As you know, there are some crimes which are perpetrated by having a particular content, like CP. So, if one has this type of files on his computer, he can be prosecuted.
How about when these files are found to have deleted months ago? The question is when you examin a computer, you examine both active and deleted files. So, if you come across some child porn images amogst deleted files, you are supposed to recover them and give them to the prosecutor as part of the examination. Then the owner is prosecuted as these files were obtained from his computer, however, he says that "yes I know that I had those content but I had deleted all of them as I found out that it is illegal to have these content".
He apparently deleted those files. It is true. The problem is here; you recover what he had deleted, and the recovered content is now being used against him as if he is possessing that content at present. It is like, when you are searching a suspect’s house for stolen money and you come across some particles of hashish in the garbage can in his garden, which may refer to his possession of hashish in the past. He says he had used hashish in the past but quit it and threw them into the garbage, thinking that he had done enough to get rid of those material. But now you recover the traces of past-possession of hashish and use it against him whereas he is not committing that crime any longer.
So, how fair do you think is it to blame someone for possessing something illegal in the past but not anymore? Does law forbid possession at present or does it forbid past- possession, too ?
Defendant, "I am sorry your honor I did not know it was illegal to possess narcotics, the officer arrested me while I was disposing of the drugs."
Not sure how the laws read in your country, but ignorance is not a defense in the US.
Well if a subject burglarizes a home but later feels guilty and throws the stolen items away he still committed a crime, even if he feels guilty and returns the stolen items.
But what about this scenario? A person prints counterfeit money but decides not to use it and throws it in the trash. Somehow this disposed trash is seen and turned over to the authorities. Was a crime committed?
Sorry, not trying to hijack your thread but throwing different scenarios out there.
But what about this scenario? A person prints counterfeit money but decides not to use it and throws it in the trash. Somehow this disposed trash is seen and turned over to the authorities. Was a crime committed?
Sorry, not trying to hijack your thread but throwing different scenarios out there.
If the laws related to copying or printing the money (reduced to 75% or enlarged 150%, color only on one side, etc.) are violated it is still a crime. It is just an additional crime if the bogus bills are used.
Whether they are deleted or not, the data that constitutes the contraband is present on the drive.
What you have to prove is how it got there. And if it is now deleted, how it was deleted.
"I just discovered that someone put a bag of cocaine in my backpack, and I was flushing the drugs down the toilet when you found me."
Possession in law requires knowledge and intent. If you receive something which you find to be contraband, and you immediately destroy that contraband, then as a general principle you don't fit the legal definition of possession.
When I worked for police, objects found which were deleted were never used as evidence against someone except if we could tie them to something showing an intent to possess, such as internet search history, or had some other corroboration such as the images having been displayed intentionally to another person who could upon being presented the images on the witness stand identify them in context.
So to be clear, when images were found deleted, there was a burden on the prosecution (not the defense) to prove knowledge and intent.
Of course different countries and different states may approach things differently.
(This is not legal advice, I am not a lawyer.)
Ignorance is not a defense in my country, either. But my question is not this. It is something different.
The question is how far back can or should law go back for crimes perpetrated by possessing something illegal, when the possesion was in the past.
If law goes back as far as it can, in this case, can a person, aged 28, saying "I had drugs at home when I was 26", can he still be prosecuted for his possession of drugs when he was 26.
If law does not go that far back for your past possesion which you had got away with, it should not go that far back, either, for crimes of possesing illegal content in one's computer.
In that scenario it would depend on the statute of limitations in your country.
The deal-breaker here could be that technically the images are still on the drive, whether or not the user can still access them may be irrelevant. I'm not sure if there is any case law on this where a precedent has already been set. Maybe someone with more experience can answer that.
Some areas in my state won't prosecute for files that have been deleted (regardless of the amount). Some will, there isn't much of a standard set. Either way, such drives will still have to be destroyed or wiped as they contain contraband.
Regarding the issue with timeliness, freshness of evidence is relevant. If you have a suspect who has CP on a couple of 5 and half inch floppies time stamped for 1994, it is very unlikely he would be charged for possession because of how old it is. However, this might be reason enough to execute a search warrant on the newer computer and devices to determine if this possession continued. I don't think there is a standard set, but the concept of stale evidence has been around for ages.
If you are in possession of CP ANY CP and a computer shop, cable guy, neighbor, prosecutor, AUSA, etc. finds out about it, there is no freshness of evidence, you're going to get charged, the only thing to wonder now is if you are Federal or State. Sorry but that is just not properly stating facts. Jurisdiction and charging ability differ, but CP is not something like someone having one .mp3.
Bad example…
Regarding the issue with timeliness, freshness of evidence is relevant. If you have a suspect who has CP on a couple of 5 and half inch floppies time stamped for 1994, it is very unlikely he would be charged for possession because of how old it is. However, this might be reason enough to execute a search warrant on the newer computer and devices to determine if this possession continued. I don't think there is a standard set, but the concept of stale evidence has been around for ages.