EvidenceProf Blog

A Certain Cache: Court Of Appeals Of New York Finds Web "Cache" Evidence Insufficient To Uphold Child Pornography Convictions

A defendant is charged with two counts of promoting a sexual performance by a child and 134 counts of possessing a sexual performance by a child. Some of these charges are the result of the discovery of images of child pornography in the Web "cache" on the defendant's computer. Does the prosecution have to prove that the defendant had knowledge that when he viewed child pornography on his computer,the pornography was automatically stored in the cache to secure his conviction? According to the recent opinion of the Court of Appeals of New York in People v. Kent, 2012 WL 1580439 (N.Y. 2012), the answer is "yes."

In Kent, the facts were as stated above. Specifically,

The allocated space under the Jim profile on Mozilla Firefox contained a temporary internet file known as a Web "cache." A cache contains images or portions of a Web page that are automatically stored when that page is visited and displayed on the computer screen; if the user visits the Web page again at a later date, the images are recalled from the cache rather than being pulled from the Internet, allowing the page to load more quickly. The cache under the Jim profile contained a .jpg image of a child pornography Web site called "School Backyard" that depicted children engaged in sexual intercourse with adults.

According to the Encase software, the "School Backyard" page had been accessed on the morning of February 21, 2007. Within minutes of accessing "School Backyard," three other pages were accessed—two images of a young girl sitting in the front seat of her car with her wrists bound and a Web page labeled "Pedoland"—which were also stored in the Web cache. The cache contained several other Web pages labeled, among other things, "Best CP Sites Portal, the Best Lolita CP Sites," that provided links to child pornography Web sites. Additionally, the Real Player history included links to numerous videos with file names indicating that they contained child pornography that were accessed, some on multiple occasions, between 2005 and 2007. There was no evidence that defendant was aware either of the cache function of his computer or that any of these files were stored in the cache.

The prosecution used these cached images to convict the defendant of (1) Promoting a Sexual Performance by a Child:

A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than seventeen years of age.

and (2) Possessing a Sexual Performance by a Child:

A person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.

The Appellate Division upheld these convictions:

Addressing the evidentiary significance of the presence of internet files stored in a cache, as well as the significance of defendant's knowledge or lack of knowledge regarding the cache function of his computer, the court undertook a review of both federal and state approaches to these issues....Noting that "[t]he consistent thread in these cases is the need to distinguish inadvertent or unintentional acquisition or possession of the offensive material from knowing or intentional procurement and possession," the court stated its preliminary "agreement with the underlying premise that the mere existence of an image automatically stored in a cache, standing alone, is legally insufficient to prove either knowing procurement or knowing possession of child pornography"....

The court adopted the view, however, that "a Web page stored in the cache is evidence of past procurement of the images on that page. Specifically, the cached Web page from the 'School Backyard' site is evidence that the Web page was accessed and displayed on the defendant's computer screen"....That defendant knowingly accessed the page was demonstrated by a totality of evidence including defendant's pattern of Internet browsing for child pornography Web sites, his Real Player history, and his messages to "P.B." acknowledging his possession of child pornography....The court further held that the evidence was legally sufficient to prove defendant's knowing possession of the images on the "School Backyard" page, finding that defendant "knowingly accessed the Web page and displayed it on his computer screen...establishing his dominion and control over the images."

On appeal, the Court of Appeals of New York began by laying out the competing approaches to the issue. On one hand,

Federal Courts have held that for digital images to constitute evidence of knowing possession of child pornography, such images must be connected to something tangible (e.g., the hard drive), as they are when stored in a cache, and that the defendant must be aware of that connection....At least two state courts have adopted the federal approach.

On the other hand, 

The rule espoused by several other states and by the Appellate Division—that defendant's awareness of the automatic cache function is immaterial because it is not the cached files that constitute the contraband but the images previously displayed—is conceptually distinct as it does not rely on the tangibility of the image (i.e., its permanent placement on the defendant's hard drive and his ability to access it later) but on the fact that the image was, at one time, knowingly accessed and viewed.

The Court of Appeals decided to side with the federal approach:

Like the federal courts to address the issue, we agree that where no evidence shows defendant was aware of the presence of the cached files, such files cannot underlie a prosecution for promotion or possession. This is necessarily so because a defendant cannot knowingly acquire or possess that which he or she does not know exists.

The court did acknowledge that

cached images can serve as evidence of defendant's prior viewing of images that were, at one time, resident on his computer screen. Such evidence, like a pattern of browsing for child pornography, is relevant to the mens rea of both crimes by showing that a defendant did not inadvertently access an illicit image or site or was not mistaken as to its content.

