2009 Louisiana Laws TITLE 46 Public welfare and assistance :: RS 46:1845 Protection of privacy of a victim when evidence pertains to child pornography, video voyeurism, or obscenity

§1845.  Protection of privacy of a victim when evidence pertains to child pornography, video voyeurism, or obscenity

A.  Notwithstanding any other law to the contrary, after the institution of prosecution under any statute listed in R.S. 46:1844(W)(2), or any other criminal law, the district attorney may file a motion for a contradictory hearing, with the defendant, to determine whether the court should issue an order to protect the privacy of the victim by limiting access to child pornography evidence, video voyeurism evidence, or involuntary obscenity evidence obtained in the investigation of the offense.  The victim may request the district attorney to file the motion.  The court may order the hearing on its own motion.

B.  For purposes of this Section:

(1)  "Child pornography evidence" means evidence tending to prove pornography involving a juvenile as defined in R.S. 14:81.1.

(2)  "Involuntary obscenity evidence" means any evidence tending to prove the conduct proscribed in R.S. 14:106(A)(2)(b) that is unlawfully possessed.

(3)  "Stored data" means data, which although not a tangible visual depiction, may be used to render a tangible visual depiction through the use of an appropriate device or process.  Stored data shall include but is not limited to digital or analog data stored on any of the following mediums:  film, videotape, tape, hard disk, floppy disk, magnetic tape, electro-optical disk, CD, DVD, semi-conductor memory, memory stick, Read-Only Memory, flash memory and any other form of physical, electric, magnetic, electromagnetic, optical or electro-optical media.

(4)  "Video voyeurism evidence" means any evidence tending to prove video voyeurism as defined in R.S. 14:283.

(5)  A "victim" is any person who appears in any evidence defined in Paragraph (1), (2), (3), or (4) of this Subsection.

C.  At the hearing, the court shall inspect only tangible visual depictions, and any stored data which may be used to create a tangible visual depiction obtained during the investigation of the offense.  The court may view the evidence in camera.

D.  If the court finds probable cause that the evidence tends to prove child pornography, video voyeurism, or involuntary obscenity  and that it is in the interest of justice to take action to protect the privacy of a victim, it shall issue an order to limit access to the evidence and copies thereof.  The order shall remain in effect until modified or rescinded by a court of competent jurisdiction.

E.  The court, upon motion of the district attorney, after a contradictory hearing with the defendant, may order the destruction of the evidence tending to prove child pornography, video voyeurism, or involuntary obscenity.

F.  When making a ruling pursuant to the provisions of this Chapter, the court shall:

(1)  Consider the legislative intent expressed in R.S. 46:1841.

(2)  Balance the following interests:

(a)  The right of government to exercise the police power to promote, protect, and preserve the general welfare, safety, health, peace, and good order of the public by proscribing criminal behavior and providing punishment therefor.

(b)  The right of a person charged with a crime to have a fair, impartial, and public trial.

(c)  The right of the public to know.

(d)  The right of an individual to own private property and not be deprived thereof without due process.

(e)  The right of a person to privacy.

(f)  The freedom of speech rights of the media and the public.

Acts 2003, No. 1245, §3.