Defending an internet child pornography case in Texas usually involves three main issues: the defendant did not knowing or intentionally possess child porn; the images are not child porn; or the search of the computer was done illegally.
It is important in most cases to hire a computer expert to forensically inspect your client’s computer. A forensic computer specialist can even locate information from a hard-drive that has been deleted. It is important to look at the file properties. The forensic computer specialist can determine the dates and times images were downloaded as well times the images were accessed. This information may be useful to show that others had access to the computer during the times of creation or during the times when the pornography was accessed.
The path the pornography took within the computer may also provide a defense. If the computer images of child pornography are located in the temporary internet file files or in a cached file, then the image files could be on a client’s computer without their knowledge. Also, images can be on a computer through viruses, Trojans and other programs that let remote users control a computer. E-mails, chat rooms and instant messaging can be a source of unsolicited child pornography. Also, how the internet is accessed is important in the defense, is it accessed via a wireless connection or is it hardwired; is the computer on a network or is it a standalone system.
Whether an image constitutes child pornography is not as clear cut or as easy as it would appear. Images can be manipulated digitally so that what appears to be a minor is not a minor. Also, the State has the burden to prove the age of the person in the image. The defendant does not have to prove the person depicted is over the age of 18, the State must prove that the person depicted is under the age of 18. There are some images on the internet where the age of the person is known and a couple of images where the person in the image will even occasionally appear to testify in trial as to her age at the time the pictures were taken. In 2003 the legislature removed the defense that the defendant had a good faith reasonable basis in believing that the person depicted was 18 years of age or older.
Finally a person charged with possession of child pornography should through his attorney hire a forensic psychologist or a forensic psychiatrist to evaluate the defendant. If efforts to have the case thrown out through your forensic evaluation and motions to suppress are unsuccessful the reports of a psychologist or psychiatrists may assist in getting some relief. Some prosecutor’s may be willing to provide a much better offer with a favorable forensic evaluation. Also, judges and juries can sometimes be persuaded by the testimony of a forensic evaluation if it is thorough and in sufficient detail.
United States Federal Courts have occasionally gone well below the guideline ranges in accessing punishment in child pornography cases based upon favorable reports by psychologists. The United States Supreme Court even found there was no error when a lower Federal Court went below the guideline range based in part on the psychologist’s report. Texas State Judges can also be occasionally moved by compelling testimony from valid studies. This author in a recent case had a client given a relatively short period of deferred adjudication with no jail time in a possession of internet child pornography in large part based upon our expert testimony. However, keep in mind that many courts do not accept the validity of the able assessment test and the penile plethysmograph.
Child pornography, online solicitation of a minor and criminal solicitation of a minor are similar offenses with overlapping issues and defenses. The criminal defense attorney has to be aware that any defendant charged with any of the above crimes may also be threatened with additional charges after the police department forensically inspects the defendant’s computer.
