Court recognizes that computer experts will not lug their equipment to government offices.
Computer hard drive. (Image from Pacific Northwest Laboratory’s website).
This follows up on my November 27, 2006, blog entry, which said, among other things:
Two technology experts testified in November 2006 in Virginia federal trial court that 18 USCS § 3509(m)’s requirement that computer hard drives in child pornography prosecutions generally only be examined at government facilities, would make it too expensive to transport their equipment to a government facility. Attorney Louis Sirkin — who is a class act and a fellow member of the First Amendment Lawyers Association — testified that the new restrictions will make it harder to find an expert witness for the case. This case is U.S. v. Knellinger, Crim. No. 3:06-cr-00126 (E.D. Va., Richmond Div.). This issue is discussed further here, starting at page 10.
On January 25, 2007, the Knellinger trial judge fortunately agreed to order that the defense expert — when designated — receive a duplicate of the defendants’ hard drive(s) to examine. The court acknowledged that "the practical reality is that computer experts would not agree" to transport their equipment to government facilities to examine computer hard drives there, as opposed to conducting the analysis at the experts’ offices. Consequently, if a hard drive copy were not provided to the defendant, the defendant "ultimately would be prevented from conducting his analysis at all."
My own experience shows the difficulty of finding a qualified expert to examine computer hard drives at a government facility. In working with my favorite computer expert, I learned early on that the equipment to analyze the hard drives is heavy and bulky, and an imposition to transport. Many hours can be required to have the hard drive examined by the analytical equipment, and the expert can use that time for other work in the interim. Consequently, even if a qualified expert could be found to conduct such an analysis, the cost of the expert’s time likely would be economically prohibitive for most defendants.
Here are some practice pointers in working with computer experts in child pornography cases. First, the expert will need a precise duplicate of the hard drive to examine. Work with the expert to put language in the court’s order to assure that the hard drive copy provided to the defense is indeed a precise duplicate. For instance, it is important that original and copy of the hard drive have matching hash values. Second, in analyzing the hard drive copy, some experts may find potentially incriminating evidence (e.g., additional images that might be the subject of additional child pornography criminal counts) that the authorities have not found. Some experts will report that to the authorities; it is critical that such experts be up front about that with the defendant’s counsel before being retained. Jon Katz.