Category Archives: Defenses
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.
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.
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.
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 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.
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.