San Antonio Child Pornography Lawyer
If you’ve been accused of owning or distributing explicit images of children, you need a San Antonio child pornography lawyer who has years of experience defending Texas residents.
If you believe that you are being investigated for possession of child pornography you need to call a San Antonio criminal defense attorney that has defended individuals charged with similar crimes. Often the detectives will get a search warrant to search your phone, computers and home for images of child pornography. Even material that you believe has been deleted from your computer will likely be able to be recovered by a computer specialist trained in searching for prohibited items. Occasionally, a computer repair facilities technician will come across images believed to be child pornography while repairing a computer this often sets off a chain of events that includes a call to the police which results in an investigation.
It is possible to be charged in both a Texas State Court and Federal Court for the same conduct. It is even possible to have charges filed and pending in State and federal Court simultaneously. In most cases a defendant would be in a better position if his or her case was filed only in a Texas State Court and not in Federal Court. Child Pornography cases filed in State Court generally result in better outcomes for defendants than cases filed in Federal Court. Also, possession of child pornography cases filed in State Court are usually not investigated as fully as those filed in Federal Court. Pushing the prosecutors all the way to trial in a Texas State Court, such as a Bexar County District Court, will not normally result in a substantially harsher sentence compared to a plea bargain. While in Federal Court if a defendant maintains his innocence and is found guilty after a trial it is likely the sentence will be substantially worse than if a plea bargain had been entered. The Federal System may give a defendant a sentence reduction if the defendant “accepts responsibility”. It is therefore very important to fully investigate all facts, defenses and possible innocent explanations when facing a Federal Charge of Possession of Child Pornography. A decision will need to be made whether to go to trial or plea and, also whether to disclose to the prosecutor any facts that may or will create a reasonable doubt. Sometimes it is best to withhold facts from the prosecution that create a reasonable doubt and only share them with a jury of your peers.
Child Pornography Possession
The FBI is actively looking for individuals that may possess or distribute child pornography and they have very sophisticated methods to locate and identify suspects. Therefore, most cases involving allegations of child pornography were investigated by the FBI and are filed in Federal Court. Occasionally cases are filed in Texas State Court such as when the pornography was discovered by the local police or investigators or when the quantity of images is small, or it is believed the defendant acquired the image inadvertently. The Bexar County sheriff has deputies and the San Antonio Police department has Police officers looking for people that possess or distribute child pornography.
Under Texas State law (Texas Penal Code 43.26) it is a felony crime to possess or promote child pornography. For the purposes of child pornography, a child is a person younger than 18. Promotion of child pornography is more serious than mere possession. Promotion is generally the distribution, passing along, or circulation of the material. Promotion of child pornography can be presumed if a defendant has six or more identical visual depictions. There are a few limited defenses such as when the defendant and the depicted child are within two years of age of each other; when reasonable steps were taken to destroy the material within an appropriate period, or in limited circumstances if possessed by school administrators as part of their duties.
Federal law (18 U.S.C. section 2252(a)) prohibits knowingly transporting, shipping, or receiving any visual depiction of a minor engaged in sexually explicit conduct. Receipt and/or possession of child pornography (18 U.S.C. 2252(A), is generally less serious the distribution of child pornography.
Federal law, Title 18 United States Code, Section 2256(8) describes the offense of possession of child pornography where the image is of a prepubescent minor or a minor less than 12 years of age.
A growing phenomenon on the internet is peer to peer file sharing (also known as P2P, P-to-P, P2P communications, and peer to peer communication). The P2P file sharing is available to internet users through specific software. Some P2P software is suspect because various police agencies have seen it used frequently by people searching for prohibited items. One file sharing network that has been investigated is the “Gnutella Network” and another is “Morpheus”. Law enforcement will search the various networks matching keywords and log their results. Through this tedious task they identify internet protocol (IP) addresses that are likely to have images of child pornography.
Computers are therefore used to find, view and locate child pornography. It is not necessary that the image be stored or retained to violate the State and Federal Laws. Even if a file or image is “deleted” it is likely still on the computer. Even after deletion the image can probably be recovered either from the computer’s hard drive or its cache memory. Thus, the ability of an investigator to retrieve images from a computer is more dependent on a user’s operating system than on when an image was deleted. If a file was only momentarily possessed and was deleted upon finding its content a crime should not be asserted by any investigating agency.
Some of the things that the FBI or Detectives may consider is: how often the suspect accesses the images; did the defendant store the images in identified files; and what search terms were used to locate or access the child pornography. The investigator for the prosecution is likely to run a scan of a phone’s and computer’s hard drive and cache memory. They will be initially looking for “known child pornography”. Their initial scan may be for exact matches of images that have been routinely uncovered and identified as child pornography. Many images have been around long enough that the FBI or other state and federal investigative agencies have identified the child pictured and know the child’s name and exact age when the picture was taken. If some of the pictures appear to be of a minor, but it is not obvious that it is a minor, the prosecutor may employ an expert such as a pediatrician to opine as to the age of the person in the picture.
A San Antonio child pornography lawyer may hire a forensic computer expert when representing someone that has been charged with possession of child pornography. It is possible that the images were accessed or placed on the electronic device without the knowledge of the defendant. To evaluate that theory, it is important to determine whether someone else had access to the device when any of the images were accessed, searched, downloaded, or stored. Also, are the images arguably not of a child or not sexual in nature? A complete background of the defendant needs to be taken so that any mitigating factors can be brought to the attention of prosecutors and judge if necessary. If a computer, home, or phone were searched without a warrant it will be necessary to determine if a motion to suppress alleging an illegal or unconstitutional search may result in the case being thrown-out. Alternatively, if a warrant was obtained by the police or investigators the warrant should be examined for irregularities and challenged if it may result in some of the evidence being tossed out.
Experienced San Antonio Child Pornography Lawyer Fight for You
If someone is convicted of possession, promotion or distribution of child pornography it will be necessary to register as a sex offender for the rest of their life. Registration will affect where someone can live, shop, dine and socialize. Failure to register or missing a registration requirement is a new felony offense that can result in being sentenced to prison.
Give our San Antonio child pornography lawyer at Rush & Gransee, L.C. a call as soon as you believe you may be investigated for possession of child pornography. We offer free consultations.