Category Archives: Post-Indictment Strategy
In most cases, the defense will want to acquire a mirror image of the hard drive. Of course, the State will strongly resist this. In New Jersey, the Appellate Division in State v. Cohen ordered the State to produce the hard drive for the defense. Unfortunately, this was an unpublished decision. However, in State v. Boyd, 160 Wash. 2d 424, 158 P.3d 54 (2007), the court suggested that the failure to provide the defendant with a mirror image of the hard drive for independent testing by a defense expert would violate the right to effective representation and a fair trial. Although a state case, Boyd is worth reviewing.
If any attorneys have cases from any jurisdiction on this topic, please leave a comment below and I will include the case law on this issue so that all lawyers can have access to same.
One possible solution is to replace the contraband files with dummy files. The problem here is that this will not create an exact replica of the drive as any addition or deletion of files may change other aspects of the drive. Both parties would have to consent that this redacted version of the drive is still an accurate representation so that any conclusions derived therefrom by the defense experts cannot be challenged on this ground. If any attorneys have tried this approach, please leave a comment below with your experiences.
It is very important to review the child pornography evidence as soon as possible. This is truly the worst part of a criminal defense attorney’s job. It is the mark of a true professional to look at some of the worst images and videos anyone can ever see but it is important to review them carefully. While I seriously doubt that you will run into a case where most or all of the alleged child pornography will be borderline, that possibility does exist. The more common scenario in my opinion is that the State will let a couple of borderline images/videos slip in. Since the defense attorney will likely not get an opportunity to take these images/videos back to the office, it is important to take detailed noted.
It is much easier to look at images than videos. However, if the case does involve videos, the attorney will want to view as much of them as possible. Clearly, sitting there watching hours of child pornography may be impossible to stomach but the prosecutor is usually good about allowing the defense attorney to fast forward through the video. You really need to get a sense of how graphic the video gets. The notes taken from this examination will eventually form the basis for a May hearing and a motion in limine.
In some jurisdictions like New Jersey, most child pornography prosecutions are the result of large sweeps where dozens of people are arrested at once. These sweeps usually have fancy names such as operation something or another. This presents a number of problems as well as opportunities. While the other defendants are not technically co-defendants, the case will usually function like a typical case with multiple co-defendants who cannot flip on each other. That is, the plea offers will largely be consistent across the board. This makes it difficult to negotiate your individual case as you may be stuck with the standard plea offer absent an extremely strong defense case.
However, this also gives you an opportunity to speak with fellow defense lawyers to coordinate defenses. In large child pornography operation, the defense attorneys set up an online forum to discuss the various defense issues. Unfortunately, this type of mutual cooperation is rare as it takes the right set of attorneys to fight for their clients instead of taking the lazy way out.
Regardless of the level of mutual cooperation, it pays to keep track of what your co-counsel is doing. What motions are they filing? What is the State’s response? How did the trial go? What games did the State try to play? What worked for the defense and what didn’t? As you can see, being the last to go to trial can put you at a huge advantage.
I have used this strategy to get a preview of the State’s trial techniques and was very successful in combating them. It appears that the prior attorney was caught off guard and as a result, he had no response to the State’s arguments.
There are rarely a large number of civilian witnesses in a child pornography case. Nevertheless, there are occasions where there are some that may be very important. These can include the defendant’s household members, co-workers, employees of a business, etc. Not all of these witnesses may be mentioned in the police report. Some will require creative thinking and investigation on your part and some may come from your client. For example, did your client buy the computer off of someone else? Did someone else see the defendant use the computer? Who else had access to the computer? You cannot assume that the State will nail all of this down. In fact, they often don’t.
Best practice is to have a private investigator do most if not all of the interviewing. Care must be taken to find a really good investigator that knows how to ask the right questions to get the right answers. Then all of this needs to be memorialized in either a taped or written statement. I try not have the attorney present for most of these interviews but the attorney should be available by phone so that the interview is thorough.
Be sure to check local discovery rules to determine when and if these statements need to be turned over to the State.
