Kentucky Court of Appeals criticizes attorneys' lack of knowledge on technological issues

In Crabtree v. Commonwealth, the Kentucky Court of Appeals criticized trial counsel's failure to properly understand the technology involved in a child pornography case. No. 2011-CA-000452-MR (Ky. Ct. App 2012). The defendant had used a peer-to-peer networking service to download the files. On appeal, the conviction was affirmed.

The case concerned a college student who took his computer to be repaired, and while there, the technician discovered file names identifying them as child pornography. The computer was turned over to the police. When the defendant went to the police station to get his computer, he acknowledged in writing that he had  viewed child pornography on the computer but that it "sickened him." The files had been downloaded using Limewire, and their filenames clearly expressed their content as child pornography. The defendant was convicted on 65 counts of possession.

On appeal, the defendant argued that the evidence was insufficient to support the conviction, but the court readily concluded that the computer files and the confession were all that was needed. The court carefully explained how the technology works and did so in clarity rarely seen by any court. The court of appeals also wrote:

We note that this case demonstrates a need for technical training among legal professionals.  There were several instances during the trial when it appeared that counsel for each party attempted to elicit testimony from the experts but failed because of confusion of technical terms.  In this particular case, the evidence of guilt was overwhelming, but we anticipate that this communication gap could be damaging in cases with weaker evidence.

The court's suggestion is one to which few people would object. Technology issues are becoming so common in the courtroom today, yet many practicing attorneys are not properly trained to deal with them. Many organizations exist to train prosecutors how to deal with such cases, but many of them and nearly all defense attorneys are not exposed to such assistance.

The defendant also argued that the defense of "temporary innocent possession" should have been put in the jury instructions. The defense 'is available when a person has taken “possession of a controlled substance without any unlawful intent.'" The court, however, held that the defense was not available here as the filenames, confession, and images show that the possession was not, in fact, innocent.