The key to these types of cases is the electronic evidence, whether it be electronic chat, text messages, or recorded Skype calls. A lot of times there is this electronic communication between a client and an undercover officer and a Maryland federal child pornography lawyer has to review those really in minute detail. It’s important to understand the technical side of the transmission of the images to understand when they were transmitted, how they were transmitted, and if they were in fact transmitted in a form that made them viewable.
Also, where did the image end up? If they were on a client’s computer, then there might be evidence of hacking. In other words, maybe someone was storing images on a large hard drive to keep suspicion away from them. Unfortunately, there are ways that hackers can do that. Those are the main things that an attorney will look for in the information the government provides or their discovery.
A key strategy is to dispute the validity of the electronic evidence. That’s one key strategy because a lot of times, the police officers who find the information are not particularly well trained in how to collect electronic evidence. That can be a fertile area for the defense because if you can show that the police officer didn’t know what they were doing when they investigated the case, that can create a reasonable doubt in a jury’s mind.
Another strategy is to explore a client’s schedule and to show they were not the only person with access to a computer. Specifically, you want to show that they were not in fact in the vicinity of the computer when it was used to download images.
Lack of Knowledge That Person Was a Minor
It’s not a legal defense, but it may end up being de facto defense if there are very few images and if they’re only of one person and the person looks to be of legal age. You could say credibly I didn’t know that person was a minor while that might be a de facto defense, legally not knowing a person is a minor is not a defense legally.
The Images Did Not Depict a Minor
If the images do not actually depict a minor, that is a defense. If the person is over 18, the images do not constitute child pornography because they do not depict a “child.”
Not Knowingly Possessing the Child Pornography
To not knowingly have child pornography on your computer is a defense. However, the issue of whether someone viewed it is a tricky concept because the downloading of the image constitutes a crime if it’s done knowingly. Therefore, not opening the image doesn’t necessarily protect you. It might provide the basis of a defense that would be, I didn’t know that I was downloading child pornography, but then that would then lead to an exploration of texts, emails, chats that surrounded the potential downloading of the image and the government can try and prove their case through other means.
The main thing involved in developing a strong defense is an exhaustive look at the case. Specifically, spending a lot of time looking at the electronic evidence, spending a lot of time interfacing with your client, potentially getting a computer expert to examine the computers at issue, and just a lot of time and energy spent on the facts of the case.
There are Fourth Amendment issues that play a part because the search and seizure of electronic evidence and what electronic evidence is protected is an area of constitutional concern. What expectation of privacy do people have on their phones and how can law enforcement gain access to that are questions that are another huge area of constitutional litigation. These constitutional issues which come into play in child pornography cases.
It is crucial to look for a criminal defense lawyer who has experience dealing with these cases. One who is constantly educating himself about the cutting edge issues that are involved in litigating these cases, that has experience dealing with the technical side, the computer side, and someone who works very hard because the results you get in litigating criminal cases are directly related to how much time you put in.