This is what separates the all star attorneys from the amateurs. Let’s face it, most of the good criminal defense attorneys have more than two decades of experience under their belt which means that they grew up without computers. Unless they received some education since then, chances are they don’t know much about computers let alone computer forensics. How could the attorney then properly defend the client? The answer is that they probably can’t. In fact, I once spoke with an attorney who said that he doesn’t even know how to turn on a computer only to find out a few weeks later that he was representing someone charged with a child pornography offense. Its sad really because I am sure that information is never given to the client up front. Clients probably assume that if a lawyer is willing to take the case, they know what they are doing. That couldn’t be father from the truth.
Thus, in order to attack the forensics you have to know the forensics. Otherwise, the State’s expert will walk all over you. Without a proper challenge, the jury may be mesmerized by their testimony and the defense attorney will seem powerless to stop them. In order to take control of a witness, the defense attorney needs to demonstrate to the witness that he/she knows how to walk the walk and talk the talk. I have not only studied computer forensics, I have actually lectured on the subject. Thus, I know how to call the witness out on their BS when I spot it.
If you don’t have the ability or the time to teach yourself computer forensics then the defense attorney should hire an expert or a fellow lawyer to consult with. Preferably the expert/consultant will be hired before trial to help formulate a strategy but will also be present at trial to listen to the expert’s direct testimony to help formulate last minute cross examination questions. If the expert will not be called as a witness, this shouldn’t be a problem. However, if the expert witness will be called as a witness permission must be sought to break the sequestration order.
Like any witness, the best way to destroy an expert witness is to show lack of credibility and failure to perform a complete investigation. Not to sound like Yogi Bera, but most experts know what they know and nothing more. They develop a certain script. If you can lead them off script into other areas that they are not expecting they may absolutely nothing about it. Again, this is where knowledge of computer forensics really comes in handy. Since you never want to ask questions you don’t know the answer to, you don’t want to start questioning the expert about issues outside of their report unless you are confident that those issues cannot harm your case. If you can get the expert to admit that they don’t know about that file and/or that issue or they didn’t look into it, you can seriously damage their credibility.
Also keep in mind that the State may try to introduce this witness as a fact witness and not an expert. Nevertheless, the witness will still testify as an expert. This creates a number of evidence issues. A motion in limine and/or a request for a 104 hearing well in advance of trial should be strongly considered.
Finally, you will want to focus on all of the areas of the hard drive that the expert did not look at. Chances are they did not go through every last piece of data. This is where you’re expert/consultant can come in really handy. You will want to draft your cross examination questions very carefully using the funnel approach to avoid stepping in it.
Any criminal defense attorney knows that a vast majority of criminal defense cases involve some sort of statement made by the defendant with most of them being classified as an admission. Too many criminal defense attorneys see a confession as an insurmountable hurdle. I disagree. I have been able to take a child pornography distribution case to trial with a confession and still get a not guilty verdict. Like anything else, its all in how you spin it.
Clearly, you will want to attack the statement in almost any case. Its much better to work with a blank slate. When the defendant makes any type of statement, even one that would not be considered a confession, the defense is often boxed into a certain set of facts. Thus, in every case where the client makes any type of statement, a Miranda motion should be filed. Most motions result in a hearing and this is a good opportunity to see how the defendant will stand up to cross examination if there is any thought to putting him/her on the stand. Even if the defense attorney wants the statement to come in, filing the motion helps create appealable issues in case of conviction.
Of course, if the statement is entirely self serving, the State may not bring it into trial unless the defendant testifies to the contrary. If the statement is helpful, it is doubtful that this will occur anyway. Even though the statement will not come in for this reason, it should be brought out that the client made the statement through the officer that took it. When the defendant testifies, he/she should be asked at the end if everything he/she said was consistent with what they told the officer (it should be!). In summation, the attorney should then argue that the statement (and therefore the defense) is credible because it was made before an attorney was involved and was not adequately challenged by the State.
