Child Pornography Lawyer in Naples, Florida
Defending Child Pornography Charges in Collier County, Florida
We should all know by now that many of the websites we find on the internet are not what they purport to be. Internet provocateurs and saboteurs link our web browsers to many various pages with no assurances that the content we are viewing is safe. Consequently, our personal computers, smartphones, and tablets could download files that could ruin our devices by exposing them to viruses, bots, and junk. Unfortunately, the hackers move faster than those who create security programs. Therefore, we could unknowingly and unwittingly download files that we had no idea existed or expose our devices to anonymous hackers who could alter our files even when we have the most up-to-date security software protecting our data.
Sending your device to a shop to fix a virus, malware, or other electronic infestation is an inconvenience. However, what would happen when the tech in the computer repair shop opens files on your computer to find images of children, young boys and girls, posed in sexual positions, or worse, engaged in sexual activities? How would you explain what happened? What if the tech informs the police of the contents of your hard drive, but they allow you to take it home to bait you into unwittingly exchanging those files even though you believed the files contained other data? Where would you turn in a situation like that if you lived in Naples, Florida?
Faceless cowards who hide behind a computer screen and who also possess superior computer skills, can ruin a person’s life easily. Stealing a person’s identity, stealing money from bank accounts, or infiltrating your personal life is bad enough, but sabotaging a person’s computer with images or videos is another thing entirely. Sadly, many people open up files on their computers that expose them to significant legal and personal problems.
People face made up or trumped-up charges all of the time, and it is a black-eye on our justice system. Our judicial system is designed to ensure that all innocent people go free and only the guilty sustain convictions and receive punishments. It has been said that it is better for ten guilty people to go free than one innocent person suffers a wrongful conviction. The system does not guarantee that an innocent person will not be placed in jeopardy of losing their liberty and face criminal charges. Instead, police and prosecutors allow juries to decide cases even based on shoddy evidence, while knowing their star witnesses have a motive to lie or is of a bad character.
Why You Need a Private Attorney to Represent You
State’s attorneys and law enforcement officers push extremely hard for convictions in cases of possession of child pornography in Naples, Florida. In many instances, the prosecution team is so myopically focused on winning a conviction and sending the defendant away for dozens of years that they are willing to ignore evidence that tends to show the defendant is not guilty or even factually innocent.
There is too much at stake to simply “roll the dice” and see what happens. Sometimes jurors get it wrong and release guilty people. Conversely, sometimes juries convict innocent people. Given that frightening reality, a person from Naples, Florida who is facing criminal charges relating to the possession, transmission, or producing child pornography must hire the very best child pornography lawyers in the state to fight tooth and nail on his or her behalf.
A person facing allegations of having anything to do with child pornography will be seen as a pariah in the community. Everyone hates so-called “sex crimes,” especially when the alleged victim is a child. Photos depicting children in a state of nudity or while performing a sex act force people to react viscerally and harshly. Those images also spark a vengeful fire in people who want to seek retribution against the accused and desire to see that person suffer.
What would happen, however, if they were wrongfully charged with possessing, transmitting, or producing child pornography? Would that person sit so harshly in judgment, or would they beg for mercy from a jury of his or her peers and ask them to keep an open mind while listening to the case and hold the prosecution to sustaining their burden of proof.
Finding a Lawyer to Defend You Against Child Pornography Charges in Naples
Any current member of the Florida Bar who is in good standing can legally represent a person charged with child pornography charges. Notwithstanding, approaching any lawyer to represent you is dangerous. The lawyer, while excited to help, might be out of his or her depth and not understand the nuances of the Florida criminal justice system, the severity of the charges, and the potential draconian prison sentences the accused faces.
Therefore, a person who learns that he or she is under investigation for possessing, transmitting, producing child pornography, or any related crime must hire a Naples defense lawyer who is not only experienced defending complex Florida criminal cases, but is capable of providing an aggressive and vigorous defense as well. Your liberty hinges on the effectiveness of the attorney you choose to represent you.
