The U.S. Court of Appeals (5th Circuit) reversed a federal child pornography conviction on the basis that the government failed to prove that the defendant was in “knowing possession” of the 112 images of alleged child pornography that were discovered on two computers located in the home that he shared with his wife and terminally-ill father.
A basic understanding of how the internet and individual computers interrelate is necessary in order for prosecutors and the courts to properly analyze evidence used to criminally prosecute a person for possession of child pornography. For example, when a computer file is deleted, either manually or by the computer, the file is not completely removed from the hard drive. The deleted file is moved to a location on the hard drive known as the “unallocated space.” The file will remain there until it is overwritten to make room for new deleted files. The unallocated space is not accessible by the typical user but can be accessed by a knowledgeable computer forensics expert using special forensics software such as EnCase. Even with this software, the expert may not be able to retrieve the properties for the file which would reveal the date the file was placed on the computer, when it was last accessed and where on the computer it was stored before it was deleted.
In this case, the prosecution’s expert was able to retrieve the 112 images of alleged child pornography that had been deleted, but was unable to determine when these images were first placed on the computer or when they were deleted. The defendant was not the only person to use the computers in the months before the images were found. In fact, the defendant’s wife and father regularly used the computer and would often do so under his user name.
Based on this, the defendant argued that the government did not prove beyond a reasonable doubt that it was him rather than someone else who had possession of the images. The Court of Appeals agreed. The government alternatively argued that the defendant had “constructive possession” of the images, which meant that he had dominion or control over the images themselves or dominion and control over the computers where the images were found. Dominion and control can be inferred when a person has exclusive possession of the place where contraband is found, but cannot be inferred when the property in question is jointly possessed by others. Since the images were found on a computer that had multiple users, the Court of Appeals concluded that the evidence was insufficient to establish that the defendant knowingly possessed the pornography or that he had dominion and control over it.
This case is a perfect example of why a criminal defense attorney defending a child pornography case must always retain a computer forensics expert to conduct an independent examination of the evidence. As Georgia criminal defense lawyers who regularly defend child pornography charges in State and Federal court, we are fortunate to be able to work with the top computer forensics experts in the State. Over the years, we have been able to achieve outstanding results in these cases by proving to the prosecution or to the court that the computer evidence establishes our client’s innocence. Without an independent expert, this would be impossible.
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