Lately, I've been researching varies scenarios in CP cases and different approaches to take in them. When reading through some revisions, I was surprised by some of the clauses regarding distribution of CP. For example, in KRS 531.340 it states
" (2) Any person who has in his or her possession more than one (1) unit of material coming within the provision of KRS 531.300(2) shall be rebuttably presumed to have such material in his or her possession with the intent to distribute it."
Unit of material, as defined in KRS 531.300(2)
"(2) "Matter" means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, live image transmitted over the Internet or other electronic network, or other pictorial representation or any statue or other figure, or any recording transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines, or materials;"
Legally speaking, what's the difference between "the intent to distribute" and actually distributing? And how could a forensic investigator go about proving that an individual had no intent on distributing such material?
I haven't researched these laws in many other states in the US, but is this a pretty common clause to have regarding this kind of material?
Sources
No, it's not common, usual amount is higher to allow for things like a pop-up or redirect, inadvertent click, etc. There have been lots of cases where someone was looking for one thing and got another.
Most stuff is charged Federally because you can get mandatory minimum and flip others.
Legally speaking, what's the difference between "the intent to distribute" and actually distributing? And how could a forensic investigator go about proving that an individual had no intent on distributing such material?
One is actually doing it and the other is just thinking or planning on it. In the Narcotics world it seems to be an easy sell based upon the paraphernalia associated with the drugs and how it may or may not be packaged. I've never heard of CP packaged for distribution. It may not be the norm, but I'm sure there are those out there that only download, but do not share at any time. IMO I think they "may" feel a greater possibility of making the LE "hit list" if they are found to be distributing? I am not a forensic examiner, but I would think that if one could show that an image of "matter" was accidently downloaded from a pop up or redirect that evidence could be used to support that the individual did not have the intent to distribute? I believe the volume of "matter" or the lack of it will speak volumes.
IMHO
Intent to distribute could be that the images were in his Shared folder in a P2P software that he was using, or in the public folder on a server he was periodically bringing online to let others down/upload from/to.
He would catch a Distribution charge if (for example) he sends CP to a undercover and when his system is seized the same photo(s) is/are found and the hashes match.
I'm not a lawyer - and did not sleep in a Holiday Inn last night )
-=Art=-
Well, when it comes to drugs - since it's something that you distribute by splitting larger "chunks" into smaller ones and the "dose" is generally valued by it's weight, finding the suspect with a precision weightscale and a number of very small plastic bags makes a lot of sense for presuming "distribution intents".
But CP, AFAIK is something that you cannot divide in smaller chunks than a single image.
To this regard, there is IMHO an unfair comparison between a "book, magazine, newspaper" and a single image.
So you get an illegal book, with say 25 CP images, and you decide to distribute them by cutting each page off and sell it separately.
Is a letter opener found un the same drawer where the book was a sign of your "intent to distribute"?
Or you have a CP powerpoint file (w00t) and on the same PC a software capable of extracting the single slides……
? idea
@hcso1510
@4n6art
For the record
I am a step ahead of both you guys wink
I am not a lawyer and I did not ever stay in a Holiday Inn. I am simply a person pretending to be an actor who once played the role of a space lawyer lost in space.
jaclaz
@4n6art I'm The Dude Playing the Dude Disguised as Another Dude D
I understand your reasoning in thinking that if something was in the shared file there was an intent, but since most P2P programs default to placing downloaded materials in the shared folder you could still catch someone with the material in the shared folder without them ever having an "intent" to distrubute? Most people don't read the small print and I have personally seen a defense attorney make this argument.
If you want to know what eveil lurks in the hearts of men, you better call in The Shadow. For everything else you just might need that room at the Holiday Inn Express. 8)
@HCSO Duuuude! 8) 8)
I guess I should have been a little more specific (my bad). I agree with you if the shared location is the same as the location where the download files are put. However, if another specific (non-default download) location is shared, I would call it intent. It is a hard call to make - it definitely depends on the circumstances of where the file was found, what the purpose of that folder was etc.
Never a cut-n-dry method…. we keep plunking away….
No, it's not common, usual amount is higher to allow for things like a pop-up or redirect, inadvertent click, etc. There have been lots of cases where someone was looking for one thing and got another.
Most stuff is charged Federally because you can get mandatory minimum and flip others.
Okay since pretty much all CP cases are charged federally, individual state laws probably won't matter too much, correct? And from what I gather, the intent to distribute is a bit more ambiguous and open to the interpretation of the examiner?
Thanks for the replies here, this is helping to shed a little more light on this subject for me.
The defense has to argue location, time, knowledge of user, etc. Also knowing the default settings of EACH p2p program helps who user intent with regards to moving things from default or not (associated with other things)
No, it's not common, usual amount is higher to allow for things like a pop-up or redirect, inadvertent click, etc. There have been lots of cases where someone was looking for one thing and got another.
Most stuff is charged Federally because you can get mandatory minimum and flip others.
Okay since pretty much all CP cases are charged federally, individual state laws probably won't matter too much, correct? And from what I gather, the intent to distribute is a bit more ambiguous and open to the interpretation of the examiner?
Thanks for the replies here, this is helping to shed a little more light on this subject for me.
I always thought the defense has to argue little to nothing.
Defense simply has to dismantle the prosecution.