State v. Boyd

160 Wash. 2d 424

• Court: Washington Supreme Court
• Decided: May 17, 2007
• Docket: Nos. 79371-9; 79339-5
• Status: Published

Opinions

¶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

C. Johnson, J.

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. Report of Proceedings (RP) (Oct. 10, 2006) at 40. At least 11 of the counts are supported by this evidence, stored on the computer hard drive. Suppl. Br. of Pet’r, App.; Suppl. 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.” RP (Oct. 10, 2006) 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 Consol. Suppl. Br., Apps. 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 to the State. State’s Consol. Suppl. Br., App. C.

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 CrR 4.7(a)(l)(v) to compel the prosecutor to provide copies of photographs and videos the State intended to use at trial. Wear joined in this motion. The State offered to provide defense counsel with an opportunity to view the tapes, to allow the defendant to be present, and to enable counsel to speak privately with the defendant during viewings. The State provided a detailed narrative of the videotapes’ contents in discovery. The court granted the motion, subject to a protective order, which the State appealed.

ANALYSIS

¶6 The first issue in dispute is which section of CrR 4.7 applies under these circumstances. The defense argues that CrR 4.7(a) controls, and under that section, they are entitled to copies of the evidence that supports the criminal charges. The argument is based on the claim that the evidence is necessary to effectively represent the clients and prepare a defense.

¶7 CrR 4.7(a), in relevant part, provides as follows:

(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 CrR 4.7(e) should guide our analysis here. It reasons that any obligation to provide copies is a product of judicial discretion under CrR 4.7(e). CrR 4.7(e) provides:

(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]

CrR 4.7(e) deals with disclosure of material and information under circumstances other than those described in CrR 4.7(a)(1), namely, where the prosecutor does not intend to use the material or information in the hearing or trial and where the evidence was not obtained from or does not belong to the defendant. Significantly, it places the burden of showing reasonableness and materiality on the defendant.

¶9 CrR 4.7(a)(l)(v) identifies what material and information must be disclosed. The rule, at the very least, requires disclosure of “any books, papers, documents, photographs, or tangible objects” which the prosecutor intends to use at trial. CrR 4.7(a)(l)(v). This rule could not be any clearer in establishing what the State must disclose, and this is precisely the type of evidence involved in these cases. The evident purpose of the disclosure requirement is to protect the defendant’s interests in getting meaningful access to evidence supporting the criminal charges in order to effectively prepare for trial and provide adequate representation. The evidence is offered to substantiate the criminal charges. We hold that CrR 4.7(a) controls the issue raised in these cases.

¶10 Having addressed CrR 4.7(a)’s applicability, we come to the State’s argument that it need not make copies. The State argues that even if CrR 4.7(a) controls, that rule does not require prosecutors to duplicate every single item they intend to use at trial and provide a copy to the defense. State’s Consol. Suppl. Br. at 9-10. It argues that disclosure means only acknowledging the existence of seized evidence. State’s Consol. Suppl. Br. at 10 (citing State v. Penn, 23 Wn. App. 202, 596 P.2d 1341 (1979)).³ The State supports its argument by asserting that withholding copies advances the child’s interests by limiting the risk of victimization through further dissemination of the sexual crimes depicted in the evidence.

¶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 Wn.2d 621, 632-33, 430 P.2d 527 (1967). Under CrR 4.7(a), the burden is on the State to establish, not merely claim or allege, the need for appropriate restrictions.⁴ The defendant does not have to establish that effective representation merits a copy of the very evidence supporting the crime charged. To adopt the State’s position is to restrict the defendant’s right to potentially exculpatory evidence on the State’s mere allegation that the evidence involves contraband.

¶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 Wn.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 Constitution 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 Wn.2d 868, 873, 16 P.3d 601 (2001). It also guarantees expert assistance if necessary to an adequate defense. State v. Punsalan, 156 Wn.2d 875, 878, 133 P.3d 934 (2006). Supporting the right to effective representation, CrR 4.7(h)(4) provides that notwithstanding protective orders, the evidence must be disclosed “in time to permit . . . beneficial use.”

¶15 These rights illuminate the substance hinted at by the definition of “disclose.” “[Disclosure” 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 (emphasis added). Where the nature of the case is such that copies are necessary in order that defense counsel can fulfill this critical role, CrR 4.7(a) obliges the prosecutor to provide copies of the evidence as a necessary consequence of the right to effective representation and a fair trial.⁵

¶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 CrR 4.7(a)(l)(v) between the specific types of tangible evidence the prosecutor must disclose, and the disclosure mandate applies equally to all evidence.

