State v. BoydState v. Boyd
¶ 1 This case involves the extent to which defense discovery of child pornography evidence may be restricted under Criminal Rule (CrR) 4.7 in child sex offense prosecutions. These consolidated cases involve direct review of discovery orders by two Pierce County Superior Court judges. In neither case does the State argue that access to the images should be denied; its claim is that the defendants’ attorneys are not entitled to copies of the evidence. In State v. Boyd, the trial court denied the request for copies, with the State retaining sole possession of a computer hard drive and other photos and evidence and permitting access only at a state facility at times convenient to the State. In State v. Giles and State v. Wear, the trial court granted the defendants’ request for copies, subject to protective orders. We reverse the order in Boyd, and affirm the orders in Giles and Wear.1
FACTS
State v. Boyd
¶ 2 The Pierce County prosecutor charged Michael Boyd with 28 crimes involving five victims. Some of these victims are allegedly depicted in hundreds of images seized by the State. In addition, the State claims to possess, on a computer hard drive, tens of thousands of “commercial” images of unidentified minors engaged in sexually explicit conduct; images that were recovered from a computer or storage devices allegedly owned by Boyd. 10/10/06 Report of Proceedings (RP) at 40. At least 11 of the counts are supported by this evidence, stored on the computer hard drive. Supp. Br. of Pet‘r, App.; Supp. Decl. for Determination of Probable Cause. Boyd‘s defense counsel moved to compel the State to provide a “mirror image” of the hard drive to enable independent testing by a defense expert.
¶ 3 Judge Larkin denied the motion, reasoning that Boyd had “no right to unlimited access to evidence,” as would presumably result from a copy, only “reasonable access.” The trial judge suggested the request was not material, stating that the defense was “asking for everything . . . because we don‘t know what the evidence is going to show.” 10/10/06 RP at 36-37. Judge Larkin entered an order allowing defense counsel to access a mirror image of Boyd‘s hard drive, but only in a State facility, during two sessions, and only through the State‘s operating system and software. State‘s Consolidated Supp. Br., App. B-C. Under the terms of the order, defense counsel, the defense investigator, a defense expert, and Boyd would be permitted “a substantial amount of time” to view the images, after which the drive would be returned
State v. Giles and State v. Wear
¶ 4 Lee Giles and Maureen Wear are charged as codefendants. Each is charged with many crimes including possession of child pornography. The State alleges that 21 videotapes belonging to Giles and Wear depict them engaged in criminal acts against children. At least 12 of the counts charged against Wear are allegedly supported by evidence in seven videos. Clerk‘s Papers (CP) at 105-06. At least 16 of the counts against Giles are allegedly supported by video evidence. CP at 60-61. The tapes are not in digital format and some were allegedly created by Giles and Wear. There is no suggestion that the videos ever existed in digital form on a computer. Police also recovered photographs and magazines that support charges of possession of child pornography. Among the evidence was child pornography that Giles, a former Pierce County police officer, apparently obtained from the sheriff department‘s evidence locker.
¶ 5 Giles moved under
ANALYSIS
¶ 6 The first issue in dispute is which section of CrR 4.7 applies under these circumstances. The defense argues that
¶ 7
(a) Prosecutor‘s Obligations.
(1) Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting attorney shall disclose to the defendant the following material and information within the prosecuting attorney‘s possession or control no later than the omnibus hearing:
. . . .
(v) any books, papers, documents, photographs, or tangible objects, which the prosecuting attorney intends to use in the hearing or trial or which were obtained from or belonged to the defendant;
¶ 8 The State argues that
(e) Discretionary Disclosures.
(1) Upon a showing of materiality to the preparation of the defense, and if the request is reasonable, the court in its discretion may require disclosure to the defendant of the relevant material and information not covered by sections (a) [Prosecutor‘s Obligations], (c) [Additional Disclosures Upon Request and Specification] and (d) [Material Held by Others].2
¶ 10 Having addressed
¶ 11 CrR 4.7 does not define “disclose.” But the general usage of “disclose,” the policies underlying the rules, and the provisions of CrR 4.7 indicate that “disclose” includes making copies of certain kinds of evidence.