The Accused Has Rights in Naples Child Pornography Cases
A basic tenet of our constitutionally-based freedom is the presumption of innocence. Every person charged with a crime in Florida is presumed to be innocent of those charges. The presumption holds true even if the person charged admitted to the crime, was caught red-handed, or the government constructed an overwhelming case. The presumption of innocence protects the accused unless or until a jury finds the defendant guilty beyond a reasonable doubt, or the defendant changes his or her plea nolo contendere or guilty. None of the constitutionally-protected rights enjoyed by the accused or a person under suspicion of committing a crime are affected by the nature of the charges under investigation, even if certain people think sexually-motivated offenses, especially those involving children, should be treated differently than others accused of committing crimes not involving children.
Right to a Presumption of Innocence
An individual accused of child pornography charges has other rights in addition to the presumption of innocence. The police cannot use unlawful means to investigate the charges against you. Every person in the U.S. has a right to be free from unlawful searches affected by law enforcement officers. In the context of a child pornography investigation, an individual is well within his or her rights to deny the police access to his or her home, car, or personal possessions like mobile devices, tablets, computers, hard drives, and other devices capable of storing photos, images, and videos electronically unless the police possess a search warrant. Similarly, the person under investigation for possessing child pornography needs not to volunteer to allow the police to take a sample of bodily fluids, hair, or skin cells for DNA analysis or comparison unless the police have a search warrant.
Your Right to Remain Silent
Every person has the right to decline a conversation with the police, with the exception of circumstances that typically do not apply in child pornography defense cases. A police officer can compel your cooperation when executing a search warrant, but not even a search warrant can make you talk to police investigators. Therefore, if you suspect that police are investigating you for charges related to child pornography in Naples — or any other criminal offense — you could, and should, refuse to speak to the police and ask for a lawyer.
Remember that everything you tell the police has the potential to come back to haunt you. All statements made to the police, irrespective if made during a formal interrogation or not, could be admitted in your trial as evidence you committed the crimes alleged.
Right to Legal Representation
An important right someone under investigation of, or facing accusations of, charges relating to child pornography in Naples is the right to representation by a competent, skilled, and battle-tested Naples child pornography defense attorney. An effective child pornography defense attorney must possess the technical skills of a trial attorney in addition to having the ability and ambition to learn about all of the technical evidentiary aspects of a child pornography case.
Child pornography cases involve highly technical evidentiary problems and a lawyer who cannot grasp the technological aspects of how an image is transmitted via the internet, how a search engine works, how data is electronically stored, or how images can remain on a computer despite the user deleting the image might not provide an effective defense guaranteed by the U.S. Constitution and the Constitution of the State of Florida. Rarely do people charged with child pornography offenses possess physical photographs, videotapes, or DVDs anymore. Consequently, a conscientious child pornography defense attorney will retain an expert to assist in the defense so that the lawyer could thoroughly learn the technical aspects of the evidence.
Defenses in Child Pornography Cases in Naples, Florida
An accomplished child pornography defense attorney in Collier County, Florida will closely inspect all aspects of the case against the accused to find avenues of weakness that could be exploited. Too much could go wrong if the attorney focuses only on one aspect of the case. Notwithstanding, a defense attorney with experience will know what aspect of the defense is most important and center the defense around that point. This is most effectively done when counsel becomes involved early in the investigation.
Many people wait and see if the police charge them with a crime before asking for legal help. The approach is fraught with danger. A person who gets information that law enforcement has him or her under investigation should contact a child porn defense attorney right away. Enlisting the legal representation from an experienced child pornography defense attorney immediately upon learning about potential charges can build a case to rebut the government’s evidence instead of reacting to the evidence compiled by investigators.
The government’s case can be attacked by the defense on both procedural and substantive grounds. Since each case is different, there is no blueprint or template to defeat child pornography charges.
That is why the accused’s attorney must explore every possible defense strategy.
Filing a Motion to Suppress
Almost every prosecution of child pornography charges involves the seizure of contraband. The defense could vigorously challenge the propriety of the investigator’s actions when taking the evidence. The defense could argue that the search warrant was invalid because there was insufficient evidence to give the police probable cause to violate the sanctity of a person’s home and possessions. A successful “motion to suppress” will render the seized evidence inadmissible at trial against the accused. In that instance, the government might not have enough evidence to proceed to trial and must dismiss the case.