There is an entire body of law on Miranda so I will not go into same here. However, from prior success I can add a few tips. Instead of just focusing on the readings of the rights themselves, defense attorneys should look at the motion in terms of the big picture. What is the atmosphere surrounding the questioning? What is the tone of the police? How long does it go on for? Do the police wear down the defendant? Does the defendant break? What is the body language. Be sure to describe, in detail, what the video shows so that you can make a crystal clear record. Even though the judge will see the video, paint the picture ahead of time.
If the statement does come in, then the entire defense must be built around it. This will often focus the entire defense case on the issue of knowingly, I.e did the defendant knowingly distribute the child pornography?
It is not my practice to hire an expert in every child pornography case. However, there may be a number of scenarios where an expert will be helpful. Perhaps the best scenario is where the defendant did not make a statement and there were multiple people that had access to the computer. Of course, there are many others. So as to not tip off the State, I am not prepared to detail how to use the expert in that scenario or any others. Instead, I will save same for my direct representation of clients or my consulting work. Needless to say, there is a lot to consider before rushing into this decision.
The first consideration is whether you are going to use the expert at trial or to just consult with. Keep in mind of course that if you are going to use the expert at trial, you will have to disclose this report to the State which will give them a huge advantage. Besides getting a better idea as to your trial strategy, they will be able to patch the holes in their case. Thus, you need to decide if you want to tip your hand or keep everything up your sleeve.
Another consideration is whether you think that you can get the State to back down if you blow a big hole in their case. Some prosecutors are willing to move forward to trial even with a very weak case. Others are more reasonable and will negotiate if their case starts to crumble. It really pays to know your prosecutor.
Another consideration is cost. Can your client really afford a computer expert and legal fees for trial? Unfortunately, not everyone can and thus, deciding how and when you will utilize your client’s limited budget it very important. There is no point in getting an expert for trial if the client can’t afford your trial fee!
I think too many criminal defense attorneys read a police report and decide that the case is hopeless and therefore the case should end in a guilty plea. Too many attorneys appear to be scared to go to trial for any number of reasons. Of course, many clients do not want to pay for trial which causes great problems. It appears to me that some attorneys charge low trial fees knowing that the case will never go to trial. Thus, when they hear my trial fee, they will choose the other lawyer thinking they are getting a better deal. Since they are never going to trial anyway, this promise is an illusory one.
I think most of these child pornography cases should go to trial and the discovery should be examined accordingly. The rules of evidence need to be considered. Attorneys should make a clean copy of the discovery and a working copy. The clean copy should be filed away for future use. The working copy should be torn apart with a black magic marker. Hearsay and other inadmissible evidence needs to be blacked out from all reports. Once that is done, you will be surprised with how little is left in the report. In the end, the officer will not be able to say much.
Besides hearsay evidence, also look for prejudicial evidence. I was able to remove about a third of a client’s statement due to an aggressive motion in limine. The State fought hard and assured me that the entire statement would be coming in. In the end, I was able to keep out almost every word that I requested. This put my client in a much better light.
As is my practice in every criminal case, additional discovery is requested. Almost without fail, I have been presented with additional discovery at or shortly before every trial I have ever been involved in. Thus, a broad and creative discovery request should be filed with the State to ensure that there is nothing else out there.
A motion to dismiss the indictment is one of those motions that should be filed more often but it isn’t. Yes its difficult to win, but its the one motion that can be filed in any case. Just like the lottery, you have to be in it to win it. The starting point to consider filing this motion is to review the grand jury CD. Thanks to modern technology, the days of paying $100 for grand jury transcript and then waiting 30 days to get it are long gone. Today, the grand jury CD is easily obtainable and in some counties, they just give it to you whether you want it or not! These CDs should play in a car CD player and most presentations are much less than an hour in length. Therefore, there is no reason not to listen to them.
Of course, the more helpful CD will be where the police officer gets to talk freely. A more skilled prosecutor which essentially cross examine the officer in an effort to get only yes or no questions. This makes the testimony less useful for trial.