Author Archives: TCLAW202
Opening Statement
The opening statement in any trial can be the most difficult part of the trial for the defense attorney in any case. After all, we don’t known exactly what the witnesses will say and most of the time, we are not going to put on a case or we don’t know exactly what our case will look like. We don’t have the burden of proof so we don’t really have to do anything. I am not here to give a seminar on opening statements in general so I won’t. However, there are a few points the defense attorney should cover.
While the defense attorney doesn’t know what the testimony will bring, the basic defense should well known. In fact, a rough draft of the summation should already be drafted. Thus, the jury should be introduced to the defense via the theme of the case at least in general terms. The first sentence or two should be a hard hitting statement(s) that go to the heart of the defense. Don’t waste your time thanking the jury or telling some stupid story. Your job is to sell the case, not make friends. Use your best material in the beginning and end of your opening statement. Just Google primacy and recency to learn more about why this is important. The end of the opening statement should again tie up, in general terms, why the defendant is not guilty. Of course, we use the client’s name and never call him/her the defendant.
The middle of the opening statement could introduce the jury to a number of legal concepts such as what beyond a reasonable doubt means by going over some jury instructions and a descriptive analogy. I also like to tear apart the State’s opening statement by arguing that it is 90% fluff and that they buried the meat of the case in the middle. In a successful child pornography trial, I pointed out that it took the State 22 minutes to get to the fact that my client made a statement. Why did they wait so long? Because they wanted to bury it and that is their whole strategy, bury my client’s statement because it doesn’t help them. Instead, they want to distract the jury with all this other nonsense before and after the statement when in fact, the entire case (for both sides) rises or falls based upon the client’s statement.
Finally, the opening statement should never be waived! That is insane. Some lawyers actually do it though. If you are not sure about your style, hire a litigation consultant and give the opening statement to him/her. The consultant can not only critique the statement but your entire presentation style which may need to be tweaked. Unfortunately, I have seen too many lawyers do the same boring, passionless opening statement for 30 years that they don’t want to change. As a lawyer, you can never stop improving and you will never know it all; in fact, you probably won’t know half of what you need to know even after 50 years of practice so don’t hesitate to get suggestions every now and then.
Jury Selection
Selecting a jury for a child pornography case will be extremely difficult. Unfortunately, not every jurisdiction allows for attorney conducted voir dire or an voir dire statement by the attorney. Clearly, in those jurisdictions, the attorney’s task is a little easier. Regardless, the task is clear: the defense attorney must hammer home to the jury pool that what they will hear and see will be some of the worst things they will encounter. There is no reason to sugarcoat it. Be blunt. They must understand that it is OK to say that they can’t handle it. Not everyone is cut out for this and in fact, most aren’t. In other words, its very acceptable to say no, I cannot serve on this jury.
In those cases where the attorney’s have limited participation in voir dire, the attorney should have a conference with the court ahead of time to discuss the voir dire process and how difficult it may be to pick a jury. Thankfully, New Jersey has allowed more attorney involvement in the jury selection process but it is not perfect. Some judges will allow both sides to draft supplemental voir dire questions. If you submit 20 of them, I doubt the court will use even half that number so while the attorney should get creative, you don’t want to be seen as reaching. Keep it simple. Also, check with the State to see what they will be asking for as you may find yourself on the same page with some of the questions.
The State may focus their questions more on computer knowledge than the content of the files. They may not want someone that knows little to nothing about computers as technical terms may go over their head. Neither side may want computer experts who will second guess either side’s argument because they think they know it all. Thus, most of the jurors picked may wind up in the middle.
Crafting questions to find out if prospective jurors are too squeamish for this type of case is not difficult. The difficulty comes from those jurors who are too wishy-washy to make a decision. This comes from the prospective juror trying to balance their feelings about the charges versus their civic duty to serve the jury and to please the judge who they see as an authority figure. If a judge asks a prospective juror if they can serve and they say “I guess so” or “I think so”, most judges will accept that answer. It is the defense attorney’s job at that point to question that juror and make it clear to them that they need to be 100% sure and if they are not, it is OK. If they get picked, they cannot raise their hand in the middle of the trial to tell us that they changed their mind. These files may be the most horrific things they will ever see in their life but the defendant must be given a fair trial and if they would be better suited for another case, its OK to tell us that. In my experience, 9 out of 10 prospective jurors will indicate that they shouldn’t serve after it is explained to them like that.
Virtual Child Pornography is a phantom defense
I don’t view virtual child pornography as a viable defense. Most modern video games contain characters that appear to be human. However, the technology and the skill needed to create such life like characters make it unlikely that someone will create virtual child pornography any time soon. More importantly, the real reason why this is likely to be a phantom defense is because law enforcement maintains a database of known child pornography. Because there is such a limited amount of child pornography to go around, it would be a rare case where a defendant would possess only child pornography that law enforcement has never seen before. Thus, while I am not saying that this is an impossible defense, I think it receives too much attention for one that is more theoretical than practical. Until and unless this becomes a viable defense, I will not focus on it here.
Trojan Horse Defense – Michael Fiala
I co-authored an article on this topic in 2004 that was published in the Santa Clara Law & Technology Journal. Back then, there was only one case where this defense was used and that was in a hacking case. I hear some version of this defense quite often and I have to always questions whether it is legitimate or not. Someone thinking about using this defense will often say that they clicked on something and a bunch of pop-ups came up and stuff started to download on their computer. This rarely pans out as the defendant doesn’t realize that it is often fairly easy to show how the child pornography got on the computer and chances are someone (often them) put it there.
