Computer Forensics is evolving as we speak. Although the technologies, processes and protocols are much the same, the Legal Issues surrounding the practice, methodologies, perceptions of findings and presentation of evidence in court are changing rapidly.

I do a lot of Criminal Defense work in my practice, in particular, the defense of possession of child pornography on computers. While this may turn many of you off at first, let me say before you go that this is America! The constitution of this great land was set up to help protect us against helter skelter actions of the government, ie; it is better to let 10 guilty people go free than to put one innocent in jail.

I did not specifically choose to do primarily Criminal Defense, in fact I do a good share of civil and domestics on both sides, plaintiff and defense. If you are a Computer Forensic Anlayst, then you know that you must remain at all times objective.

For those whom are still reading this, congratulations! You are an objective person that is interested in the truthful fact finding mission of the judicial system.

My first entry to this blog is one that I feel has uprooted the consititutional right of the defense in a criminal matter to examine the evidence against you in a fair and equal manner. This is an excerpt from the Adam Walsh Act (§ 3509(m)) which was passed on July 27, 2006 -

(1) In any criminal proceeding, any property or material that constitutes child pornography shall remain in the care, custody, and control of either the Government or the court.

(2) (A) Notwithstanding Rule 16 of the Federal Rules of Criminal Procedure, a court shall deny, in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography, so long as the Government makes the property reasonably available to the defendant.

(B) For purposes of subparagraph (A), property or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.

In effect, § 3509(m) creates an uneven playing field by forcing defense attorneys to prepare for trial with highly restricted access to material evidence while the government experts have complete, unfettered access to this evidence. Section 3509(m) directs trial judges to disregard discovery rules and to define the parameters of what constitutes “reasonably available” evidence.

I have first hand knowledge of the ramifications of this act. I used to be able to get the computer evidence, along with a court protective order, and examine and analyze the evidence at will until the case was complete. Now, when I get one of these cases, I must almost always go to the Law Enforcement Agency in control of the evidence and analyze it there. Many times, because they all can make up their own rules about the methodology of the exam, I am unable to use my own equipment and unable to take with me file listings or other data, not including graphic data. Several months later when it comes time for trial, I must rely on my notes, reports and memory, when the prosecutor’s expert can simply revisit his analysis on the actual evidence.

If you are interested in reading the text of this act simply google “Adam Walsh Act” and while you are at it you may google “Rule 16 of the Federal Rules of Criminal Procedure” for comparison.

Let me be clear, I am not for or against child pornography, I am neutral in this case. I can tell you this from personal experience. The Adam Walsh Act began on a Federal level and is now trickling down to the State level. Pretty soon, if you are charged with possession of child porn, you will have no defense at all.