New York Federal Criminal Practice Blog
August 4, 2008

WDNY Judge Upholds Constitutionality of Adam Walsh Act, Citing its Safety Valve Provision

As noted by this blog previously, see here, the Adam Walsh Act of 2006 prohibits the reproduction of child pornography during legal proceedings, and in particular, permits the government to refuse to supply copies of child pornography to the defense in a child pornography prosecution as long as the material is made “reasonably available” to the defendant.  The “reasonably available” concept (the so-called “safety valve” of the Act) is defined in the statute as “ample opportunity for inspection . . . at a Government facility.”  The Second Circuit has not yet defined what constitutes “ample opportunity,” but several district courts have required it to be “due-process-level” access to the original material, or the defense team gets a copy of the hard-drive in question.

In United States v. Patt, 06-cr-6016, 2008 WL 2915433 (W.D.N.Y. July 24, 2008), the court further refined the meaning of “ample opportunity,” concluding that there was no due process violation where the defense expert may have found it time-consuming and inefficient to do his job at the government facility, but was nonetheless able to “conduct a complete and independent analysis of the hard-drives” at issue.  In the absence of any claim that the results were “incomplete or compromised . . Patt was provided ample opportunity to inspect and analyze the computer drives that were seized and are alleged to contain child pornography.” 

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