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I apologise for those who have seen this and discussed it already. It takes a while for it to reach down under!!
It will be interesting to hear the groups views on whether this is going to;
a open the floodgates for the defence
b lead to some reviews of existing convictions
Do we think this is something peculiar to local jurisdiction or will it have ramifications outside of Pennsylvania? I am not sure this would work somewhere like the UK or even here in Oz, and to my knowledge when tried has not been successful.
thoughts?
Hi,
That's quite an interesting case. I am assuming the US courts must have some sort of making offence like we do in the UK. If that is the case the more correct offence with which to charge should have been making images on the computer as a result of viewing them on the Internet. We have a similar issue in charging possesion which is that we must show an intent to posses as well as a knowledge they were in possesion.
What was also interesting is how 370 images got the man a 9 month sentence. In the UK he would probably have not gone to prison at all for that quantity.
Steve
The newest ruling in the Fed courts here is that a defense examiner may not have a copy of the images of the hard drive to look at in his own office, and must do so in a government facility with Federal agents in the room at the time of examination. This applies to hard drives with court defined contraband on them.
While doing the exam, you may not take any information outside of the room with you in order to consult with counsel who hired you, and you also may not work past the normal hours of the facility.
This of course is being appealed on so many fronts. The government wants to go into we can waste money mode and outfit places where it is possible an exam could occur (courthouse, AUSA office, etc.) with a computer FTK, Encase, as well as a few other programs so that the examiner can carry out his exam. Of course the arresting body can come and go as they please, have access to any software they would like, any message board or forum, books or articles that cannot be reprinted, etc.
Hi All,
As steve862 mentioned, any of the "jail-able" offences in the UK that I have read about have usually been for the possession of thousands of images, but of which a small number may be of the most serious grading. In this respect I think the law is half-right/half-wrong here - the person may of course have no involvement in the abuse that took place but there may be a query over their intention to obtain images of a certain "level". Sentencing should also take into account the likelihood that the defendent is likely to act in any predatory way. Certainly, no extra effort may have to be expended to download images of different gradings - if someone used a site-archive tool they would pick up everything anyway.
On a more wider issue, computers are not dumb terminals, but is it reasonable to accept that the user will want a copy of a site's assets saved to their computer if they haven't actually "made" the copy (by the use of menus and dialogue boxes, etc.) or is the very act of requesting the images to be displayed enough IE evidence of a network transfer being initiated?
Neil
As steve682 has said, in the England & Wales (Scottish law is different) the state prosecutors would have probably charged this guy with 'making' indecent images rather than possession. To possess something in English law you must realise you have possession of the item in question.
Using the same principle of 'making' rather than possession it is my understanding that this is how prosecutions can be brought against suspects with images found in thumbs.db files or within unallocated areas of a disk.
In the US we have mandatory minimums and the AUSA doesn't have to show anything but that 1 picture was on the computer. The sentencing is taken out of the judges hands and if someone wants to bring charges for 1 image on a computer then they can, and more importantly they have.