CP and Witness Liability

Doe v. Boland, No. 09--4281 (6th Cir. Jan. 19, 2011) (published). Panel of Judges Sutton, Griffin, and Bertelsman (E.D. Ky.).

Issue: "do the federal child-pornography laws exempt those who violate the law in the course of providing expert testimony?"

Defendant had been preparing expert testimony and exhibits for trial. He downloaded stock (innocent) images of minors and morphed them into CP. Used images to help his client fight CP 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 CP statute. Dist ct rejected the civil claims, finding Congress did not intend the law to apply to expert witnesses. Court of Appeals reversed, finding no exceptions.

The attorney, the Court found, had no basis for denying that he knowingly possessed a computer disk that contained child pornography, which 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 criminal and civil provisions covered the lawyer's conduct.

Citing 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 CP. Here, the interests of real kids were implicated.

Immunity did not apply.

Minimum $150,000 in damages was one of the things at stake.

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