Criminal Attorneys specializing in child pornography cases say convictions of the innocent are likely without the proper forensic computer expert. This is likely explained by: 1. The lack of knowledge by many criminal attorneys representing those charged with possession of child pornography; 2. The lack of funds available for qualified forensic computer experts; and 3. The inherent prejudice that exists against those charged with the heinous charge of possession of child pornography. The right criminal attorney and expert can mean the difference between an acquittal, and a wrongful conviction.
We live in a country where the vast majority of the population has access to a computer and the internet. Out of these millions of computer users, very few could tell you with a straight face that they are aware of every single file stored on their computer. Most, if not all, computer users would acknowledge that there is a strong possibility that frequent use of the internet makes their computer susceptible to obtaining an unwanted and unknown virus. Most would also agree that hackers may have accessed their computer remotely attempting to steal their personal information. Law enforcement agencies across the country are now routinely prosecuting computer crimes such as hacking, computer terrorism and identity theft, knowing that such illicit activity exists.
Why then is law enforcement so quick to accuse a citizen of knowing possession of child pornography simply because pornographic images of children appear on someone’s computer? If viruses are routinely and surreptitiously placed on computers from remote locations, isn’t it also possible that illegal child pornography could be placed on a computer without the knowledge of that computer’s owner? After all, to be convicted of possession of child pornography, the prosecution must show more than you simply possessed child pornography – they must show that you did so INTENTIONALLY and KNOWINGLY. This means the alleged offender had to know that the child pornography is on their computer, and they had to access it intentionally.
There have been numerous cases reported where persons are charged criminally for possession of child pornography, when it was later determined that the illegal pornography was placed on the computer remotely by virus. Unfortunately, many law enforcement agencies are not equipped with the computer forensic knowledge or technology to determine if child pornography was placed on the computer without the owner’s knowledge. There are computer experts available that can make such a determination, but they are fairly expensive, and there job can be impeded if law enforcement did not properly preserve all evidence.
Such an expert can testify regarding the presence of evidence showing the computer owner did not intentionally seek out child pornography, and that the images are the result of a remote computer virus. This evidence can save the day for someone wrongfully accused of possession of child pornography.
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