¶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 images to be downloaded. It may indicate when the images were downloaded. It may reveal how often and how recently images were viewed and other useful information based on where the images are stored on the device. See Amicus Br. of WACDL [Wash. Ass’n of Criminal Def. Lawyers] at 10-14. Expert analysis of the application or program used to acquire the images may be useful. Providing a copy enables the expert to test that application or program using the same type and version of computer operating system as was used by the defendant, a difference that may alter how the program runs, stores data, and so forth. Amicus Br. of WACDL, App. A at 9-10. Analysis may also reveal that the images are not of children. See, e.g., Knellinger, 471 F. Supp. 2d at 647. This analysis requires greater access than can be afforded in the State’s facility.

¶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 CrR 4.7(e). The trial judge said there was “no such thing” as a “right to unlimited access to evidence,” only “reasonable access.” RP (Oct. 10, 2006) at 36-37. He described the request as “the old shotgun approach,” suggesting that defendant might be able to show the materiality of further access after first viewing the evidence in the State’s office. RP (Oct. 10, 2006) at 37. Similarly, the State argues that Judge Worswick failed to require a showing of materiality and reasonableness.

¶20 To require this showing is to ignore the inherent materiality of the disclosure mandated by CrR 4.7(a). Disclosure is required in large part because the prosecutor intends to use the evidence “in the hearing or trial.” CrR 4.7(a)(l)(v). It is this purpose that explains the materiality of the defendants’ requests. Though the evidence in Giles and Wear is on videotape, CrR 4.7(a)(l)(v) does not justify any distinction; the disclosure mandate applies equally to all types of evidence.

¶21 Having established the scope of CrR 4.7(a) and the principles supporting the provision of copies, the rule also provides for recognition of other interests involved in the proceeding. It does so by explicitly providing for the authority to subject disclosure to protective orders. CrR 4.7(a)(1).

¶22 The provision for protective orders in CrR 4.7(a) makes sense if one concludes the defense is entitled to copies of the evidence. It is the possession of evidence implicating privacy that often explains the use of a protective order. See, e.g., Rhinehart v. Seattle Times Co., 98 Wn.2d 226, 242-43, 654 P.2d 673 (1982) (barring newspaper from publishing information derived from copies of tax returns and other discovered materials); Barfield v. City of Seattle, 100 Wn.2d 878, 885, 676 P.2d 438 (1984) (protective order issued to prevent defense attorney’s dissemination of officer records). If such orders are uncommon in criminal cases, that may be due to the ability to analyze the evidence while it remains in the State’s lab (i.e., with ballistics and drug testing), because analysis is not compromised by the presence of a State officer, see, e.g., United States v. Noel, 708 F. Supp. 177 (W.D. Tenn. 1989); United States v. Pollock, 402 F. Supp. 1310 (D. Mass. 1975), because there is little risk of dissemination or because that risk is addressed by the attorneys’ professional responsibilities.

¶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 noncounsel 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 Wn.2d 900, 93 P.3d 861 (2004) (involving business’s confidential documents); In re Det. of Campbell, 139 Wn.2d 341, 355-56, 986 P.2d 771 (1999) (addressing defendant’s privacy interest); Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.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 of annoyance or embarrassment without limiting discovery of the evidence that the prosecutor intends to present at trial. The trial judge has authority to address the manner in which witnesses are deposed and examined. Furthermore, the access provided by CrR 4.7(a)(l)(v) does not create a risk where there was none. Some risk of dissemination accompanies its handling by those associated with the prosecution. Even if the right to a fair trial could be satisfied while denying copies only to the defense, the cost to justice here would be disproportionate to the benefit.⁸

¶28 Finally, the State argues that providing the defendants with copies of the materials sought would constitute sexual exploitation of children contrary to RCW 9.68A.050.⁹ We are not convinced the statute was ever intended to apply to the trial process. Furthermore, the legislative policies expressed in RCW 9.68A.001 (describing the importance of preventing sexual exploitation of children) can be safeguarded with a carefully crafted protective order.

CONCLUSION

¶30 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.

Alexander, C.J., and Madsen, Sanders, Bridge, Chambers, Owens, and Fairhurst, JJ., concur.

