Category Archives: The State’s Tactics
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.
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.
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.
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.
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.
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.
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.
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.