AB 528 amends Penal Code section 1054.10 to remove existing exceptions that allowed attorneys, defendants, family members, and court‑appointed assistants to receive or reproduce copies of child pornography evidence. Instead, the bill requires any material that meets the federal definition of child pornography (18 U.S.C. §2256) and any hardware or media that contain it to stay in the custody of a law enforcement agency, the prosecution, or the court.
Under the bill, courts must deny requests to copy, photograph, duplicate, or reproduce such material so long as the prosecution makes the material reasonably available for inspection, viewing, and examination at a prosecution office, law enforcement facility, or court facility. Victims (and their counsel or experts) also gain on‑site access for material depicting the victim, and the statute expressly allows redaction to protect third‑party privacy.
The measure creates potential new costs for local agencies and triggers the state‑mandate reimbursement mechanism if the Commission on State Mandates finds a mandate.
At a Glance
What It Does
AB 528 bars copying, photographing, duplicating, or reproducing any material that constitutes child pornography and requires that such material, plus any hardware or media containing it, remain in the custody of law enforcement, the prosecutor, or the court. The statute conditions that prohibition on the prosecution making the material reasonably available for inspection, viewing, and examination at specified secure locations.
Who It Affects
Directly affects prosecutors, law enforcement custodians of digital evidence, defense counsel and their experts, victims and victims' counsel, and forensic labs that previously imaged or retained copies of seized media. It also affects courts responsible for supervising on‑site inspections and redactions.
Why It Matters
The bill changes standard discovery practice for child sexual abuse material by preventing defense teams from obtaining copies or forensic images in most circumstances, shifting how defense experts can inspect evidence and increasing the custodial responsibilities and logistical burdens on public agencies.
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What This Bill Actually Does
AB 528 recasts how discovery and physical custody operate when child pornography is part of the charged material. The bill takes away the prior statutory route that permitted disclosure of copies of such material to defendants, family members, employees of counsel, or court‑appointed assistants, and instead requires that the material and any device or media housing it remain under the control of a law enforcement agency, the prosecution, or the court.
The statute makes a categorical prohibition on copying, photographing, duplicating, or otherwise reproducing the material if the prosecution provides the defendant (and their counsel and any proposed trial experts) with a reasonable opportunity to inspect, view, and examine the evidence on site. The bill defines “reasonable availability” by specifying locations where inspection must be allowed: the prosecution’s office, a law enforcement facility, or a court facility.
In practice, that means defense teams can see and examine the original material, but cannot ordinarily take possession of or create independent forensic images while the prosecution fulfills its on‑site inspection duty.On the victim side, AB 528 also ensures that victims (per the federal definition referenced in the text) and their attorneys or expert witnesses have the same on‑site inspection rights for material depicting the victim, though copying remains prohibited. The bill permits redaction to protect unrelated third parties’ privacy when making material available.
The statute ties the definition of child pornography to 18 U.S.C. §2256, so federal definitions and concepts about what constitutes such material govern application.Finally, the bill signals potential fiscal consequences for counties and local agencies that must host secure inspection environments or otherwise increase custodial handling of sensitive digital evidence; it contains a procedural clause that would trigger reimbursement through the Commission on State Mandates if the Commission finds the bill imposes state‑mandated costs on local entities.
The Five Things You Need to Know
AB 528 amends Penal Code §1054.10 to require that any material meeting the federal definition of child pornography and any hardware or media containing it remain in the custody of law enforcement, the prosecution, or the court.
The court must deny any request from a defendant, defense attorney, employees of counsel, or anyone else to copy, photograph, duplicate, or reproduce the material so long as the prosecution makes the material reasonably available for on‑site inspection.
The statute defines “reasonably available” by naming three inspection locations: the prosecution’s office, a law enforcement facility, or a court facility; inspection must be available to the defendant, defense counsel, and proposed expert witnesses.
Victims and their attorneys or experts may inspect material that depicts the victim at the same specified locations, but they are also barred from copying or reproducing the material; the prosecution may redact portions to protect third‑party privacy.
The bill references 18 U.S.C. §2256 for the federal definition of child pornography and includes a clause triggering state‑mandated local costs and potential reimbursement under the Commission on State Mandates.
