Simply stated, sexual exploitation of a minor – commonly referred to as child pornography – is one of the most substantial felonies one can commit in Arizona. As set forth in ARS 13-3553, mere possession of any visual depiction of a minor engaged in any exploitive exhibition or other sexual conduct is a class two felony. And, if the image depicts a minor under 15, it is a dangerous crime against children for which someone would be facing a mandatory prison term between 10 to 24 years in prison for each depiction. And, any sentencing requires the charges to be sentenced consecutive to each other.
In many states, mere possession of child pornography is a misdemeanor. In those states that consider possession a felony, the average sentence is a 3-year prison term. As noted above, Arizona’s mandatory prison terms are extremely harsh.
These cases tend to appear in the criminal justice system through two different mechanisms. In the first, the computer is turned over to law enforcement agencies from a third party. In most cases, that third party is either a computer repair technician or your client’s significant other. More commonly, these cases are brought into the criminal justice system from a police investigation. Law enforcement officers find the images over a shared networking site. They then acquire and execute search warrants to determine the owner of the IP address. And, in doing so, normally find their target for prosecution.
Scope of Discovery Request
Regardless of how the case enters the court system, your discovery request must extend to matters beyond the normal request for reports, notes and search warrants. In addition, you should be seeking several items, including but not limited to:
- A full forensic investigative report minus contraband files and links. By obtaining this information, you acquire the metadata on bookmarked files. This allows you to determine the investigator’s focus when searching the computer.
- Subject’s hard drive file list database. This is created when the suspect hard drive is forensically examined. The file list database lists every file, fragment and deleted file the forensic software discovered. This list will show all locations, dates, times, size and file hash values.
- Windows Registry. From a Windows drive, this registry permits the expert to run registry reports with their own forensic software that can detail MRU files (most recently used), history lists, computer user lists, security settings and whether the user needed a password.
- If this is a file sharing case (Peer to Peer, aka P2P), you really need to obtain the sharing program’s configuration files. These files contain no contraband, but provide insight on whether at the time of installation or later, the default settings were applied or whether the system administrator modified the default settings. It may also show the user attempted to prevent sharing of files on his system. Discovery of this information may create a defense or promote substantial mitigation.
All of the above information contains no contraband and can be viewed outside the confines of the police or prosecutor’s office. The noted information can help in determining if the drive was altered after its seizure and potentially find any malware, virus, worm or remote access terminal files. And, especially where the evidence is discovered by a third party, you may be able to definitely prove that the image was downloaded by another person or at a time your client did not have access to the computer.
Finally, you must always seek to view the evidence. There are no guarantees, but I have found that charges have been duplicated (same image, two different file names) and found in some cases you really cannot determine the age of the “minor.” Also by viewing charged images, you can make your own determination if the image is accurately described by law enforcement and in the indictment.
Prosecutors and courts believe mere possession of child pornography only happens when the person is predisposed to commit sex crimes against children. The majority of clients I have represented suffer from addiction issues or obsessive- compulsive behavior. They are not predators. My clients, if they understood the seriousness of their conduct relative to the criminal justice punishment, would never engage in this conduct. In many cases, my clients have an addiction to pornography, not child pornography. But making those arguments to prosecutors and courts is an uphill battle.
When being retained in a case involving sexual exploitation of a minor, challenging the underlying evidence is step one in your defense. Viewing the evidence is step two. Developing your mitigating evidence is step three. Obtain the risk assessment. Use forensics to prove the majority of pornography on the computer contained only a small percentage of child pornography. Finally, use the forensic review to demonstrate how infrequently your client accessed or searched for child pornography.
