Due to the stigma of child pornography charges and the severe penalties associated with them, it is imperative that if you are accused you consult with a DC federal child pornography lawyer as soon as possible to discuss your case and begin building a defense. An experienced federal defense attorney can assist in protecting your name and ensuring your rights are protected throughout the criminal process. To learn more call and schedule a consultation today.
There are three ways a person can be charged with possession or receipt of child pornography:
The first is where law enforcement, while patrolling the internet, is looking for digital evidence that someone is either trading, downloading, or otherwise possessing child pornography. If law enforcement believes they have enough evidence they will obtain a search warrant. When they execute that search warrant, meaning they come into someone’s house, if they find a person either actively looking at or downloading child pornography, they will arrest that person typically on the spot and take them to the police station. They will then be processed and taken to court.
The second way is where an investigation is done and a search warrant is executed but the person who is the target of the investigation is not home, or when law enforcement enters the place where they believe child pornography may be housed, the computer is not on; they do not find any immediate evidence of child pornography. Let us say law enforcement finds a computer, however. They then have to go and analyze that computer. That could take from several weeks to several months to analyze, and at that point, if the computer or other evidence is analyzed and child pornography is found, then a complaint will be issued along with an arrest warrant. Then a person could be the target of the investigation and could be arrested on that warrant.
The third way is if an investigation is done and the evidence is taken to a grand jury, which is a group of people who are summoned to serve as jurors. However, instead of sitting on a jury like someone may see on TV where they decide whether someone is guilty or not guilty, these people on the grand jury decide whether to charge someone or not. They can issue what is called an indictment, which also leads to an arrest warrant. Then that person can be arrested and officially charged by indictment with possession or receipt of child pornography.
What possession means in a child pornography context is having either a hard copy, like a print of a picture on piece of paper, a photograph like a Polaroid, or some other physical manifestation, or possession of a digital image. This could be a file or a remnant of a file such as a thumbnail. Meaning that if an image on a digital device is deleted, what can remain sometimes is called a thumbnail, a smaller version of that image. That also can constitute an image of child pornography under the law.
There are two types of possession. Possession can be physical possession, where a person actually has an item on their person, in their hand or in their pocket. It can also mean what is called constructive possession, which means they have exhibited the knowledge, the intent to control, and the power to control an image.
For example, an image has been found on somebody’s computer. The way that the government or the prosecutor would seek to prove constructive possession of the image would be to try to prove the person had knowledge of that image. In other words, show that it was in a place where the person could not help but see it. For example, it was on their desktop and it was open, or the computer in which the image was found belongs to that particular person. They would look for evidence on the computer that shows that computer belongs to a particular person. For example, pictures of the target’s account or bank statements in that person’s name downloaded onto the computer, things like that.
It is difficult to be charged without having actually downloaded anything. In some state courts, particularly in Virginia, the prosecutors often put forth the theory that reproduction of child pornography occurs when someone puts it on to their screen. In other words, even the viewing of an image of child pornography means that it has been reproduced onto someone’s screen and they can therefore be liable criminally for that. That is typically not what happens in most courts, or particularly in federal court.
In federal court, typically the way someone is charged is if an actual digital image is found to have been downloaded onto a device, whether a phone, computer, iPad or other device of that nature.
Federal law has not criminalized an underage person sending a naked picture of themselves to another underage person. When you are talking about juveniles sending each other pictures, that is not criminalized in federal law.
If an adult, however, sends a picture of themselves to someone who is underage, which is typically the scenario you might see, then that would be in the context of an enticement charge. Now, if an adult is sending a picture of an underage person engaged in child pornography to either an adult or another underage child, then that could lead to further charges of trafficking of child pornography, or again an enticement. However, the common term sexting has not really made it into the federal criminal realm.
The first thing a parent should do is contact an attorney, because it is a very serious charge and can carry potentially five years of mandatory jail time for each image of child pornography.
A parent should also not speak with their child about the charges, because nothing that they say is protected by the attorney-client privilege. Someone is putting themselves in a position to potentially be a witness against their own child if they say anything incriminating. Therefore, a parent should not speak to them about the charge. You should contact an attorney immediately and get them involved in the case.
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