However, the case of Michael Fiala proved that this could be a possible defense. Of course, in order to have such a defense, you need to have very sloppy police work. Thankfully, the agencies I have dealt with would have likely picked up on this and thus, the defendant would have never been prosecuted to begin with.
SODDI
The cornerstone of criminal defense is the SODDI defense which stands for Some Other Dude Did It. Its a tried and true classic that is alive and well in the defense of computer crimes. However, this defense is hampered by a few issues that I have previously mentioned on this blog. First, so many defendants confess or make some type of statement. This really prevents the defense attorney from arguing that someone else was responsible in many cases. Secondly, too many defense attorneys don’t appreciate the subtle computer forensics issues that are at work in the case. As I have previously mentioned, just because a user name performed some action does not mean that the State can prove that a specific person performed that action. Third, in the rare case where the defendant lives alone, it may become more difficult to come up with a scenario that someone else used the computer. However, absent a statement to the contrary, living alone does not prevent 100 friends from coming over on a certain day to use the computer thus opening up the defense. Instead, it just makes it less credible than a case where there are identifiable people living in the house.
There are number of forensics issues here that I will not cover that could make this defense either plausible or not viable. However, I will say that the attorney must be prepared for everything and must not leave any stone unturned. Even if no evidence on this issue will be presented in the defense’s case in chief, the defense attorney must not make arguments that could blow up on them. Discuss this issue with your consultant or expert to see how the evidence stacks up regardless of what the State has presented to you in discovery.
Mistake as to sharing
I have had great success with this defense and this is the primary defense to child pornography distribution in my opinion. It may require the defense to more or less admit possession (or not defense against it). Because the distribution must be knowing, the defense can argue that the defendant had no idea how the program worked and thus, did not know that anyone else could download it from them. This is where the client giving a statement can actually help as the State may feel compelled the play the statement to secure a possession conviction. Without such a statement, the defense will be forced to testify if this defense is to be used. Of course, if the defendant didn’t give any statement, then other defenses may be considered over this one which would prevent the defendant from testifying. Thus, while not limited to such a fact pattern, this defense may be best used where the defendant’s statement to the police already supports this defense.
However, the defendant’s computer expertise may be used against him to show that this defense is unlikely. I worked on an appeal where the defense made a bad argument using this theme only to have the State paint the defendant as a super genius with his custom built computer. The defense attorney, not familiar with a lot of technological issues, failed to adequately prepare for and respond to this counter attack. There are a number of evidence issues that can be used to argue against the introduction of such evidence and it should be fought at all costs.
Accident
Accident is one of the better defenses to child pornography cases. This defense assumes either a favorable statement or no statement given by the defendant. Here, the defense will admit that the files are child pornography and that the defendant is responsible for possessing them. However, the defendant did not knowingly possess the files because they were acquired by accident. Keep in mind that this defense will be hampered by the amount of child pornography files as well as the different number of dates that the files were downloaded.
Common defense themes include the following scenarios: the defendant downloaded a large number of pornography videos and some were child porn, in other words, he cast a wide net and caught some bad fish; the defendant was searching for music or movies and the files were mislabeled (of course, they should all be mislabeled); or the defendant was searching for adult pornography and some of the search terms were contained in a child pornography file with a large name. Of course, there are issues that have to be tackled with all of these defenses in order to perfect them. For example, if the defense is focused on the search term, all of the child pornography files should have the exact same search term and there should be adult pornography with that same search term.
Also keep in mind that this defense may open the door to 404(b) evidence that would otherwise be inadmissible.
Not really a child
I am contrasting this defense from the defense of virtual child pornography. Thus, file does depict a real person but that person does not meet the definition of a child in that jurisdiction. Luckily, I think most prosecutors will not take a borderline case to trial. However, it has happened. (Lupe Fuentes). Besides prosecutorial discretion, one of the reasons that this is rare is that there is a database of known child pornography that is maintained by law enforcement across the country. These files have been authenticated as child pornography in other courts and in some cases, law enforcement can actually prove who the child was and how old he/she was when the contraband file was created. Thus, this is generally not an issue.
The more likely scenario is that some of the files will be borderline and the State may try to bring these videos in to increase the number of files presented to the jury. A pre-trial motion on this issue should solve this problem. Doctors are sometimes brought into to testify as the anatomy of the child to prove that the person depicted is of a certain age.
Program installation required user to set to share – counter, can they prove defendant installed it?
Another favorite topic for the State is that the installation of the P2P program required the user to configure the program one way or another. For example, when certain versions of Limewire were installed, the user is notified (sometimes several times) that anything downloaded is shared and that the default settings need to be changed to fix this. The user may also be prompted to indicate what folders are to be shared. Thus, it is made abundantly clear that this is a file sharing program and that anything downloaded will be shared.
If the State is going to make this argument, they should have the exact same program that is on the defendant’s computer to replicate the installation. The State tried this in one case I had but they could not find the exact version of the program. They found versions before and after that but I argued that this proves nothing. The Court agreed and the information was excluded which went a long to way towards winning the case.
The State’s argument here also assumes that the defendant installed the software. Again, absent an admission, there is no evidence that the defendant is the one that installed this software. Thus, the State’s entire argument hinges on an assumption.
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.
The Child Porn Lawyer 