What should a family law attorney do if, in the midst of a divorce or custody case, the client reports that a spouse has downloaded pornography onto the family computer? This question raises a number of ethical and strategic problems—including serious criminal law exposure.
Possession of pornography, in general, is not an illegal act. What’s illegal is possession of child pornography. For your own protection and your client’s, if it is even a close call, treat it as if it’s contraband.
Except in extremely rare circumstances, pornography does not get onto a computer by accident. However, it often gets there without the user meaning it to, and sometimes it gets there without the user ever seeing it.
If it is not illegal pornography, there is no criminal conduct and the criminal law analysis is concluded. However, from a family law perspective, the pornographic material remains evidence that may be relevant to the divorce or custody matter. It is important to make two key determinations: (1) how much pornographic material is present and (2) whether the type of pornography is particularly offensive or deviant, such that it can be used to show that the spouse is not a suitable custodian for the children. The manner in which the pornographic material is stored also is relevant. Did the spouse password protect the material or was it accessible to the children? The spouse’s judgment, or lack thereof, may be of interest to the judge or custody evaluator. Moreover, in some jurisdictions the act of showing pornography to children may be criminalized. Other jurisdictions may treat this as child abuse and neglect under juvenile statutes.
If the family lawyer determines that the material is relevant evidence, this material should be treated in the same manner as any other computer or electronic evidence. It will be important to preserve the evidence and maintain a secure chain of custody. In addition, to use the information at trial, you must disclose to opposing counsel that pornography has been found on the home computer.
Representing the discovering spouse. The best course of action is to proceed with caution. Notify law enforcement and let the system run its course. Whatever the client decides to do about notifying law enforcement, discovery of the illegal conduct cannot be used to obtain leverage over the spouse engaged in the illegal conduct. The attorney cannot make threats to bring criminal charges in order to obtain an advantage in a civil matter.
Another trap for the unwary spouse is the question of what to do with the computer. The attorney must not take possession of the computer or material printed from it, nor store the computer or printed materials on behalf of the client. Any conduct that would conceal the evidence or potentially obstruct an investigation is prohibited. Additionally, if the attorney accepts any child pornography from the client, he or she is now in possession of contraband and can be subject to criminal prosecution.
Another troublesome issue is that the computer contains evidence important to the civil case. Some lawyers argue that a “bit-by-bit” digital, forensic copy should be made of the computer contents for use in the civil matter. Making a forensic copy is not easy. It requires specialized knowledge and professional software. Even if it is possible to make a forensic copy, doing so is a bad idea. It could expose both lawyer and client to criminal charges for duplicating and distributing illegal material. Attorney and client should make no copies whatsoever, nor should they print, scan, e-mail, or reproduce the material in any way. The best course of action is to let the police take possession of the computer.
Representing the alleged possessor. If it is alleged that your client downloaded or uploaded illegal pornographic material onto the family computer, immediately refer the client to a criminal defense lawyer with expertise in defending child pornography cases. Also advise your client of his or her constitutional rights to silence and to an attorney. Pointedly remind the client to assert these rights if contacted by any law enforcement authorities. Moreover, instruct the client to assert Fifth Amendment rights at any civil deposition in the divorce or custody case. Further advise the client not to discuss the case with friends, family, or coworkers, and not to rely on the generic protections of any privilege regarding spousal communications. Simply put, the client should not discuss the case with anyone other than his or her attorney. The lawyer should not take possession of the computer or anything that might be related to evidence of child pornography.
The government will analyze the computer and all seized media. If criminal charges are brought, the defendant will receive a summary of the computer forensic analysis. The defendant also should receive a detailed report, but in “sanitized” form, of the findings of the analysis, with images and videos removed.
The defendant eventually will be allowed to review the evidence found on the computer. Typically, this access will be granted in one of two ways. The defendant will be allowed to review the actual hard drive and other media under secure conditions at a law enforcement office, or the court will order that a forensic copy of the evidence be prepared for the defense and made available at a law enforcement office so that the defense’s computer expert can conduct an independent review without disturbing the original evidence.
Be advised that in some jurisdictions, such as Illinois, materials provided to the criminal defendant can only be used in the criminal matter. To use the materials in a civil matter, divorce counsel must request an order from the court in the criminal matter. However, counsel in the divorce matter can work in conjunction with the criminal defense lawyer to craft a defense that would be similar in both cases. Attorneys may want to consider the use of a forensic computer expert in this regard. Ideally, the expert will conduct an independent analysis from scratch, but at a minimum, he or she should check the opposing expert’s work.
Working with a forensic computer expert, attorneys should determine who had access to the computer, when they had access, and whether the material was found in an area of the computer that was password protected. The attorneys and their experts must determine whether the government or opposing party can prove how the contraband got onto the computer, when it got there, and whether the client later accessed it. There are cases of child pornography being inadvertently downloaded by means of a virus, misleading file name, or other means. If the evidence shows the presence of a virus or that the files were deleted immediately after download, or not accessed after download, this could be helpful in building a defense.
Lastly, a computer expert will be able to determine how the material was being stored and accessed. If there is a large quantity of material and the client is sorting and organizing it, this will be problematic. The criminal offense involves knowing possession. As such, all actions taken to find, organize, and store the contraband will be used to demonstrate knowledge, intent, and the absence of mistake.
For More About the Section of Family Law
- This article is an abridged and edited version of one that originally appeared on page 16 of Family Advocate, Spring 2011 (33:4).
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