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I. Introduction
Child pornography cases can be complex, burdensome, and expensive to prosecute. The defense will in most cases request a digital forensic examiner as an expert consultant and witness. This typically is a civilian whom the government must reimburse to review the evidence, create a report, consult with the defense, testify, and travel. In recent years, the defense has begun requesting, as discovery, a forensic duplicate, a bit-for-bit forensic copy of the digital media. What does the law require and what should trial counsel do?
To answer these questions, this article discusses the applicability of the 18 U.S.C. § 3509(m), a child victim's right under Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act)1 prohibiting the reproduction of child pornography, to courts-martial and provides tips and advice to trial counsel when responding to requests for, and motions to compel, this kind of discovery.
II. Applicability of 18 U.S.C. § 3509(m) to Courts-Martial
"The Constitution grants Congress 'plenary control over rights, duties, and responsibilities in the framework of the Military Establishment, including regulations, procedures, and remedies related to military discipline.'"2 Congress has exercised that authority by creating a system of military justice separate from the civilian one.3 Yet Congress has directed the President to make the Rules for Court-Martial compatible with civilian justice "so far as he considers practicable,"4 and the President has directed courts-martial to apply civilian rules of evidence as far as is practicable.5 Military appellate courts "frequently look to parallel civilian statutes for guidance."6 The Court of Appeals for the Armed Forces (CAAF) has been cautious "about applying statutes outside the Code to the conduct and review of court-martial proceedings" because it views the Uniform Code of Military Justice as "Congress' primary expression of the rights and responsibilities of servicemembers."7 Sometimes, however, it does so.
In so doing, the CAAF has "not turned a blind eye . . . to all statutes outside the Code."8 The All Writs Act is one such statute.9 Although a strict reading of the Uniform Code of Military Justice (UCMJ) would seem to preclude any proceedings after direct appellate review has been completed, the CAAF and its predecessor, the Court of Military Appeals, has exercised jurisdiction over postappellate habeas corpus proceedings under the...