Common Child Pornography Defenses – California Penal Code 311

Lack of “Possession”

In order for the prosecution to gain a conviction for child pornography, they must prove beyond a reasonable doubt that the accused actually possessed the material. California state law defines possession as exercising dominion and control over one’s property. The state must prove a sufficient connection between the defendant and the contraband to support the accusation that the defendant indeed had possession.

One of the most common defenses that an expert child pornography attorney can use is to attempt to show that their client never actually was in possession of the offensive material. In cases where prosecutors intend to introduce evidence based on internet activities or based on evidence seized from your computer, your child pornography attorney may successfully defeat the possession element by showing that you:

1) Any possible illegal images were deleted from your computer’s web browser, history, and/or cookies assuming that you only viewed the images online (as opposed to downloading child porn pictures and/or videos).

2) Any possible illegal images were deleted from your web browser, history, and/or cookies and you can argue that you lacked specific knowledge as to how to locate the images on your computer.

NOTE: To successfully argue a lack of knowledge as to any possible illegal images you must not have printed out and retained any illegal images from your computer or emailed or saved on other media devices and such material. IF you can show that the illegal images had either been deleted from your history and/or emptied out of your computer’s recycle bin this can be a valid defense so long as you do not possess any forensic software capable of retrieving deleted files.

Examples of when the court has found “possession” to have occurred in child porn cases

1) The defendant successfully deleted porn images and websites from his web browser and history, but had not deleted child porn images and videos downloaded to his computer (i.e. did not delete the videos and subsequently take further action to “empty” his computer’s recycle bin).

2) Defendant deleted porn images and websites from his web browser and history AND successfully deleted child porn images and videos from his computer by emptying the content of his recycle bin, BUT possessed forensic software capable of retrieving such images and videos.

Examples of when the court has NOT found “possession” to have occurred

1) Defendant viewed child porn images at an internet café and didn’t realize that they were automatically stored in a temporary cache on the computer’s hard drive. Defendant could not access the hard drive on which the images had been stored nor was there any evidence that he had either emailed or printed out copies of the images.

2) Defendant’s computer contained child porn images and videos only found in the computer’s “unallocated space” (i.e. space that could be used to overwrite files and create new files).

3) Defendant had deleted any unlawful images from his computer and had no forensic software that would have permitted him to view the images in the future

In the above three examples the court reversed convictions for possession of child pornography