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Possession Child Pornography Law in Virginia & Best Evidence Rule
Possession Child Pornography Law in Virginia & Best Evidence Rule
Midkiff v. Commonwealth (Va. 2010) Analysis
Midkiff was indicted for possession of child pornography, in violation of Virginia Code 18.2-374.1:1. After the Court of Appeals of Virginia affirmed his convictions, he appealed, challenging the admission into evidence of digital video recordings and still images of child pornography reproduced from electronic files on digital video discs (DVDs) copied from drives found in his computer.
Midkiff's challenge to the reliability of the evidence, argued that pornographic images of children were the contraband in prosecutions under Virginia Code 18.2-374.1:1, and because digital images were subject to manipulation, the court should extend the best evidence rule to those images, the record reflects that Scott was qualified as an expert and testified that a bit for bit copy of a drive is a reproduction of the actual drive without degradation and is considered forensically to be an original. She also testified that she made a bit for bit copy of the drives in Midkiff's computer. Investigator Arnold testified that he produced the photographs from the data DVD he received from Scott and the photographs were the same as he viewed on the data DVD. Scott also identified the photographs and video clips as accurate representations of the child pornography she viewed on the digital reproduction she made of Midkiff's hard drives. Midkiff made no assertions that the admitted photographs or video clips were in any way manipulatedor altered from the images that resided on his computer's drives.
The Court declined to apply best evidence while admitting bit for bit copy of computer hard drives in child pornography prosecution observing that best evidence rule is only applicable in written documents. The court noted that a forensic digital evidence scientist had been qualified as an expert and testified at trial that a bit for bit copy of a hard drive was considered forensically to be an original. She also testified that she made a bit for bit copy of the hard drives in defendant's computer and identified the photographs and video clips as accurate representations of the child pornography she viewed on the digital reproduction she made. Defendant did not assert that the admitted photographs or video clips were in any way manipulated or altered from the images that resided on his computer's drives. Based on the record, the court concluded that the printed pictures and video recordings were reliable representations of the material contained in the digital image and video recording files on defendant's computer hard drives. Thus, the Virginia circuit court did not abuse its discretion in receiving them into evidence.
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