Viewing is possession – counter, absent statement, cannot prove viewing
In New Jersey and in some other jurisdictions, mere viewing makes ones guilty of possession. Of course, this has to be a knowing viewing so the accident defense still works. However, if the defendant at least admits to viewing multiple files, this theory start to lose credibility and thus, the defendant may be found guilty of possession.
Absent a confession, it will be difficult for the State to prove that the contraband files were ever viewed. The State may try to argue that the files were accessed at a specific time but access does not equate to viewing. In fact, access doesn’t even mean that a human did anything with the file. The system could have caused the filed to be accessed for any number of reasons.