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Defense is Entitled to Evidence in Georgia Child Pornography Cases

January 2, 2014

In a case of considerable importance to the defense of child pornography allegations in Georgia, the Court of Appeals held in Morris v. State that a trial court has the authority to issue a protective order requiring the State to make a copy of the defendant’s hard drives in order to give the defense team and its expert meaningful access to the evidence.

In this case, Morris was indicted on 45 counts of sexual exploitation of children. He filed a discovery motion asking the court to require the State to provide him with a bit for bit copy of his computer’s hard drive which would include the alleged child pornography files. He sought to have the hard drive forensically analyzed by a computer expert, and argued that the State’s policy of requiring the expert to conduct his analysis at the District Attorney’s office created an undue hardship for the defense.

The State refused to provide a copy of the hard drive and the defendant alleged that this refusal violated his due process rights by making him unable to prepare for trial in the same way that the State was able to. The State responded that it gave the defendant and his legal team a private room at the DA’s office with unlimited time to review the evidence.

The Court of Appeals held that, in this situation, the trial court had the authority to craft a protective order that required the State to make a copy of the computer evidence–despite the fact that Georgia and federal statutes appear to prohibit the possession of child pornography files by the defense team and its expert. The Court reasoned that due process requires that a criminal defendant be entitled to have an expert of his choosing examine critical evidence which is subject to varying expert opinion, subject to safeguards imposed by the court. The Court also noted that other states faced with this issue have developed ways for the defense to have meaningful access to computer evidence with the use of protective orders which allow for the copying of the evidence but limit who can disseminate it and have access to it.

This decision is a victory for sex crime defense attorneys in Georgia who handle child pornography cases as it will help level the playing field. It is quite burdensome for the defense team and its expert to have to examine the computer evidence in the confines of the police department or the district attorney’s office. Plus, it makes it almost impossible to properly prepare for trial as the evidence often must be continuously examined during the days before and during trial. Hopefully, this case will open the door for the regular use of protective orders in these cases and give the defense team the same access to the evidence that the State has.

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