Usernames and Passwords – counter, usernames are default, password could be given to anyone
In an effort to prove that the defendant is the one responsible for possessing the child pornography, the State may try to argue that “the username” was logged in when the illegal activity occurred. Of course, this assumes that there is some magic force that prevents anyone else from using that person’s username. Clearly there is not. Anyone with access to that computer could have done it. Absent a direct admission or a statement that no one else had access to the computer, the State cannot equate a username with a specific user and this issue should be highlighted in cross examination.
It gets even better for the State if the computer is password protected. Surely this proves that only the Defendant could have possessed the child pornography, right? Wrong! Again, is there some force in the universe that prevents a person from giving a password to anyone? Password is the most common password in the world so passwords can be guessed or shared with others such as friends and loved ones. Likewise, how many people keep their password on a post-it-note right by the computer? Couldn’t anyone have seen this and logged onto the computer? What is the defendant forgot to log out? Anyone could have then continued to use the computer. Clearly, this is a non issues and these arguments and other should be made strongly.
Reading Search terms = knowledge – counter, can they prove terms were typed in vs. mass download
The State loves nothing more than to read out load all of the disgusting search terms of the contraband files. Some of them contain dozens of child pornography terms and phrases. However, some of these terms may be completely innocent. Just because some of these search terms are related to child pornography doesn’t mean that the defendant used those terms to find the files.
First, files containing the word sex will come up in search results regardless of what other terms are included in the file. Some files are misleading and the State will try to de-emphasize this. Finally, this may all assume that the files were searched for using any keyword. With a P2P program, the user can find another user and then download all of their files. Thus, child pornography can be accidentally downloaded by not paying attention to what files the other person is sharing. Unless the State can actually show what terms were typed into the program’s search box, everything else is just speculation and should be called out as such.
Number of different days – counter, time is not linear on a computer
In order to show lack of mistake/accident, the State will hammer home (when applicable) that the contraband files were downloaded over a number of different days. This is where computer forensics knowledge comes in handy. Time is relative on a computer. The computer only knows what time it is because you tell it what time it is. If you want, you can turn back the clock 10 years on your computer. Likewise, there are some other issues that can impact that time on your computer such as viruses and malware. Finally, in cases of P2P software, it is possible to start a download one day and then finish it days or weeks later. This may cause the creation date to be different since the file is not moved into the download folder until after it is complete. Thus, one accidental batch of downloads may appear to be several. This is an issue you will want to check with your forensics expert.
Ratio between adult pornography and child porn – counter, did they check everything?
The State may try to hammer home the ration between child pornography and adult pornography to show that this wasn’t an accident and that the defendant’s sexual appetite is clearly focused on children. Of course, this ignores the fact that adult pornography may be stored on other storage media that was either not found or not tested. Likewise, most adult pornography is streaming where as most child pornography is not. Thus, the defendant may have 30 child pornography videos but over the course of time, may have viewed 3000 adult pornography videos that did not download to his/her computer.
Length of videos – counter, don’t need to watch the whole thing
In child pornography cases involving videos, the state may argue in summation that all of the videos add up to X number of hours and that no one needs that many hours of child pornography or that the total length proves one thing or another. Of course, this assumes that the defendant was forced to watch each video. Most jurors have probably watched some type of video on a computer or a website like YouTube and they have all probably skipped around. The defense should highlight with the forensic expert that even if they can prove the file was opened, there is no evidence that the person opening the file did not immediately close the file therefore only watching a second or less. Likewise, if the jury was shown only a few seconds of each video, the argument should be made that there is no evidence that the defendant watched any more or even as much of the videos as the jury.
Number of videos – counter, how many watch
The State may make a big deal out of the number of contraband files that the defendant possessed on the computer. The more files, the more guilty the defendant because it will be less likely that these files were obtained by mistake. Of course this presupposes a number of issues that I will not get into here. The bottom line is that the defense should be prepared to argue that, absent a confession directly on this issue, it doesn’t matter how many files the defendant had since there is no evidence that the defendant watched more videos than what his statement indicated. For example, if the defendant describes watching two videos but has two hundred, there is no evidence that he/she watched any of the other 198 videos.
Motion in limine to keep out videos per stipulation
In most child pornography cases, the defense will not turn on whether or not the child pornography was actually child pornography. Thus, the defense can stipulate to this element of the defense to avoid having the State show the contraband files to the jury. Of course, the State will strongly resist this. They know that by showing these images to the jury, some will be so upset that it may be difficult for them to give the defendant a fair trial. When I first made this argument, there was no real case law on this topic. Luckily, there is now.
