Does Your Lawyer have access to a good Child Pornography Computer Expert?
The answer to whether a computer expert can play a role in a child pornography case is “yes, many times but not always”. Let me tell you why and how.
Let’s face it, most criminal defense attorneys are not computer experts. Granted, a few of us know our way around the computer pretty well, but we haven’t spent our life studying the intricate details of what makes a computer tick.
The majority of federal and state prosecutions for child pornography almost always stem from downloads from a "bit torrent" program. Yes, there are many other ways that these cases can begin such as images being reported from various app administrators, back-door programs on commercial sites on the dark web, and even spouses reporting on their “other half” to authorities that they’ve seen images on computers and/or other electronics.
There must be Probable Cause from the Beginning of the Case
The 4th amendment plays a major role in how these CP cases are conducted. Typically, a detective will do a search for CP on a peer-to-peer program trying to "catch" any illegal material across the web. Individuals who use a bit torrent program typically allow others to retrieve materials off their hard drive. This is what the detectives and agents count on. When they see illegal contraband pulled from an IP address, they then know there is a strong possibility there is CP on that electronic device. Police enforcement will try to download multiple images or video from the same IP address to show there is probable cause for a warrant to retrieve the suspect’s address from their Internet provider. Ultimately, the state’s goal is to also issue a warrant to search the premises where that IP physical address is located. Consequently, Comcast, Verizon or a similar provider will receive a compelling subpoena to turn over the residence address of where the IP address is actually located. Remember, at this point in time all the police have is a download image/s or a video/s from a remote IP address. The IP address is looked up by the Internet provider and given to law enforcement. Law enforcement then typically make plans to "raid" the premises to search for CP.
The prosecution must show that the original download from the IP address demonstrated probable cause to request the warrant from the service provider for the actual physical address location. This is where an expert can come in handy.
The devil is in the details so to speak. Quite often police will get an IP address mixed up or the original download does not come through successfully. The prosecution must tie the download to the IP address and then the physical address in order for the police to come into your home or place of business with a subpoena. . This is the “connection of dots” law enforcement must make to show probable cause.
Remember, police and agents are scanning the Internet constantly looking for CP the programs. May electronic devices are on their radar screen as they work. They have many IP addresses they are trying to scope out at any given time. I have seen situations where police make "crossover" mistakes and get the IP address confused. This is where an expert needs to demonstrate that the prosecution cannot connect the dots. A good expert can make sure that the prosecution’s feet are held to the fire. If it can be shown that there was no probable cause to obtain the first warrant from the service provider, then there is a strong likelihood that any evidence retrieved at a physical location could potentially be suppressed via “fruit of the poisonous tree” theory.
Your lawyer should have sufficient knowledge about how to file a motion to suppress any child pornography case evidence
Of course, any suppression of evidence can only occur if in fact your lawyer files the precise specific necessary suppression motions timely. A little-known secret is that many prosecutors rely on their experts to teach and show them how to connect the dots in these CP cases.
Defense attorneys and prosecuting attorneys, as stated above, are usually not experts via computer and computer uses. Many times an expert can completely turn around a case before anyone actually walks into the courtroom. For example, if an expert can draft a favorable preliminary report and this is shared with the prosecution, it may put the prosecution in a position where they believed they could lose the case. Especially if the expert’s report contradicts any report from lab technicians or detectives.
In all child support cases the prosecution must provide a detailed description of the final results of the lab testing of any electronic devices. The important information is not always what is written in the report itself, its all about what is left out of the report sometimes. An expert can help in that situation.
Should I have my case Reviewed by my Lawyer’s Computer Expert?
The answer to this question is “yes” many times, but not always. If there is no reasonable chance that the outcome will be altered by an expensive expert reviewing the report or the actual computer, then it is probably not necessary. However, an experienced lawyer should guide you and make that decision because sometimes there are hidden features and issues that lay people just don’t understand. A defendant should be aware that an expert may be necessary and should always discuss this issue your lawyer.
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Any information provided is not advise. Every case is different, and it is important that your lawyer review the facts before rendering advice or a decision.