But the court found that this was not enough to uphold the defendant's convictions on these counts because the fact

that such images were simply viewed, and that defendant had the theoretical capacity to exercise control over them during the time they were resident on the screen, is not enough to constitute their procurement or possession. We do not agree that "purposefully making [child pornography] appear on the computer screen—for however long the defendant elects to view the image—itself constitutes knowing control"....Rather, some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen....

Here, the "School Backyard" Web page was automatically stored in the cache in allocated space that was accessible to defendant. The People did not demonstrate that defendant knew that the page, or any other, for that matter, had been cached. While the cached page provided evidence that defendant previously viewed the site, the People presented no evidence that defendant downloaded, saved, printed or otherwise manipulated or controlled the image while it was on his screen. That defendant accessed and displayed the site, without more, is not enough. Thus, the evidence was insufficient to show that defendant knowingly possessed the "School Backyard" Web page, either in the form of the cached file or as an image on his screen. It follows, therefore, that there was not sufficient evidence that defendant procured the "School Backyard" page; defendant did not “get possession of [the page] by particular care or effort”....Thus, defendant's convictions under counts 1 and 142 should be reversed.

(Hat tip to Christian Deichert for the link)

-CM

Last Dance With Mary Jane: Will Evidence of THC In Trayvon Martin's Blood Be Admissible In George Zimmerman Trial?

According to several sources,

The medical examiner's report showed traces of THC - the active ingredient in marijuana - in [Trayvon] Martin's blood and a positive test for cannabinoids in his urine.

Of course, this begs the question of whether George Zimmerman will be able to present this drug evidence in support of his claim of self-defense in his impending second-degree murder trial. The admissibility of this drug evidence will depend on a variety of factors, but the opinion of the Court of Appeal, Fourth District, Division 3, California, in People v. Sanchez, 2010 WL 2842158 (Cal.App. 4 Dist. 2010), supports the proposition that the judge could exclude it.

In Sanchez, Joe Anthony Sanchez was convicted by a jury of manslaughter. After he was convicted, Sanchez appealed, claiming, inter alia, that the trial court violated his right to present a defense by precluding him from presenting evidence in support of his claim of self-defense that the victim, Jose Madrigal "had cocaine and marijuana in his system at the time he was killed." According to Sanchez, this evidence supported his theory of the case, which is that Madrigal, who was sleeping with Sanchez's wife (from whom Sanchez was separated), attacked him with a knife rather than vice versa as the prosecution claimed.

 The Court of Appeal disagreed, concluding that

The evidence that Madrigal had drugs in his system at the time of his death was...properly excluded. Appellant contends the evidence was relevant to his claim of self-defense, in that it showed Madrigal acted violently and irrationally in attacking him with the knife. But appellant's self-defense claim was grounded in the notion that Madrigal and Charity conspired to kill him, not that Madrigal attacked him in a drug-induced rage. Therefore, the evidence of Madrigal's drug use was of dubious relevance from a tactical standpoint.

In addition, while there was evidence Madrigal had trace amounts of cocaine and marijuana in his system, and those drugs could have had a "physiological effect" on him, there was no evidence they were actually inclined to make him act aggressively or violently during his fatal encounter with appellant. Therefore, even if the evidence of Madrigal's drug use had some bearing on the case, its exclusion would not be cause for reversal.

As you can see from this block quote, the court's opinion was partially informed by Sanchez's theory of the case, which reduced the probative value of the drug evidence. That said, the second paragraph in the block quote seems to make clear that it would be difficult for a defendant to be able to admit evidence of marijuana in a victim's system to prove that the victim was the aggressor. Indeed, it is pretty well established that "[m]arijuana does not make the user more violent or aggressive. To the contrary, the effect of marijuana intoxication is to relax and make one less aggressive." State v. Smith, 610 P.2d 869, 887 (Dollive, J., concurring in part and dissenting in part).

Therefore, there seems to be a pretty clear basis for the trial judge to exclude the evidence of THC found in Martin's blood. Ultimately, the issue will be governed by three rules/rights. The first question is whether the evidence is relevant under Section 90.401 of the Florida Statutes, which defines relevant evidence as "evidence tending to prove or disprove a material fact." Assuming that the evidence is deemed relevant, the second question is whether it is inadmissible under section 90.403 of the Florida Statutes Relevant because "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." Third, assuming that the court deems the evidence inadmissible under one or both of these rules, the question becomes whether exclusion of the evidence would violate one of Zimmerman's Constitutional rights, such as the right to present a defense, which I discussed earlier today.