In U.S. v. Cunningham, the Third Circuit said that “unless the Court determines that, considering the potential of unfair prejudice, the probative value of a proposed video excerpt is so minimal that it need not watch that excerpt, the Court must view the proposed video excerpts to not only assess their probative value and potential for unfair prejudicial impact but also to appropriately evaluate their admissibility in light of Rule 403’s concern with redundancy”.
In Cunningham, the Court didn’t even want to watch the videos (who would want to?) but that shouldn’t be an issue with New Jersey’s May hearings. Thus, after the Court makes a ruling as to the May hearing the defense should consider then stipulating to the images that the Court found admissible. Then, the defense can argue that pursuant to U.S. v. Cunningham, that the probative value is therefore minimal and the horrific nature of the videos is incredibly prejudicial.
Following an adverse ruling on this issue, defense counsel should then ask in the alternative for the State to be limited in the amount of videos it shows the jury as well as the amount of each video is shown.
May hearing
To deal with the issue of whether the child pornography is in fact child pornography and not virtual child pornography or adult pornography, courts in New Jersey will hold a May hearing named after the case of State v. May. In a May hearing, the images/videos will be shown to the Court and the Court will indicate which files will be permitted to be shown to the jury. I don’t think most cases in New Jersey will really involve a hotly contested May hearing however, there may be a dispute as to a few videos that the State doesn’t realize are actually adult pornography.
The attorney can also use this as a 104 hearing to keep out some videos that might be too prejudicial to be shown to the jury. If there are 20 videos, the defense can argue that they will stipulate to some or all of them so that the jury will be shown less than 20 and that the most horrific files should not be shown.
Trenton Child Pornography Lawyer
Motion to suppress statement
This may be the most important motion in the case because if the client made a statement, chances are they hung themselves in it. It is the most frustrating part of criminal defense because if the statement comes in, it will foreclose a number of defenses thus limiting the defendant’s chance at trial. There are countless articles, books and cases on Miranda motions so I am not going to attempt to recreate that here. However, I will make a few points.
First, file the motion even if the statement may be helpful to the defense. I would rather have no statement then any statement in almost every case. Second, consider having the defendant testify so as to gauge their reaction to the witness stand, cross examination, etc. This will allow the attorney to decide if the defendant should testify at trial. I have used this successfully to determine that the defendant will fold under cross examination and that there is no way they could be called at trial.
An issue not focused enough at a Miranda hearing is the demeanor of the parties. Since most statements are now videotaped in New Jersey and other jurisdictions, highlight for the court the demeanor of the parties and the psychological tactics used. This can also be brought out under cross examination. It also helps if the defendant starts crying right before the admission when there was previously a denial. I argue that this transition point is where the defendant’s will was overcome and he was broken down by the detectives. This argument has been successful in my practice. Regardless, you are painting a nice picture for appeal.
Unfortunately, child pornography defendants seem all too eager to spill the beans and thus, they may not break down. Instead, they may start confessing right away even through some tears. It may be hard to argue they they were broken down so quickly. Instead, the attorney may want to focus on any coercive statements that were made to the defendant to get him/her to testify. While there is not a lot of case law indicating that same will lead to victory, it is still an argument to be made. Furthermore, cross examination on these issue (i.e. lies) can be later used at trial. Thus, a skilled defense attorney can use any testimonial hearing as a form of deposition.
Motion to dismiss the indictment
I am a big fan of filing a motion to dismiss the indictment. The motion will rarely be won but it could expose weakness in the State’s case that could lead to further plea negotiations. For example, I filed a motion to dismiss the indictment in a child pornography distribution case. When we conferenced the case with the judge, he indicated that we had a good case and that the State should strongly consider taking state prison time off the table. The judge, being a talented litigator before he became a judge, gave great insight into the State’s case. In fact, we strongly considered a bench trial as a result. Thus, even though we lost the motion, it really helped open a number of avenues for discussion that were not on the table previously.
There are number of areas for the defense to attack the indictment including but not limited to: failure to present Hogan evidence, presenting prejudicial evidence, failure to explain the law properly or completely as well as failure to present enough facts to sustain the charge. Keep in mind that not all problems with the indictment are fatal. While rare, I have seen cases where the State re-presented the case to the grand jury to cure the defects in the indictment.
The Child Porn Lawyer 