¶ 12 The principles underlying CrR 4.7 require meaningful access to copies based on fairness and the right to adequate representation. The discovery rules “are designed to enhance the search for truth” and their application by the trial court should “insure a fair trial to all concerned, neither according to one party an unfair advantage nor placing the other at a disadvantage.” State v. Boehme, 71 Wash.2d 621, 632-33, 430 P.2d 527 (1967). Under
¶ 13 We have recognized the policies underlying CrR 4.7 and indicated what facts must be revealed for disclosure to be meaningful.
““In order to provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protections of persons,
effective law enforcement, the adversary system, and national security.” ”
State v. Yates, 111 Wash.2d 793, 797, 765 P.2d 291 (1988) (emphasis added) (quoting Criminal Rules Task Force, Washington Proposed Rules of Criminal Procedure 77 (West Pub‘g Co. ed.1971)). To deny access to copies does not accord with these policies.
¶ 14 Courts have long recognized that effective assistance of counsel, access to evidence, and in some circumstances, expert witnesses, are crucial elements of due process and the right to a fair trial. The Fifth Amendment to the United States requires that prosecutors make available evidence “favorable to an accused . . . where the evidence is material either to guilt or to punishment.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Sixth Amendment right to effective assistance of counsel advances the Fifth Amendment‘s right to a fair trial. That right to effective assistance includes a “reasonable investigation” by defense counsel. See Strickland v. Washington, 466 U.S. 668, 684, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); In re Pers. Restraint of Brett, 142 Wash.2d 868, 873, 16 P.3d 601 (2001). It also guarantees expert assistance if necessary to an adequate defense. State v. Punsalan, 156 Wash.2d 875, 878, 133 P.3d 934 (2006). Supporting the right to effective representation,
¶ 15 These rights illuminate the substance hinted at by the definition of “disclose.” “[D]isclosure” is defined as “[t]he act or process of making known something that was previously unknown; a revelation of facts.” Black‘s Law Dictionary 477 (8th ed.2004). Yet obviously, the revelation of facts must be meaningful, harmonizing with the right to effective assistance, in order for defense counsel to play the role described by the court in Strickland:
That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel‘s playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.
466 U.S. at 685, 104 S.Ct. 2052 (emphasis added). Where the nature of the case is such that copies are necessary in order that defense counsel can fulfill this critical role,
¶ 16 Giles and Wear involve situations where copies are necessary. The culpability of the acts depicted may vary based on when the photos or films were taken, by whom, and what they actually display. Defense counsel must consider these and other defenses in reviewing substantial quantities of evidence. In Giles and Wear, at least 16 and 12 of the counts, respectively, are supported by evidence contained on 21 videotapes. In Boyd, several hundred images allegedly depict criminal acts involving known victims; tens of thousands allegedly involve unknown victims. Preparation will likely require revisiting the evidence many times before and during trial. In these cases, the evidence is either in the form of photos or tapes or images on a computer hard drive. No distinction is made under
¶ 17 In Boyd, given the nature of the evidence, adequate representation requires providing a “mirror image” of that hard drive; enabling the defense attorney to consult with computer experts who can tell how the evidence made its way onto the computer. Forensic review might show that someone other than the defendant caused certain
¶ 18 Preparation may require lengthy access even where there are few images. See United States v. Frabizio, 341 F.Supp.2d 47 (D.Mass.2004) (defense expert needed to reconstruct government expert‘s work). The need for copies may flow also from constraints on experts such as access to the necessary tools and sufficient time. See United States v. Hill, 322 F.Supp.2d 1081, 1091-93 (C.D.Cal.2004) (distinguishing the demands of narcotics analysis from that of zip disks), aff‘d on other grounds, 459 F.3d 966 (9th Cir.2006). These concerns are relevant to Boyd, where the forensic expert intends to use particular diagnostic equipment from his lab and must review tens of thousands of images from potentially disparate sources.6
¶ 19 Judge Larkin erred in denying copies to Boyd, evidently as a result of analyzing Boyd‘s request under
¶ 20 To require this showing is to ignore the inherent materiality of the disclosure mandated by
¶ 21 Having established the scope of
¶ 22 The provision for protective orders in
¶ 23 In cases such as these, safeguarding the interests of the victims requires conditions that account for the ease with which the evidence can be disseminated. The defendant should be allowed access to the evidence only under defense counsel‘s supervision. Defense counsel is personally and professionally responsible for any “unauthorized” distribution of or access to the evidence. Access by non-counsel must be preceded by court order. The evidence must be secured and inaccessible to anyone besides defense counsel. The evidence must be promptly returned at the end of the criminal proceeding. Access may only be for purposes of the action. Any order should also prohibit the making of additional copies, require that a copy of the order be kept with the evidence, bar its digitization, and obligate the defense to pay the reasonable cost of duplication. It is also appropriate to require a firewall between the Internet and any computer used to access the protected materials during its inspection, to return the evidence if representation is terminated, and to clear any computer used in the examination of this evidence of its traces before that computer is accessible for other purposes. Judge Worswick‘s order included most of these provisions.
