Blog Archives

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.

Hackensack Child Pornography Lawyer