Business of Law

Lawyer Acting as Expert Witness Violated Child Porn Law With Court Exhibits, 6th Circuit Rules

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An Ohio lawyer serving as an expert witness appropriately became a defendant in criminal and civil cases when he created child pornography by digitally altering stock photo images of children engaged in innocent activities, a federal appeals court has ruled.

A federal district court judge had said that attorney Dean Boland was shielded by Ohio state law from civil liability to the parents of the two children whose photos he used in court as an expert witness on behalf of his clients. But the Cincinnati-based 6th U.S. Circuit Court of Appeals overruled, holding yesterday that federal law contains no such expert witness exemption and instead expressly requires that any child pornography exhibits be closely supervised by the government, Courthouse News Service reports.

Boland entered into a deferred prosecution agreement in 2007 with federal prosecutors in Cleveland and made a public apology in the Cleveland Bar Journal concerning his use of the exhibits as an expert witness in several criminal cases. For example, Boland took the head of one child from a photo, attached it to a photo of the body of a woman engaged in sexual activity, and then altered the woman’s body to look like a child’s body, according to CNS and the 6th Circuit’s written opinion (PDF).

However, Boland was subsequently sued by the parents of the children whose images he altered for the exhibits, who can now proceed with their claims.

“Even when federal law allows participants in the criminal justice system to possess contraband, it does not allow the creation and possession of new contraband, ” the 6th Circuit said yesterday in its opinion. Likewise, “Individuals cannot defend criminal charges by having their lawyers or witnesses initiate new offenses.”

The 6th Circuit adds that Boland could legally have presented similar exhibits in court, though, if he wished to do so to try to prove the difficulty of establishing whether a criminal defendant knew he had child porn in his possession:

“If Boland wished to use pornography to make the point, he could have morphed an image of an adult into that of a minor engaging in sexual activity. Boland indeed did the latter as part of his preparations, and had he stopped there we would not be here,” the 6th Circuit writes. “These images are not prohibited by federal law, see 18 U.S.C. § 2252A(c), and are protected by the First Amendment to the extent they are not obscene.”

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