Section-by-Section Breakdown
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Custody rule and federal definition reference
This paragraph establishes the baseline custody rule: any material that qualifies as child pornography, and any device or media containing it, must remain under the care, custody, and control of a law enforcement agency, the prosecution, or the court. By referencing 18 U.S.C. §2256, the bill adopts the federal statutory definition rather than creating a novel California standard, which makes the threshold for application tied to established federal case law and statutory interpretation.
Prohibition on copying or reproducing evidence
This provision instructs courts to deny requests by defendants, counsel, employees of counsel, or anyone else to copy, photograph, duplicate, or reproduce child pornography material so long as the prosecution makes the material reasonably available for inspection. The operative command is mandatory (‘shall deny’), which limits judicial discretion to allow reproductions when the prosecution complies with the reasonable‑availability requirement.
What counts as reasonable availability
Paragraph (2) operationalizes ‘reasonable availability’ by listing locations where inspection must be permitted: the prosecution’s office, a law enforcement facility, or a court facility. It explicitly extends inspection rights to the defendant, the defendant’s attorney, and any individual the defendant seeks to qualify as an expert at trial. The provision leaves open how ‘inspection’ is executed in practice — for example, whether forensic imaging can occur on‑site under supervision — but anchors access to those secure venues.
Victim access and redaction authority
Subdivision (c) grants victims, their counsel, and their proposed expert witnesses reasonable access to inspect material that depicts the victim, at the same secure locations used for defense inspection, while maintaining the ban on copying. It adds an explicit authorization for redaction to protect the privacy interests of third parties, which gives prosecutors and courts a tool to balance disclosure with privacy but raises practical questions about redaction standards and timing.
State‑mandate and reimbursement clause
This short provision requires that if the Commission on State Mandates finds the act imposes state‑mandated costs on local agencies or school districts, reimbursement must follow existing procedures under the Government Code. It does not itself appropriate funds; it only establishes the procedural pathway for potential reimbursement claims.
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Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Victims of child sexual abuse material – Gain explicit statutory access to inspect material that depicts them (or to have counsel or experts inspect it) while insulating the material from wider distribution, which can further protect privacy and limit re‑victimization.
- Prosecutors and law enforcement – Receive statutory cover for retaining custody of sensitive media and a clear mechanism to prevent circulation of child pornography evidence outside secure facilities, reducing risk of unauthorized dissemination.
- Courts – Get a bright‑line rule to deny copying requests when the prosecution provides on‑site access, simplifying judicial decisions about permitting reproduction of extremely sensitive material.
Who Bears the Cost
- Defense attorneys and defendants – Lose routine access to copies or forensic images, which can constrain independent testing, slow defense preparation, and complicate the ability to challenge forensic conclusions.
- Defense‑hired forensic experts and private labs – Face practical barriers because they cannot take custody of evidence to run independent analyses; they may need to adapt procedures to work within prosecution or court facilities or rely on supervised, time‑limited inspections.
- Local law enforcement and county prosecutors – Bear increased logistical and security burdens to host inspections, provide supervised access, maintain custody of hardware and media, and potentially perform or supervise forensic examinations, creating potential unfunded expenses unless reimbursed.
Key Issues
The Core Tension
The bill forces a trade‑off between two legitimate objectives: preventing further circulation of extremely harmful material versus preserving a defendant’s ability to conduct independent forensic testing and mount a full defense; the statute leans toward containment and victim privacy at the likely expense of easy, off‑site forensic access for defense teams.
AB 528 prioritizes limiting the dissemination of child sexual abuse material, but it leaves several operational questions unanswered. The statute forbids copying while promising on‑site inspection rights, yet it does not specify technical protocols for defense experts to perform forensic analysis without creating an independent image.
For digital evidence, meaningful testing typically requires bit‑for‑bit imaging; the bill’s silence on whether supervised forensic imaging on‑site is permitted means parties and courts will have to litigate or develop local practice standards about what “inspection” entails and how to preserve evidentiary integrity during on‑site examinations.
Implementation also creates a logistical trade‑off. Hosting secure inspections and accommodating forensic work within prosecution or law enforcement facilities will require dedicated space, equipment, personnel to supervise access, and protocols for redaction and chain‑of‑custody handling.
Those costs fall primarily on local agencies, and while the bill references the Commission on State Mandates and reimbursement statutes, that process can be lengthy and uncertain. Finally, the redaction provision protects third parties but raises timing and transparency issues: extensive pre‑inspection redactions could limit the defense’s ability to identify exculpatory information, while late redactions could delay discovery and trial preparation.
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