¶ 24 The unrebutted declaration in amicus brief of WACDL describes additional safeguards taken by at least one computer forensic firm. Amicus Br. of WACDL, App. A at 17-18. These include asking the government to provide serial numbers for copies, wiping hard drives on completion of the case, having law enforcement verify the data‘s destruction, and providing a report to the court affirming that the data was destroyed. Its policies include never making copies of the evidence and keeping media in digitally secure safes.
¶ 25 Judge Worswick‘s order also safeguards the defendant‘s interests. The order gives defense counsel the opportunity for ongoing access before and during trial. It allows for access by consulting experts, investigators, or other defense staff and permits defense counsel to involve the defendant in reviewing the evidence.
¶ 26 Though this case focuses on the criminal rules and protective orders, these echo an attorney‘s professional responsibilities, including a requirement that material coming into the attorney‘s possession be utilized only for the limited purpose or purposes of client representation.7 The criminal rules provide the right to discovery of materials and evidence relative to the criminal charges and proceedings. The responsibilities that inhere in the rules provide additional safeguards that limit the use of such materials. And the imposition of additional protective conditions appropriate to evidence, such as involved in these cases, underscore the attorney‘s responsibility to safeguard the evidence in a way that protects the victim‘s interests in limiting the use of this type of evidence to only those purposes necessary to effectively represent the client.
¶ 27 The State adds an argument that copies enhance the risk of annoyance or embarrassment to the victims. A risk of annoyance or embarrassment is an attendant consequence of trial. See Dreiling v. Jain, 151 Wash.2d 900, 93 P.3d 861 (2004) (involving business‘s confidential documents); In re Det. of Campbell, 139 Wash.2d 341, 355-56, 986 P.2d 771 (1999) (addressing defendant‘s privacy interest); Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wash.2d 205, 214, 848 P.2d 1258 (1993) (risk of trauma and to child‘s privacy in sexual assault case). To try the defendants almost necessarily means this evidence will be presented in open court, referenced in the examination and testimony of witnesses, and discussed in opening and closing statements. We can address this risk
¶ 28 Finally, the State argues that providing the defendants with copies of the materials sought would constitute sexual exploitation of children contrary to
CONCLUSION
¶ 29 With a restrictive protective order, copies can be maintained in a manner that protects the interests of the victims while ensuring defense counsel the opportunity to adequately prepare. We affirm the orders in Giles and Wear. We reverse the order in Boyd; Boyd‘s counsel should be provided a mirror image of the hard drive and copies of the other evidence subject to an appropriate protective order. We remand to the trial courts for further proceedings.
WE CONCUR: Chief Justice GERRY L. ALEXANDER, TOM CHAMBERS, SUSAN OWENS, BARBARA A. MADSEN, MARY E. FAIRHURST, RICHARD B. SANDERS, and BOBBE J. BRIDGE, JJ.
J.M. JOHNSON (dissenting).
¶ 30 The plain language of criminal rule (CrR) 4.7(a) does not require that the State provide the defense with copies of the evidence it intends to use at trial. Rather,
A. CrR 4.7(a) Requires Notice and Access, Not Copies
¶ 31 The majority correctly concludes that the main provision governing access to intended
Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting attorney shall disclose to the defendant the following material and information . . . any books, papers, documents, photographs, or tangible objects, which the prosecuting attorney intends to use in the hearing or trial. . . .
