Child Pornography Lawyers

Child Pornography Lawyers

We’re leading trial lawyers in Southwest Missouri, and we’re experienced in defending child pornography cases. We’ve won numerous not guilty verdicts, and we know what it takes to handle the toughest child pornography cases.

Child Pornography Lawyers Who Protect Your Rights

Every person facing child pornography charges has constitutional rights, and it is very important that you protect your rights. It is all too common for someone to waive their constitutional rights without fully understanding the long-term consequences. The problem of unknowingly waiving rights was so common and so devastating to those accused that law enforcement is now required to inform people of their rights using what is called the “Miranda Warning” and sometimes referred to as “Miranda Rights” (you can find a great discussion here). 

You Have the Right to Remain Silent

If you’re accused of a child pornography-related crime, you will have the right to remain silent. As part of this right, you’ll also be informed that statements can and will be used against you. It’s very important to understand that statements will be used against you and will not be used to help you. You should talk to a lawyer before you make any statements.

Law enforcement doesn’t need to read you your Miranda Warning if you’re not in custody. Even if the police are in your home asking you questions, you may not be in “custody” and entitled to your Miranda Warning. Factors used to determine whether you’re in “custody” include the degree of police coercion, the length of the interrogation, its location, its continuity, and the defendant’s maturity, education, physical condition, and mental condition.

You Have the Right to a Child Pornography Lawyer

You will have the right to hire a lawyer to defend you. We understand the intricacies of child pornography cases – we are able to help you understand and defend your rights. If you have been accused of a child pornography-related crime, it is important that you exercise your right to counsel. Child pornography cases can be complicated, and it’s important that you have the expertise to defend yourself.

Search and Seizure Rights in Child Pornography Cases

You have the constitutional right to be free from unreasonable search and seizure. Law governing search and seizure gives you the right to challenge the legitimacy of a search. Some child pornography cases arise from P2P File Sharing. Fourth amendment law relies heavily on the specific facts of a case; this makes it all the more important that you hire a lawyer who regularly handles child pornography cases. 

Some federal courts, including the Eighth Circuit (which hears federal child pornography cases in Springfield, Missouri), have ruled that the police are not required to have a warrant to search publicly accessible files from a private computer on a peer-to-peer site. See United States v. Stults, 575 F.3d 834 (8th Cir.2009); U.S. v. Hill, 750 F.3d 982, 986 (8th Cir. 2014). See our article P2P File Sharing Can Lead to Trouble.

Child Pornography State and Federal Laws

Child pornography is prohibited under both state and federal law, and whether a person is charged under state or federal law is to a certain extent discretionary. Child pornography lawyers know that certain conditions must be met for the federal government to have jurisdiction.

 The federal government gets jurisdiction over child pornography cases when any of the following is true: 1) the child pornography traveled across state or country lines (through the U.S. Mail); 2) if the internet is used to receive or distribute the child pornography (such as using a peer-to-peer program); or 3) if the materials, such as the computer used to download the image or an external hard drive used to store the image, traveled in interstate or foreign commerce. People are surprised to learn that even if the child pornography image itself did not travel across state lines, the federal government has jurisdiction if any part of the computer (or phone) that was used to send or receive child pornography was made or traveled outside of the state of Missouri.

Child Pornography-Related Crimes

Child pornography law is codified under both state and federal statutes. Whether you’re charged under state or federal law is dependent on the facts of your particular case. The federal government gains jurisdiction over child pornography-related crimes only in certain circumstances described above. The discussion here focuses on the federal definition of child pornography crimes and also the punishment ranges for charges under federal statute.

It is not uncommon for someone to be charged with other child pornography-related crimes in addition to possession of child pornography.

Possession of Child Pornography

Defined under federal statute 18 U.S.C. § 2256, federal law defines child pornography as any visual depiction of sexually explicit conduct involving a minor.

Visual depiction: Any image such as a photo, a drawing, or a video. Most people are surprised to learn that pornography depicting drawings of cartoon or anime children engaged in sexually explicit conduct is considered child pornography and is punishable the same as if actual children were depicted.

Sexually explicit conduct: Sexually explicit conduct does not require that an image depict a child engaging in sexual activity. We have dealt with cases where photos and videos of partially naked minors constituted child pornography because the images were sexually suggestive.

A minor: Under federal law, a minor is a person under 18. The age of consent for sexual activity is irrelevant. So even though a 17-year-old and a 20-year-old in Missouri can legally engage in sexual intercourse, it is a federal crime for the 20-year-old to possess a sexually explicit photo of that 17-year-old.

The punishment range for possession of child pornography is up to 10 years if you have no prior related offense and 10-20 years if you have prior related offenses. Although probation is permitted under the law for offenders with no prior sex offense, judges in the Western District of Missouri (which is the district in which Springfield, Missouri sits) very rarely give probation for possession of child pornography. This is why it is so important that if you have a medical condition or other extenuating circumstance that warrants a request for probation, you need to hire an attorney who will gather evidence of your extenuating circumstance and present that evidence to the court at sentencing.

