Merritt Baer


The Sixth Amendment’s Confrontation Clause guarantees the accused the right to confront witnesses against him. In this article I examine child pornography prosecution, in which we must apply this constitutional standard to digital forensic evidence. I ask, “Who is the witness to an Internet crime?”

The Confrontation Clause proscribes the admission of hearsay. In Ohio v. Roberts, the Supreme Court stated that the primary concern was reliability and that hearsay might be admissible if the reliability concerns were assuaged. Twenty-four years later, in Crawford v. Washington, the Supreme Court repositioned the Confrontation Clause of the Sixth Amendment as a procedural right. Even given assurances of reliability, “testimonial” evidence requires a physical witness.

This witness production requirement could have been sensible in an era when actions were physically tied to humans. But in an Internet age, actions may take place at degrees removed from any physical person.

The hunt for a witness to digital forensic evidence involved in child pornography prosecution winds through a series of law enforcement protocols, on an architecture owned and operated by private companies. Sentencing frameworks associated with child pornography similarly fail to reflect awareness of the way that actions occur online, even while they reinforce what is at stake.

The tensions I point to in this article are emblematic of emerging questions in Internet law. I show that failing to link the application of law and its undergirding principles to a digital world does not escape the issue, but distorts it. This failure increases the risk that our efforts to preserve Constitutional rights are perverted or made impotent.



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