¶ 32 The term “disclose” is not defined in CrR 4.7 or elsewhere in the rules, so reference to its dictionary definition is appropriate. The dictionary provides that to “disclose” means “to expose to view . . . to make known.” Webster‘s Third New International Dictionary 645 (2002). Thus, the rule‘s plain language requires the State, at least, to inform defense counsel of the existence of materials it intends to use at trial. See State v. Penn, 23 Wash.App. 202, 204, 596 P.2d 1341 (concluding State complied with disclosure obligation under
¶ 33 Because the plain language of
¶ 34 Even assuming such construction was found to be appropriate, the majority‘s analysis is flawed. The majority primarily focuses its argument on two principles: (1) fairness and (2) the right to adequate representation. See majority at 59. Specifically regarding fairness, the majority states that “[t]he discovery rules `are designed to enhance the search for truth’ and their application by the trial court should `insure a fair trial to all concerned, neither according to one party an unfair advantage nor placing the other at a disadvantage.‘” Majority at 59 (quoting
“In order to provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protections of persons, effective law enforcement, the adversary system and national security.”
Majority at 59.
¶ 35 I agree with the majority that
¶ 36 Regarding the right to adequate representation, the majority notes that the “right to effective assistance includes a `reasonable investigation’ by defense counsel” and “also guarantees expert assistance if necessary to an adequate defense.” Majority at 60. The majority argues that
¶ 37 I agree that
¶ 38 Moreover, I reject the majority‘s suggestion that copies should be deemed necessary in all cases involving child pornography evidence. Majority at 60-61. That the constitutional rights of criminal defendants do not require that copies be provided in every case involving child pornography has been expressly confirmed by many federal courts, which have substantial experience with the subject due to the unfortunate frequency of interstate and international trafficking in child pornography.5 Federal courts have held that, on its face, section 504 of the Adam
¶ 39 In sum, I reject the majority‘s conclusion rewriting
B. Although CrR 4.7(a) Does Not Require Copies, a Trial Court May Order Copies in its Discretion, Subject to Appropriate Protective Conditions
¶ 40 Absent a manifest abuse of discretion, decisions regarding the scope of discovery lie within the sound discretion of the trial court. State v. Norby, 122 Wash.2d 258, 268, 858 P.2d 210 (1993) (citing State v. Pawlyk, 115 Wash.2d 457, 470-71, 800 P.2d 338 (1990)). Thus, although
¶ 41 A proper exercise of trial court discretion in these circumstances requires a showing of need for copies requested by the defense. It would be manifestly unreasonable for a trial court to order the State to go beyond providing notice and access absent any proof that such disclosure is inadequate to meet the defense‘s needs.7 Particularly where the evidence at issue is child pornography, I would hold that a trial court‘s order to provide copies must be supported by a particularized showing of need sufficient to overcome the numerous, important interests that weigh against copying and disseminating such contraband. These interests include
¶ 42 First, to order the State to duplicate and disseminate child pornography evidence runs counter to this State‘s criminal law. For obvious example,
(1) Knowingly develops, duplicates, publishes, prints, disseminates, exchanges, finances, attempts to finance, or sells any visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct; or
(2) Possesses with intent to develop, duplicate, publish, print, disseminate, exchange, or sell any visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct is guilty of a class C felony punishable under chapter 9A.20 RCW.
¶ 43 Ordering the State to provide copies of child pornography evidence also implicates the interests protected by article I, section 35 of our state constitution. This provision expresses our people‘s intent that crime victims be treated with “due dignity and respect.”
¶ 44 In addition to protecting victims in general, Washington law expressly provides for the protection of child victims of sex offenses in particular. Our legislature has concluded that the “prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance” and that the “care of children is a sacred trust.”