Receipt and/or Distribution of Child Pornography

The receipt and/or distribution of child pornography is illegal under  (18 U.S.C. § 2252 (a)(2)). Individuals using peer-to-peer networks to share child pornography images are frequently charged under this statute. The punishment range under this statute is 5-20 years imprisonment for those who have no related prior offense, and 15-40 years imprisonment for those with prior related offenses. Because of the mandatory minimum term of imprisonment in all cases, those convicted under this statute are not eligible to be sentenced to probation. 

Coercion and Enticement of a Minor to Produce Child Pornography

Coercing or enticing a minor child to produce child pornography is a separate chargeable offense from possessing and distributing child pornography. Defined in  (18 U.S.C. § 2422(b)), a person may be charged with this crime when he or she persuades, induces, entices, or coerces a minor to engage in prostitution or to produce child pornography. For example, asking a minor to take a photo of the minor engaged in sexually explicit conduct and to text it to you constitutes enticement.

The punishment range for coercing and enticing a minor child to produce child pornography is 10 years to life imprisonment. Those convicted under this statute are not eligible to be sentenced to probation.

Sexual Exploitation by Producing Child Pornography

Sexual exploitation of a minor is another child pornography-related crime that makes illegal the production of child pornography (See (18 U.S.C. § 2251)). This statute covers the actual filming of a minor engaged in sexually explicit conduct and the persuading, inducing, enticing or coercing a minor to film themselves engaging in sexually explicit conduct. 

This crime (persuading a minor to make the child pornography) overlaps with coercion and enticement of a minor, but the penalties are different. Generally, the specific facts of the case determine if the prosecutor charges coercion/enticement or instead charges sexual exploitation.

The punishment range for sexual exploitation varies depending on prior related criminal history. If you have no prior related offenses, the punishment range is 15-30 years imprisonment; if you have a prior related offense, the term of imprisonment is increased to 25-30 years; and if you have multiple prior related offenses, the term of imprisonment is increased to 35 years to life.

Transfer of Obscene Material to Minor

The transfer of obscene material to a minor is made illegal under (18 U.S.C. § 1470). This statute does not explicitly define obscene, though charges arising under this statute usually arise from the transfer of material that very obviously contains sexually explicit content. The United States Department of Justice maintains a Citizen’s Guide to U.S. Federal Law on Obscenity which further describes the current state of obscenity under federal law.

Forensic Evidence in Child Pornography Cases

Child pornography lawyers must understand the challenges of dealing with forensic evidence in child pornography cases. While you are presumed innocent, and you are innocent until proven guilty, the prosecution has the burden of producing evidence to prove guilt beyond a reasonable doubt. In child pornography cases, digital forensic evidence is usually at the core of the prosecution’s case.

Discovery of Digital Forensic Evidence in Child Pornography Cases

The investigation is law enforcement’s tool to gather digital forensic evidence in child pornography cases. A core part of the investigation is the collection and forensic examination of digital devices. The search and seizure of electronic devices happens pursuant to a search warrant (which is obtained after some initial investigation gives law enforcement probable cause to escalate their search) or you give law enforcement consent to search. You always have the right to refuse a search.

Peer to peer (“P2P”) file sharing is one common way law enforcement will start their investigation. Law enforcement will search these networks for files containing images and videos they believe to be child pornography. Once they find child pornography, they will trace your IP address back to your Internet provider and serve a subpoena on the Internet provider to get your account information, at which point they will have linked you to what they believe to be evidence of a child pornography-related crime.

Once law enforcement has personally identified you, they can continue their investigation by obtaining a search warrant for your physical location and digital devices. In some cases, law enforcement will contact you before serving the search warrant. Remember to defend your right to remain silent – do not consent to a search and do not answer any questions. 

Evidence and Sentence Enhancement in Child Pornography Cases

Federal sentencing guidelines in child pornography cases provide for increased sentence ranges depending on the number of images and videos law enforcement believes it found. Sentencing guidelines provide that every video counts as 75 images, but getting an accurate count of child pornography images is complicated by how to correctly count multiple copies of the same image, thumbnails of an image or video, and copies of the same files stored in cache. 

The number of files found will determine whether or not to enhance your sentence, so getting an accurate count is critically important. Child pornography lawyers are experts at examining the forensic evidence and fighting for a correct application of the sentencing guidelines. 

A second complicating factor is that law enforcement may find legal pornographic content commingled with child pornography, and law enforcement will simply count all pornographic content, even the legal content, as child pornography for purposes of enhancing the punishment range. The technical forensic challenges facing defendants in child pornography cases are serious – and combining these technical challenges with the federal sentencing guidelines has led to increasing length of sentences for those convicted of child pornography-related crimes.

Being accused of a crime is a scary and potentially life-altering experience, and you will have many questions. We know the intricacies of criminal defense. We have handled over 350 federal cases and over 3,000 state and municipal cases. We know the judges and prosecutors because we work with them daily. We know what makes them tick. And we use that knowledge to achieve the best possible outcome for our clients. We are relentless and leave no stone unturned in investigating your case.

We’ve spent decades fighting tooth and nail for our clients. We’ve built our reputation by being relentless, responsive, and strategic.

Child Pornography Case Law

As leading child pornography lawyers in Springfield, Cantin Mynarich regularly posts important updates in child pornography case law. If you or a loved one is facing child pornography charges, contact the child pornography lawyers at Cantin Mynarich.