In Palatini v. State, the Georgia Court of Appeals held that an indictment containing a date on which the defendant could not have possibly committed the crime was not subject to a special demurrer.
Moreover, the Court held that the indictment was not required to identify the names of the particular child pornography files that the defendant was alleged to be in possession of.
The defendant was arrested and charged with one count of sexual exploitation of a child after alleged pornographic images were found on a computer belonging to him. Prior to trial, the defendant filed a special demurrer because the indictment alleged that the offense occurred on April 24, 2009—a date almost two years after his computer had been seized by the police. The defendant’s argument was that it was impossible for him to commit the offense on this date and, therefore, the indictment was fatally defective.
The trial court denied the special demurrer prompting the defendant to apply for interlocutory appeal, which was granted. In analyzing the defendant’s demurrer, the Court of Appeals noted that since the appeal was prior to trial, the Court reviews the indictment to ascertain whether it is imperfect as to form. If so, the special demurrer will be sustained.
The Court explained that an indictment is sufficient where it alleges a specific date upon which the offense occurs, provided that date is not subsequent to the date the indictment was returned. Applying this standard to the defendant’s indictment, the Court found it was sufficient, and thus not subject to a demurrer. The defendant’s challenge, per the Court, actually concerned the underlying evidence in the case and not the form of the indictment, thus making it an issue for trial, as opposed to a pretrial demurrer.
The defendant also challenged his indictment on the grounds that it was unconstitutionally vague. The indictment charged him with possessing “numerous digital images, depicting minor female children, engaged in lewd exhibition of their genital area.” However, the indictment did not specify the particular computer files that the defendant was allegedly in possession of. The Court found that this language was sufficient and further specificity in the indictment was not required.
This latter ruling is quite troubling for defendants facing child pornography charges in Georgia. It allows the State to proceed to trial without specifying which computer files contained the alleged child pornography referenced in the indictment. This is important in cases dealing with multiple computer devices, as the indictment would not put the defense on notice as to which files it needs to be prepared to address. Thus, the defense would be forced to scour every single hard drive in the State’s possession for any and all potential child pornography files. This would make trial preparation unnecessarily burdensome and expensive for the defendant.
It is hard to imagine why the State should not be required to put the defense on notice as to which computer files it is proceeding on at trial. Presumably, the State is already aware of this information at the time the case is indicted, so requiring them to provide this to the defense imposes no additional burden on them. Perhaps, the way for the defense to cure this problem is to file a motion for a Bill of Particulars, requesting that the State supplement its indictment with a list of the computer files in question. Thus, even though the indictment may be legally sufficient, the bill of particulars would cure any unfairness to the defendant.
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