that have been created by pasting pieces of other photos together or through other computer manipulation.

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2008-04-06 19:19:50 - If released, would these photos then be... Tony
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