The past few years presented an almost unrelenting stream of child pornography issues affecting military justice. CAAF’s decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), regarding what happens when some of the images supporting a child pornography conviction aren’t actually child pornography, is still somewhat unsettled, as this term CAAF is considering both a granted and a certified issue in United States v. Piolunek, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page).
Additionally, various cases addressed whether certain images are child pornography, such as United States v. Rapp, No. 201200303 (N-M. Ct. Crim. App. Apr. 30, 2013) (discussed here); United States v. Blouin, 73 M.J. 694 (A. Ct. Crim. App. May 28, 2014), rev. granted, __ M.J. __ (C.A.A.F. Oct. 23, 2014) (CAAFlog case page) (and related cases discussed here); and United States v. Lang, No. 20140083 (A. Ct. Crim. App. Oct. 31, 2014) (discussed here).
Another set of recent cases considered other imagery of minors, such as United States v. Warner, 73 M.J. 1 (C.A.A.F. Dec. 6, 2013) (CAAFlog case page); and United States v. Moon, 73 M.J. 382 (C.A.A.F. Aug. 11, 2014) (CAAFlog case page).
And, of course, the President enumerated child pornography offenses under Article 134 relatively recently: in 2011 (discussed here).
All of this makes court-martial prosecutions in child pornography cases a complex minefield of legal issues. This week’s Scholarship Saturday focuses on the intersection where that minefield meets another: The Confrontation Clause.
Child pornography forces us to re-confront and reevaluate the Confrontation Clause questions that arose in these recent cases, and it also raises new ones. Child pornography possession or distribution cases force the issue because the evidence in a child pornography prosecution consists of a range of evidence types, most of which include business records in the colloquial sense but many of which are not business records that meet the legal standard of the evidentiary exemption. These range from digital data collected routinely in the course of business and without targeting a particular user, to digital evidence collected, labeled, and assembled in preparation for prosecution. The first seems to be textbook business record exception; the second sounds like testimonial evidence that triggers a Confrontation Clause right. In practice, drawing the line between the two is not so clear, and the determinations raise fundamental questions that will apply to digital evidence standards more broadly.
Merritt Baer, Who is the Witness to an Internet Crime: The Confrontation Clause, Digital Forensics, and Child Pornography, 30 Santa Clara High Tech. L.J. 31, at 40-40 (2014) (available here).