1 Wear filed a motion to join and adopt and incorporate arguments of consolidated party under Rules of Appellate Procedure 10.1(g). We grant that motion. The State filed a motion to strike appendices A-F of amici brief of Washington Association of Criminal Defense Lawyers and National Association of Criminal Defense Lawyers (hereafter WACDL). We passed the motion to the merits and now deny it. On March 5, 2007, Boyd, Giles, and Wear moved to strike the amicus brief of the National Center for Missing and Exploited Children (NCMEC). That motion was passed to the merits and is denied. On March 9, 2007, amicus WACDL filed an answer to the amicus brief of the NCMEC. On March 12, 2007, the State moved to strike amicus WACDL’s answer. We passed the motion to the merits and now deny it. On March 13,2007, Boyd moved to join and adopt the amicus brief of WACDL. We grant this motion.

2 CrR 4.7(e)(2) allows the court to condition or deny disclosure based on a balancing test:

The court may condition or deny disclosure authorized by this rule if it finds that there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisals or unnecessary annoyance or embarrassment, resulting from such disclosure, which outweigh any usefulness of the disclosure to the defendant.

3 Penn does not support the State’s argument. In Penn, the defendant sought suppression, claiming she was not adequately notified of the prosecutor’s intent to admit specific items by the prosecutor’s listing of “narcotics paraphernalia in general” in the discovery document. The court rejected this argument because she failed to seek more specific information under CrR 4.7(c)(1). Penn therefore involved the question of what constitutes adequate notice of tangible objects in the prosecutor’s possession or control. It did not address the sufficiency of the access she would have received.

4 This burden mirrors the approach under federal law prior to passage of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 504, 120 Stat. 587, 629 (2006), amending § 3509 of Title 18 of the United States Code. See Cervantes v. Cates, 206 Ariz. 178, 76 P.3d 449 (2003); United States v. Isa, 413 F.2d 244, 248 (7th Cir. 1969). The act altered both the burden and the standard of proof. Since its passage, courts sometimes refuse to provide copies without also requiring government supervision. Compare United States v. O’Rourke, 470 F. Supp. 2d 1049 (D. Ariz. 2007) (defendant failed to meet burden under the Walsh Act), with United States v. Knellinger, 471 F. Supp. 2d 640 (E.D. Va. 2007) (finding production of a copy necessary even under the act). Even in denying the defendant’s request, the court in O’Rourke agreed that the hard drive was “material.” If it needed only to satisfy Federal Rule of Criminal Procedure 16, the court “would grant the defense team possession of the hard drive . . . O’Rourke, 470 F. Supp. 2d at 1054 n.l.

5 The rules emphasize that protective orders must not compromise effective assistance. CrR 4.7(h)(3) contemplates entrusting defense counsel with custody of the evidence. That custody may be subject to “terms and conditions” provided by the court. But disclosure must be “in time to permit... beneficial use thereof.” CrR 4.7(h)(4).

6 The rules appear to reflect an understanding that copies are required under CrR 4.7(a)(l)(v). Under CrR 4.5(c), the court must provide a checklist to the parties “to ensure that all requests, errors and issues” are considered at the omnibus hearing. The checklist should be “substantially like that provided in CrR 4.5(h). In that checklist, among the “applications or motions” available to the defendant, is this: “To permit inspection and copying of any books, papers, documents, photographs or tangible objects which the prosecution: (a) Obtained from or belonging to the defendant; or (b) Which will be used at the hearing or trial.” CrR 4.5(h)(20) (emphasis added). This language, other than the explicit reference to “copying,” appears drawn directly from CrR 4.7(a)(l)(v).

7 For example, CrR 4.7(h)(3), entitled “Custody of Materials,” provides in part: “[a]ny materials furnished to an attorney pursuant to these rules shall remain in the exclusive custody of the attorney and be used only for the purposes of conducting the party’s side of the case, unless otherwise agreed by the parties or ordered by the court.” (Emphasis added.)

8 In this regard, we note that the State provides no example where an attorney has failed to protect the evidence, though such orders have been issued outside Pierce County in similar cases. See, e.g.,Hill, 322 F. Supp. 2d at 1092-94. Amicus Brief of Washington Association of Prosecuting Attorneys (WAPA) cites a number of cases in support of its argument for “an exceptionally high initial showing” of relevance before copies are provided. Amicus Br. of WAPA at 10 n.4. Though some of these cases involve misconduct by attorneys, none involve defense counsel mishandling evidence.

9 That statute, entitled “Dealing in depictions of minor engaged in sexually explicit conduct,” reads as follows:

A person who:

(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.

RCW 9.68A.050.