Based upon the above language from Sanchez, I would expect the judge to exclude the drug evidence, but (1) I would like to see if I can find Florida precedent on the issue; and (2) a lot could depend on Zimmerman's exact theory of the case.

-CM

Deborah Tuerkheimer's Judging Sex & The En Banc Opinion That Reversed The Rape Shield Killing Ruling

Back in 2010, I posted an entry about the Sixth Circuit's opinion in Gagne v. Booker, 596 F.3d 335 (6th Cir. 2010), the (in)famous rape shield case in which the dissent accused the majority of "effectively abrogat[ing] every rape-shield statute in this circuit…." At the time, I thought that this statement was a bit hyperbolic but agreed with the dissenting judge that the opinion was a nasty piece of work, so I am glad to report that the Sixth Circuit overturned it in in en banc opinion issued yesterday: Gagne v. Booker. In this post, I will address the court's holding as well as a terrific forthcoming article, Judging Sex (forthcoming, Cornell Law Review), by Professor Deborah Tuerkheimer.

Let's start with the basic facts of Booker. As I wrote 2+ years ago,

In Booker, “Lewis Gagne and his co-defendant, Donald Swathwood, were each charged with three counts of criminal sexual misconduct for forcibly and simultaneously engaging in sexual activities with Gagne’s ex-girlfriend,  Pamela Clark.” “All of the charges arose out of events occurring over the course of one night,” with some of those events consisting of drug use and group sexual activity on July 3, 2000.   The main issue at trial was not whether Clark engaged in this group sexual activity but whether she consented to it.

Before trial, “Gagne filed a motion in limine seeking to introduce evidence regarding several aspects of Clark’s prior sexual experiences and tastes.” The trial court, however,  ”denied the motion in part, excluding evidence regarding two subjects…: an incident of group sexual activity involving Gagne, Clark, and a man named Ruben Bermudez; and Clark’s solicitation of Gagne’s father to join her and Gagne in group sex.”

After Gagne unsuccessfully appealed in state court, he filed a successful petition for a writ of habeas corpus with the United States District Court for the Eastern District of Michigan, with the Sixth Circuit later affirming the district court's opinion granting the petition. The basis for Gagne's petition was that the exclusion of the sexual evidence violated his right to present a defense, meaning that the courts found, in effect, that the rape shield rule (as applied) was arbitrary or disproportionate to the ends that it was designed to serve and that the excluded evidence was "highly relevant" and "indispensable" to Gagne's defense.

In its en banc plurality opinion, the Sixth Circuit found this conclusion to be hogwash. Instead, according to the court,

The United States Supreme Court has never held that rape-shield statutes do not represent a legitimate state interest, nor has it ever held that highly probative evidence will necessarily outweigh that interest. Quite to the contrary, the Court held in Lucas...that the trial court must balance the state’s interest against the defendant’s interest on a case-by-case basis, and neither interest is superior per se. And the Court concluded in Crane...that a trial court may even “exclude competent, reliable evidence . . . central to the defendant’s claim of innocence,” so long as there exists a “valid state justification.” The Michigan Court of Appeals properly weighed the competing interests, as Supreme Court precedent requires, and did not misidentify or misapply any clearly established federal law.

In other words, the plurality cut to the heart of the matter and found that there was clearly not a violation of Gagne's right to present a defense without really digging into a full blown rape shield analysis. I therefore much prefer the concurring opinion of Judge Sutton, who wrote separately to point out, inter alia, that

(1) Gagne’s proffered evidence is not as probative as he submits once it is stripped of the forbidden inference that a woman who consents once to group sex is more likely to consent to it in the future; [and that] (2) the State’s interests in its rape shield laws remain strong even after a trial court admits some evidence of the victim’s past sexual practices....

I also prefer Judge Griffin's strongly written concurrence, which called out the dissent:

In sum, the dissent claims that a fundamental, clearly-established constitutional error was committed by the State courts, not by the exclusion of any direct evidence of whether the alleged crime was committed, but by the exclusion of propensity evidence. The dissent embraces the inference that because the victim did it before, she likely did it again. Moreover, the dissent would not only allow the jury to consider such an inference, but would hold that for purposes of habeas corpus review, the exclusion of such an inference was an unreasonable application of clearly established Federal law, as determined by the Supreme Court. I respectfully disagree.

That takes us to the dissent, which found that

the question presented by Gagne’s case is a narrow one: whether, in a trial where the charged conduct is facially coercive and the only issue is consent, evidence that the complainant had consented to the same kind of conduct with the defendant, only a handful of weeks before, is indispensable to his defense. Under the Supreme Court’s caselaw—and by any measure of fairness and common sense—the clear answer to that question is yes.

