Criminal Cases

Norfolk VA Defendant Challenges Conviction For Possession of Child Pornography

A Defendant was accused of possession of child pornography in Norfolk, VA.  For some reason, the Defendant did not retain a computer forensics expert to assist in reviewing the digital evidence against the Defendant.  It is unclear whether the Defendant’s attorney sought to retain a computer forensics expert for his client or ask the Court to appoint one, if the client was an indigent defendant.

Instead, the Defendant tried to challenge the government’s computer expert at trial without having an expert of his own.  This ill advised approach followed Defendant throughout the appeals process.  Nor surprisingly, this approach failed.

On appeal, the Defendant argued that the United States District Court for the Eastern District of Virginia in Norfolk erred in admitting the Special Agent’s testimony regarding his forensic examination of a computer. Specifically, the Defendant claimed that the law enforcement computer forensics examiner lacked the requisite knowledge and training to explain how the Forensic Tool Kit software used in this case was designed and functioned and that the Government failed to offer testimony regarding the reliability, peer review, error rate, and standards of the industry for the software as required by the Federal Rules of Evidence.

This was an interesting approach and we are surprised that the Defendant and his attorneys believed for a moment that this would work.  Trying to challenge a well trained law enforcement computer forensics expert by claiming that the expert does not know what he is doing is questionable at best.  Trying to make the challenge without consulting with a competent expert in digital forensics on your side is somewhat dumb.  Was the government lacking in knowledge?  Were the proper digital forensics procedures followed?  Given that this defendant and his counsel did not hire a competent expert in computer forensics, we will never know.  The Defendant remains convicted and in prison.  You may read the full text of the opinion in the case of United States v. Springstead here.

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