Patrick T. McNallyAttorney at Law

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Can a procedural mistake form the basis of an appeal?

Regardless of the criminal charge, an accused has a right to a fair trial. This principle of the American justice system is aptly illustrated in a recent example. In a highly controversial and pending child pornography case, the defendant was able to obtain a procedural victory.

Specifically, investigators from the Federal Bureau of Investigation used a type of malware to obtain electronic evidence against the accused. The process, a network investigative technique, is actually akin to hacking. The malware was able to identify the viewers of certain illegal websites by a trace back to their personal computers.

The federal district judge presiding over the case ordered the prosecutors to reveal the code they used in hacking the accused’s computer. When they refused, the judge ruled that all evidence obtained against the defendant using the malware technique would be inadmissible.

To the extent that disclosing the code would have jeopardized national security or put federal agents at risk, the government might have requested it respond under seal. However, prosecutors in the case never made those assertions. The basis of their refusal remains unclear. What is certain, however, is that the fruit of the poisonous tree exclusionary rule remains intact. Evidence gathered through illegal methods is generally excluded from trial.

As a law firm that helps criminal defendants, we understand the importance of protecting a defendant’s right to procedural due process and holding prosecutors to their burden of proving guilt beyond a reasonable doubt. If this right was compromised at trial, a criminal appeal on this basis may be available.

Source: Courthouse News Service, “Without Code, Judge Tosses Evidence in Child Porn Case,” June Williams, June 1, 2016

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Patrick T. McNally, Attorney at Law
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