In turn, this takes me to Judge Clay's opinion concurring in the judgment, which was written

separately to clarify the limitations required under the Michigan rape shield law and to further respond to the dissent’s argument in favor of admitting “pattern of conduct” evidence.

Judge Clay found

unpersuasive...the dissent’s “fairness and common sense” standard that it utilizes to support the admissibility of “pattern of conduct” evidence....Gagne did not argue, nor did the district court find, that the purpose of introducing the Bermudez evidence went to Clark’s “motive, bias or prejudice,” but instead to her propensity. Nonetheless, the district court found that the Sixth Amendment required that Gagne be allowed to point to individual instances of Clark’s past conduct to generally attack her credibility, even though this Circuit has previously held that the Constitution has no such requirement.

Finally, this takes me to Professor Tuerkheimer's article, which notes that the dissent's reasoning is not uncommon. Instead,

In consent defense cases, a little-noticed exception allows a court to admit in evidence a woman‘s sexual history if it is viewed as patterned. At the time rape shield law was enacted, this exception ensured that the rule of exclusion would only go so far: too much sex, or sex of the wrong kind, lay outside of its scope. Archaic though it may seem, this function endures. The pattern exception permits the otherwise forbidden inference that past consent to intercourse makes consent on a separate occasion more likely. If certain conditions exist, the protection of the rape shield dissipates.

Exhibit A of this phenomenon in Tuerkheimer's article is the initial Sixth Circuit opinion in Gagne v. Booker. In her article, Tuerkheimer deftly deconstructs this exception as well as the existing rape shield framework and suggests an alternate theory of sexual consent that rests upon contingency.

This alternative approach to admissibility is instrumental, meaning that it takes account of the prosecutor‘s theory of guilt. In other words, a court should only allow sexual history evidence when the prosecutor‘s case-in-chief has opened the door to its use. To be clear, the door does not open simply because a defendant claims that the victim consented, as the status quo permits. Instead, the trial court must assess the evidential worth of the victim‘s prior sexual conduct solely in relation to the state‘s theory of guilt. In short, the probative value of a woman‘s sexual history must be evaluated— as with any other evidence—with regard to the entire evidentiary record.

The approach that I advocate acknowledges that prosecution‘s presentation of particular arguments and testimony may, under rare instances, create the conditions under which it would be unfair to exclude sexual history evidence. It allows defendants to offer this evidence when it is directly responsive to specific testimony or comment. But it does not allow the inference that prior consent predicts later consent. In short, the proposed approach maintains fidelity to the core prohibition of rape shield law.

For a few illustrations of the circumstances I have in mind: If a prosecutor argues that the jury should infer nonconsent from what is referred to as the bizarre nature of the sexual conduct at issue, a judge might allow evidence that the victim previously engaged in this type of conduct. If a victim testifies that she would never willingly participate in a particular sexual behavior, a judge might allow evidence of such prior consensual activities.

I fully endorse this new framework. Indeed, Federal Rule of Evidence 412(b)(2) already only allows a civil defendant to present evidence of a civil plaintiff's sexual reputation if the civil plaintiff has placed her reputation in controversy. Tuerkheimer's approach merely extends this door-opening analysis to all victim sexual evidence in both civil and criminal cases. And what it does, like "mercy rule" in Federal Rule of Evidence 404(a)(2), is to create a Pandora's box. If the alleged victim and/or the prosecutor want to prevent propensity character evidence from infecting trial, they merely need to refrain from introducing it. But if they choose to inject the issue of character into trial, they open the door (box) to the defendant potentially presenting evidence of the victim's sexual history.

Of course, the objection to this argument would be that the "mercy rule" places the power in the defendant's hands while this framework would place the power in the other sides hands. My response would be that this makes sense given the way that the Federal Rules of Evidence currently treat propensity sexual character evidence. Indeed, I've been working on the theory that the current Rules in this regard are sort of like sexual misconduct affirmative action. It used to be that defendants charged with rape paraded the alleged victim's sexual partners into the courtroom to prove the alleged victim's propensity to engage in consensual sexual acts and her likely conformity with that propensity -- and thus consent -- at the time of the crime charged.

The response to this practice was not only the passage of rape shield laws but also the passage of Federal Rules of Evidence 413-415, which allow prosecutors/plaintiffs to present evidence of past sexual misconduct by defendants. In passing these laws, Congress recognized that, like female and minority students/job candidates, alleged victims found that what they said fell on deaf ears. Thus, in both cases, Congress, with much controversy, made an attempt to level the playing field in attempt to increase success rates (in landing jobs/seats and in winning civil and criminal trials).

-CM