Additionally, the propriety of the actions of police investigators could be challenged if the police spoke with the accused. When a person is under arrest, the police cannot interrogate the person without first reading the arrestee the warnings required by the Miranda decision. If the police did not correctly advise the person of the Miranda warnings, the police did not give them timely, or the police coerced a confession, then the judge has grounds to suppress the accused’s statement from the trial of the case. Winning a motion to suppress statements is a huge victory for the defense, but the government might have evidence remaining to go to trial.
Trial strategies that expose the weaknesses in the government’s case can help preserve the presumption of innocence and win an acquittal. One defense to charges of child pornography lies in the proof that the individuals depicted were adults, even if the people depicted in the media were young-looking. The government has the burden to prove every element of the crimes charged, and in a case involving child pornography, one of the necessary elements of proof is that there was a minor, or a person under eighteen, depicted in the image. The defense can present evidence to show that the person was over eighteen at the time when the image was made.
Lack of Knowledge Defenses
Lack of knowledge is a viable defense to Florida child pornography charges. The government has to prove that the defendant had a guilty mind and intended to possess the images depicting child pornography. Thus, opening a computer file and immediately deleting the media because it contained imagery of child porn might not be enough evidence to prove the accused guilty. Possession of child pornography must be more concrete than mere fleeting or transitory control over the imagery. Some courts require the defendant to report finding the images to the police immediately to preserve this defense. You must consult an attorney immediately if you find yourself in this situation.
The “Unknowingly Transmitted Pornographic Images” Defense Strategy
Similarly, the defense could mount a successful defense if the accused’s computer received a virus or was hacked and the person unknowingly transmitted pornographic images depicting children. A thorough and honest investigation by law enforcement officers should uncover those facts before the prosecutor brings charges. If not, the defense could argue that a virus planted the images on the device and the police investigation was so shoddy that it was unfair to the accused. However, contacting an attorney as soon as possible once the evidence is discovered will help you win justice.
Federal Child Pornography Crimes
The FBI and other federal law enforcement agencies have the authority to investigate possession, dissemination, and production of child pornography. Sections 2266(1) and (8) of the United States Code criminalize possession of imagery depicting a child under eighteen involved in a sexually explicit activity or is suggestive of sexual activity. Child pornography under federal law includes photographs, video images, still images, downloaded images, negatives, and all other electronically stored information that meets the definition of child pornography under federal law. Theoretically, federal authorities can prosecute a person in possession of only one photo, although that rarely happens. Federal authorities target people disseminating or producing child pornography and reserve less serious offenses for the state to prosecute.
The penalties for violating federal child pornography laws are exceedingly harsh. Minimum sentences start at fifteen years for some offenses and could carry as much as 30 years depending upon the nature of the violation.
Federal law enforcement bureaus obtain jurisdiction to prosecute child pornography offenses when the images are transmitted in the stream of commerce. Therefore, “the feds” could prosecute these offenses anytime someone transmits the images electronically or through the U.S. mail, including private businesses such as FedEx and UPS.
Florida Child Pornography Laws
Florida also has harsh laws dedicated to punishing possessors, distributors, and producers of child pornography. A person charged with producing child pornography faces a felony in the first-degree and could receive an incarcerated sentence up to 30 years in prison. Distribution of child pornography in Florida carries up to a fifteen-year sentence as a second-degree felony. Furthermore, possession of a pornographic image depicting a child or transmitting an image is a third-degree felony, punishable up to five years in prison. Upon a conviction, however, the judge can rule that the person must suffer punishment for each individual image. Therefore, a person in possession of multiple images faces up to five years incarceration for each image, with one sentence to run from and after the other sentence.
There are collateral consequences to being convicted of possession of child pornography. The court must place the convicted person on sex offender probation. Additionally, the convicted person might have to register as a sex offender upon release from incarceration.
Sexting - Distribution of Child Pornography in Florida
Florida law does distinguish sexting from the distribution of child pornography. Sexting occurs when a minor, i.e. a person under eighteen, send an image of another person under eighteen in the nude via electronic means. Florida statutes §847.0141 allow a complete defense to the charge if the child received the image unintentionally and reported it to an authority figure. That section decriminalizes the first offense of a minor who committed the offense of sexting.