Are Child Pornography Charges Prosecuted Vigorously in Virginia?
The Role of the Prosecution
There is very little room for negotiation in a case in which there is evidence sufficient to establish a conviction. The prosecution may work with the amount of charges, which is very important, but it is pretty rare for them to agree not to charge people if they have evidence to do so or to charge on something lesser including a misdemeanor offense. So, they do prosecute these cases very seriously.
Evidence the Prosecution Uses to Prove its Case
The prosecution will use evidence derived from the forensic analysis done on the person’s computers and phones. They will use the internet search history to show that an accused was searching for a specific type of image or video. Obviously, the actual images and videos that are obtained through this is also direct evidence of the crime. In addition, they will use the clients’ statements that they have made to law enforcement or other witnesses as evidence.
Ways to Refute this Evidence
Determining how to refute evidence will depend on the type of evidence that is presented. When it comes to a defendant’s statement, there could have been a violation of constitutional rights of the accused at the time that the statement was taken. A motion to suppress will be filed to try to exclude that statement from trial. That could be really important if that is direct evidence showing that the accused knew the nature and character of the images at issue. Other ways that a lawyer could fight the case is to attack the forensic analysis part of the prosecution’s case.
A defense forensic expert can be retained to review the evidence and give an alternative explanation as to why the government’s argument that the images were possessed by the accused is not accurate. A lawyer will need a specific example, but one way could be that if there was a large amount of images downloaded at the same time, then the date and time stamp are going to be identical for every image.
This would be one way that an expert could say that there is evidence that the image was downloaded, but not evidence that the person viewed it. Therefore, there is no proof that the person knew the content of the image and where the images are placed in the computer.
Constitutional Issues that May Arise in Possession of Child Pornography
The Fourth Amendment is the most important constitutional right that would be an issue in a child pornography case. This is your right against unreasonable searches and seizure. If there is a search warrant, which there usually is, looking at the content of the search warrant and whether it meets the criteria to establish sufficient probable cause is critical.
Really getting into the nuts and bolts of what the police are alleging is the probable cause for the search and seizure and the the scope of the search warrant compared to the scope of the search that was actually conducted are also important areas to review. There could be an important legal defense there.
Another constitutional issue is related to the statements that were made to police. Were they properly advised of their right to counsel and the right to remain silent at the time the interrogation was conducted? If they were not, then that certainly would be an avenue of defense to get the admission or the statement excluded from trial.