Possession of Sexually Explicit Materials

Computer evidence discovery

We use a forensic computer expert in nearly every case we handle to help us discover technological defenses to the charges. Where were the images stored on the computer?  Are the images thumbnails? Were the images hidden inside another computer file where those images were not accessed by the target?  Did more than one person use or have access to the computer? These are all important questions for us to consider when building a defense in a child pornography case.

Illegal searches and seizures  

One of the most important parts of a child pornography case in Maine is to challenge any possible illegal searches or seizures by the police or Computer Crimes Task Force agents. 

There are a number of evolving legal issues about how the Fourth Amendment of the U.S. Constitution applies to searches of digital information and computer systems.  How does the plain view exception to the search warrant requirement apply in digital searches? How does the judge who issues a search warrant ensure that the particularity requirement of the Fourth Amendment is met to avoid the search warrant becoming an unconstitutional general warrant?  

Whether it is the illegal stop and frisk of a citizen for a USB drive; the illegal stop of a car; the illegal search of an apartment or a house; the illegal search of a computer; or the misuse of bail conditions by police, our attorneys have filed countless motions to suppress evidence that the police obtained through searches or seizures.  

Illegal interrogations

In the overwhelming majority of sexually explicit materials cases that we have handled, the targeted person has spoken with the police during an interrogation.  Interrogations in these cases most often occur at the residence of the target. It is, of course, a terrible idea for the targeted person to answer any question from a police officer or computer crimes task force agent.  The targeted person should answer every question asked by a law enforcement officer with the same response: “I want an attorney.”

In the event that our client has spoken with law enforcement officers, we will investigate the circumstances of that interrogation to determine if a Judge might conclude that the interrogation was conducted in an illegal manner and/or if the client is particularly susceptible to having his will overborne by the police.  If there is a reasonable chance that the statements made by the client were not made voluntarily or that there was a violation of the client’s Miranda rights, we file a motion to suppress the client’s statements from evidence in the case.

Fair jury trials

The selection of unbiased jurors in trials of possession of sexually explicit materials cases can be particularly challenging.  Historically, many more jurors report difficulty with presuming innocent a person charged with a sexual offense, especially child pornography allegations, than with other types of offenses.  We routinely make written motions to the trial court in advance of jury selection to request that voir dire (the questioning of members of the jury pool) be led by the attorneys in the case rather than being led by the judge.  Social science research has shown that people are more likely to respond truthfully to questions posed by lawyers rather than questions posed by a judge. If the Court does not allow attorney-led panel voir dire, then we use written questionnaires that focus on the jury pool members’ understanding of the presumption of innocence and any possible biases that the jury pool members may hold especially in light of the sex offense allegation. 

Treatment

One of the most important actions that a defendant can take early on in a case of possession or dissemination of sexually explicit materials is to consider enrolling in therapy.  It is hardly surprising that if a defendant is succeeding in treatment that is not completed by the time the criminal case is finished, the prosecutor may be less likely to want to interrupt that treatment by sending the defendant to jail or prison.