Child pornography cases can be prosecuted in both state and federal court. However, typically, they are prosecuted in federal court because in federal court, there are mandatory minimum sentences that apply. The prosecutor uses those as leverage to try exact plea agreements from people who wouldn’t otherwise plead guilty. For this reason it is important if you are facing federal child pornography charges that you consult with a Maryland federal child pornography lawyer who can guide you through the legal process and advocate on your behalf.
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In a child pornography case, the prosecution has to prove either receipt or possession of the images. Given that anyone who is accused of possessing child pornography, except those accused of producing it, somehow received it, it allows a prosecutor vast discretion in charging decisions, because while possession of child pornography does not carry a mandatory minimum sentence, receipt carries a mandatory five year jail sentence.
So the highly contested issues are did the person knowingly receive or possess an image of child pornography, usually on a computer. That gets us into issues of who had access to the computer and who had access to the images. If the images are on a phone, who had access to the phone? Was the computer or phone hacked by outside source? Those type of issues arise. Then, in regard to the images at issue, are they in fact child pornography? Child pornography is called a “term of art,” It’s a legal term that means that it is an image, electronic or otherwise, or a picture that shows someone who is under the 18 engaged in a sexual act. That is another hotly contested issue in the sense that sometimes there is an issue of the age of the person depicted in the image and whether that age be determined. Sometimes you can’t tell, but the government will bring an expert to try and say well, we could tell from the genitalia depicted that this is a person who is under 18 or this is a person who is under another age, so that becomes an issue. Also, is the image actually pornography? Does it show someone engaging in a sexual act as opposed to being what is called erotica, which is not pornography?
These are all elements that need to be proven by the prosecution.
Typically, the government uses the images that are transmitted back and forth between people online. So when someone is arrested, if they are arrested at their home or place of business, the government will typically get a search warrant. Then they will try and search the person’s phone, computer, or other electronic devices to see if there are other images of child pornography on those devices. The government relies heavily on electronic communications so they will check text messages, Skype calls, or recorded phone conversations to prove their case in these types of situations.
Generally, what the government will do is have an undercover officer involved in chatting; that undercover officer will testify at trial, and then they will have an officer who gathers the evidence. They will then have that officer, or the ones who did the gathering of evidence testify.
It’s important to know federal prosecutors particularly in Maryland are over zealous in their approach to these cases and they make sure that these cases are investigated to the utmost degree. They can be hard-headed in their approach to cases as well. So it’s important to know that they can be very difficult to deal with, and you have to be aggressive in your own right in order to deal with that type of prosecutor.