¶ 45 Finally, to compel the State to provide copies of child pornography evidence also implicates the strong right of privacy enshrined in our state constitution. See
¶ 47 Additionally, in those limited circumstances where a trial court determines that an order to provide copies is appropriate, I would hold that the trial court must subject defense receiving copies to stringent protective conditions. Such conditions should be imposed by issuing a protective order pursuant to
C. The Record in State v. Giles and Wear Did Not Establish Need for Copies to Prepare the Defense
¶ 48 The trial court in the cases of Giles and Wear required the State to provide copies of all child pornography evidence to the defense. Majority at 57. However, the record reveals that neither Giles nor Wear made a particularized showing of need for these copies sufficient to overcome the numerous interests weighing against copies. Counsel for both respondents offered the trial court only generalized allegations of unfairness, unconstitutionality, and inconvenience to support their demands for copies. See Verbatim Transcript of Proceedings (VTP) (Sept. 20, 2006) at 5-11, 19-21, State v. Giles and Wear, Nos. 06-1-03604-4 and 06-1-03616-8 (Pierce County Super. Ct., Wash.). Neither defense counsel presented any documentation or testimony as to his or her need for copies of particular materials to prepare the cases. Cf. United States v. Frabizio, 341 F.Supp.2d 47 (D.Mass.2004) (defendant‘s successful motion to compel copies of child pornography evidence supported by affidavit from retained expert detailing proposed analysis of particular items of evidence and costs associated with being required to conduct analysis at government facility). Moreover, neither counsel even argued there was a need for copies to facilitate any expert preparation or testimony. Giles’ counsel admitted that he had never attempted to view any of the State‘s evidence prior to bringing the motion to compel. VTP (Sept. 20, 2006) at 10-11.
¶ 49 The State reasonably responded with an offer to provide private access to the child pornography for defense counsel, their clients, and their experts. VTP (Sept. 20, 2006) at 14, 17-18, 22. The State argued that such access, rather than copies, was the appropriate approach in light of the risk of harm to the child victims. VTP (Sept. 20, 2006) at 12. The State also pointed out that the evidence sought by Giles and Wear consisted primarily of 21 videotapes made by the defendants themselves. VTP (Sept. 20, 2006) at 13-14. Based on this record, I would hold that the trial court abused its discretion in both Giles and Wear by ordering the State to provide the defense with copies of the child pornography evidence. There is no evidence of actual need in the record to support the trial court‘s orders. Thus, I dissent from the majority‘s decision to affirm these orders. See majority at 63.
¶ 50 In the case of Boyd, the trial court denied defense counsel‘s motion to compel copying of the pornography in question. Majority at 57. I would affirm the trial court. Boyd‘s counsel did make a particularized claim of need for copies to prepare Boyd‘s defense but provided no factual support for her claim. In particular, counsel argued that her expert(s) needed a mirror image of Boyd‘s computer‘s hard drive, as well as copies of all the photographs to be used by the state, to effectively assist in preparing Boyd‘s defense. See Verbatim Report of Proceedings (VRP) (Oct. 10, 2006) at 9-12, 32, State v. Boyd, No. 04-1-05178-1 (Pierce County Super. Ct., Wash.). However, counsel submitted no documentation or testimony supporting the need to have her own copies, as opposed to having reasonable access to the evidence within a state facility. The State responded with an offer to provide reasonable, private access to the evidence for defense counsel, her client, and her expert. VRP (Oct. 10, 2006) at 25-26, 28. The State argued that this was the better approach in light of the compelling need to protect the victims in this case. VRP (Oct. 10, 2006) at 30-31.
¶ 51 Ultimately, the trial court, in the exercise of its discretion, determined that the defense‘s showing of need was insufficient to justify an order to provide copies. VRP (Oct. 10, 2006) at 36-37. Instead, the court ordered the State to provide the defense with access to the evidence sufficient to accommodate the defense‘s trial preparation needs. VRP (Oct. 10, 2006) at 37-41; see also Mot. for Discretionary Review, App. A (Protective Order Regarding Def.‘s Access to Child Pornography, State v. Boyd, No. 04-1-05178-1 (Pierce County Super. Ct., Wash. Oct. 17, 2003)). In light of the record, the trial court‘s decision cannot be deemed manifestly unreasonable. Thus, the trial court did not abuse its discretion, and the majority‘s reversal contradicts our long-standing rule of deferring to trial courts on such matters.
CONCLUSION
¶ 52 The majority has erroneously construed the plain language of the “disclosure” rule,