Discovering Child Pornography: The Death of the Presumption of Innocence

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INTRODUCTION

Child pornography cases, by their very nature, create a tension between protecting the child-victim's natural innocence and preserving the defendant's presumption of innocence. It is not surprising, then, that two opposing lines of cases have emerged in a debate concerning whether those accused of possessing or distributing child pornography should be allowed a copy of the sexually explicit materials to be used against them at trial. This Note contends that federal statutory and constitutional laws require such discovery, but not without ensuring adequate safeguards to prevent further harm to the child.

From the murder of an over-sexualized child beauty queen (1) to priest-child sex scandals (2) and international child pornography rings, (3) the news media bombards us almost daily with stories that portray the child as a sexual creature. (4) The media and the public are ready to condemn those accused of child sex crimes well before they have had their chance to present a defense, often before the prosecution even has enough evidence for a formal charge. This trial by media suspicion was at its height in the JonBenet Ramsey murder case, where the media condemned her parents for the murder, but neither were ever indicted in a court of law. (5) In an interview on Larry King Live, a former detective publicly stripped the Ramsey parents of their presumption of innocence. (6) John Ramsey responded with a question of his own: "Why do we have to prove our innocence? ... That is fundamentally contrary to the Constitution." (7)

Unfortunately, there is little that can be done to change this media presumption of guilt. Our legal system, on the other hand, operates from a different philosophy than that of public opinion: a criminal defendant is innocent until proven guilty. (8) Although not explicitly stated in the Constitution, this presumption of innocence is inferred from the Fifth, (9) Sixth, (10) and Fourteenth Amendments (11) and was affirmed by the U.S. Supreme Court as early as 1895. (12) These amendments have led to the creation of expansive discovery laws in criminal cases, implying broadly that counsel for criminal defendants must provide an adequate defense for the accused. (13) Courts must not be swept away by the tendency of the public to condemn one accused of a horrendous crime, such as those involving the sexual exploitation of children, prior to an actual conviction at trial, but should instead keep these principles in mind and afford them the same discovery rights as every other defendant.

Nevertheless, several courts recently appear to have abandoned these discovery doctrines for certain criminal defendants. In a line of child pornography cases beginning with United States v. Kimbrough, some courts have refused to allow the accused and his counsel discovery of the child pornographic materials held by the prosecution, the very evidence that is then presented against the accused. (14) In a legitimate effort to preserve what is left of the innocence of the child-victim, the

innocence presumption for the accused is lost. Other cases, such as Westerfield v. Superior Court, have recognized this breakdown of constitutional protections and have refused to follow Kimbrough's lead. (15)

Child pornography is defined as any "material that visually depicts sexual conduct by children." (16) Furthermore, "[i]t is unprotected by the First Amendment even when it is not legally obscene," meaning that the depictions "may be banned on the basis of their content" alone. (17) Child pornography causes grave harm to the child-victims--more so than other forms of child abuse because the depictions create a permanent record and can cause continuous psychological damage to a child. (18) Recognizing the government's legitimate interest in protecting children from such atrocious abuse, both federal and state legislatures have passed statutes forbidding not only the production and distribution, but also the mere possession of such materials. …