Child pornography charges are some of the most severe criminal offenses under federal law. A person facing federal child pornography charges must understand their legal rights and options and obtain the help of an experienced criminal defense lawyer to fight for the best possible outcome in their case. At Keith Oliver Criminal Law, we know every client has a unique case. Our firm devotes the time and effort necessary to guide you through the criminal justice system and pursue defense strategies to secure a favorable resolution to your charges.
Understanding Federal Child Pornography Charges
Under federal laws, producing child pornography or possession of child pornography can be met with harsh penalties. The federal child pornography statute, 18 U.S.C. §2252, makes it illegal to knowingly transport, distribute, sell, possess, or receive a visual depiction of a minor engaging in sexually explicit conduct through interstate or foreign commerce or in the special maritime/territorial jurisdiction of the U.S. or on any property owned by, leased to, or under the control of the federal government. The law also makes it illegal to knowingly access any materials containing any visual depiction of a minor engaging in sexually explicit conduct.
Sexually explicit conduct under federal child pornography laws may include any kind of sexual activity, exhibition of genitals or pubic areas, or sexually suggestive nudity.
The Federal Investigation Process
Federal law enforcement agencies investigate child pornography offenses either after receiving tips about websites or networks containing child pornography materials or about individuals who possess or distribute such materials. Investigators may download files from peer-to-peer sharing networks to identify distributed child pornography. Investigators will trace distributed materials back to the IP addresses, sharing those materials and obtaining the subscriber’s address from the internet service provider to identify suspects. Investigators might also set up fake websites or join forums or social networks to identify individuals seeking or sharing child pornography.
Legal Penalties and Consequences
A conviction on federal child pornography charges carries far more severe penalties than state child pornography statutes. A first conviction typically carries a penalty of five to 20 years’ imprisonment plus fines. In comparison, a second or subsequent conviction or a conviction after a prior conviction for sexual abuse or trafficking of children increases the penalty to 15 to 40 years in prison. However, certain child pornography offenses carry a term of up to ten years in prison or ten to 20 years for a conviction following a prior child pornography or child sexual abuse conviction.
According to the U.S. Sentencing Commission, 98.7 percent of people convicted of child pornography offenses received a prison sentence with an average prison term of 110 months. Trafficking convictions resulted in an average sentence of 145 months, while those convicted of receiving child pornography received an average sentence of 101 months, and those convicted of possessing child pornography received an average prison term of 78 months.
A child pornography conviction will also require a defendant to register as a sex offender following their release from prison. A listing on sex offender registries and a criminal record can have lifelong consequences, including challenges in obtaining employment, housing, or educational opportunities. Child pornography convictions can disqualify offenders from jobs that involve working with or access to children.
Defense Strategies in Federal Cases
A person charged in federal court with child pornography offenses may have various factual or legal defenses available. For example, the federal child pornography statute contains an affirmative defense to conviction if a person possessed less than three items of child pornography and, without retaining or allowing anyone other than law enforcement to access such items, either took reasonable steps to destroy such items or reported their existence to law enforcement. This affirmative defense allows people who inadvertently come across child pornography to avoid prosecution and conviction.
Other common defenses to child pornography charges include:
- Proving that the individuals in the visual depiction(s) are 18 or older
- Arguing that the visual depiction does not involve sexually explicit conduct
- Arguing that you did not intentionally or knowingly receive, access, or possess child pornography materials
- Proving that another person accessed child pornography materials through your IP address or that others maliciously accessed your computer systems to receive or distribute child pornography
Defense strategies may also involve arguing that law enforcement violated your rights during their investigation. Some violations include searching or seizing your property without a warrant, obtaining search warrants or communications data warrants without sufficient probable cause, or violating your Miranda rights during interrogations.
After a conviction, defendants may avoid harsher sentences by providing “substantial assistance” to law enforcement’s investigation into child pornography distribution networks. “Substantial assistance” typically includes providing information to investigators that leads to the identification, arrest, or conviction of another person engaged in child pornography offenses.
Navigating the Federal Court System
After a person gets arrested on federal child pornography charges, they will go before a magistrate judge in the federal district court for an arraignment/initial hearing. At that hearing, the magistrate judge will explain the charges against the defendant, confirm whether the defendant has or wants legal representation, and determine whether to detain the defendant until trial or release them on bond. The defendant will also enter an initial plea to their charges.
The prosecution must provide the defendant with copies of the evidence it intends to present at trial and any other exculpatory evidence found during the criminal investigation. The government may offer the defendant a plea deal under which the prosecution will recommend a lighter sentence in exchange for the defendant’s guilty plea. A defendant may plead guilty only if they committed the offense and admit to doing so in court.
Both sides may file pre-trial motions to admit or exclude evidence. The defense may also move to reduce or dismiss charges due to insufficient evidence to go to trial.
The Role of Expert Witnesses and Technology
With most child pornography cases involving the internet, an effective defense requires expert witnesses in computer technology. Computer forensic experts can determine whether law enforcement investigators properly searched computers or other electronic devices to locate evidence of child pornography. Forensic experts can provide compelling testimony opining as to the inadvertent downloading of child pornography or the prompt deletion of such materials.
Computer forensic experts can also help show that a defendant did not intentionally search for child pornography or that their computer did not distribute the materials identified by investigators. Experts may also find evidence showing that hackers accessed a defendant’s system to facilitate the distribution of child pornography without the defendant’s knowledge or consent.
Contact our New Jersey Criminal Defense Lawyer for Help
When facing charges for child pornography, you need experienced legal counsel to protect your rights, reputation, and future. Contact Keith Oliver Criminal Law today for a confidential consultation to learn how a New Jersey criminal defense attorney will fight to secure the best possible resolution to your federal child pornography charges.