Virginia Child Pornography Lawyer

Virginia Child Pornography Attorney

Child pornography charges in Virginia fall under a class of internet sex crimes that can lead to lengthy prison sentences and registration on the sex offender registry. Anyone accused of a child pornography offense in Virginia should seek out an experienced Virginia sex crimes lawyer as soon as possible. Early intervention by a knowledgeable criminal defense lawyer can secure your future and protect your reputation.

From our offices in Alexandria and Charlottesville, our lawyers at Johnson/Citronberg have successfully represented individuals accused of child pornography offenses across Virginia. By utilizing leading experts in computer forensics and psychology, our firm routinely obtains dismissals, reductions, and some of the most lenient sentences possible.

The best way to defend yourself against criminal investigations or charges is to hire an experienced criminal defense attorney as soon as possible. Contact us today to discuss how we can help your case.

What is Child Pornography?

The issue of what constitutes child pornography is not always black and white. Virginia law states that child pornography is any “sexually explicit material which utilizes or has as a subject an identifiable minor.” This definition, of course, requires an explanation of what constitutes “sexually explicit material” as well as an “identifiable minor.”

The phrase “sexually explicit material” is generally defined as any image or video which depicts sexual conduct, sexual excitement, sadomasochistic abuse, lewd exhibition of nudity, or bestiality. One area of concern in child pornography cases is when images or videos are found in a computer’s temporary internet cache. Virginia law specifically addresses this issue and considers “sexually explicit material” to include a situation where “three or more images or streaming videos are present” in the temporary internet cache.

The term “identifiable minor” is generally described as a person who was a minor at the time the image or video was created or modified. It also includes a person whose image as a minor was used in creating or modifying the image or video and is recognizable by their face or likeness (i.e., a distinguishing characteristic such as a birthmark).

Types of Child Pornography Offenses

Virginia law breaks child pornography offenses into three different categories, each one more serious than the last: 1) possession of child pornography; 2) distribution of child pornography; and 3) production of child pornography. Each offense carries different penalties and can involve different types of legal defenses.

Possession of Child Pornography in Virginia

Possession of child pornography is illegal under Virginia Code § 18.2-374.1:1. The statute specifically states that “any person who knowingly possesses child pornography is guilty of a Class 6 felony.” A Class 6 felony carries up to 5 years of prison, but Virginia law counts any additional image as a Class 5 felony which carries up to 10 years in prison. Because the vast majority of cases involve more than a single image, the potential penalties can add up quickly.

Distribution of Child Pornography in Virginia

Distribution of child pornography is made illegal under § 18.2-374.1:1(C). The law essentially outlaws two different types of acts:

• First, it is illegal for any person to knowingly reproduce, display, purchase, or to possesses with the intent to sell or distribute child pornography.
• Second, it is illegal for any person to command or attempt to persuade another person send any child pornography to him in order to gain entry into a group engaged in sharing child pornography.

A person convicted of distribution of child pornography is subject to a sentence of 5 to 20 years in prison, and a second violation carries 5 to 20 years, with the 5 years being a mandatory minimum. The mandatory minimum must also be consecutive (in addition to) with any other sentence. Additionally, anyone who operates a website which facilitates the payment for access to child pornography is guilty of a Class 4 felony. A Class 4 felony carries 2 to 10 years in prison.

Production of Child Pornography in Virginia

The crime of production is found at § 18.2-374.1 and outlaws anyone from enticing or soliciting a minor (under 18 years old) with the intent of inducing or forcing the minor to perform in or be the subject of child pornography. This law carries harsh sentencing penalties.

If the minor is less than 15 years old, a person will receive a sentence between 5 and 30 years in prison. If the person is 7 years older or more than the minor, the 5 years is a mandatory minimum. For a second offense where the person is at least 7 years older than the minor, the mandatory minimum increases to 15 years in prison and the maximum sentence increases to 40 years.

For cases where the minor is between 15 and 17 years old, the law calls for a sentence of 1 to 20 years in prison. But if the person is more than 7 years older than the minor, the penalties increase to 3 to 20 years in prison, with the 3 years being a mandatory minimum. For a subsequent offense, the mandatory minimum increases to 10 years and the maximum sentence increases to 40 years.

Four Steps to Defending Child Pornography Cases

Our lawyers at Johnson/Citronberg employ four steps to defend against and win child pornography cases. This strategy has led to an overwhelming number of dismissals, reductions, and lenient sentences.

• Step 1: Filing motions to suppress evidence
• Step 2: Hiring a computer forensic expert & psychologist
• Step 3: Filing pre-trial motions
• Step 4: Trial preparation

Step 1: Filing Motions to Suppress Evidence

The vast majority of child pornography cases in Virginia involve law enforcement obtaining a search warrant in order to search someone’s residence and to seize their computers, hard drives, and cell phones. These search warrants must comply with the relevant laws, including the Fourth Amendment to the United States Constitution.

In order to obtain a search warrant from a judge, a law enforcement officer is required to prepare an affidavit which explains why there is probable cause to believe that evidence of a crime (i.e., images or videos of child pornography) are located at a particular residence or on a particular electronic device. A good criminal defense lawyer will review the affidavit supporting the search warrant to determine if there was probable cause for the warrant to issue. Issues like staleness, lack of a nexus, failure to allege a crime, or alleging the wrong crime can render a search warrant invalid. A criminal defense lawyer will also look to see if the law enforcement officer lied in the affidavit or failed to include facts which would cast doubt on probable cause.

There are also many other factors that could render a search warrant invalid (i.e., the judge was without jurisdiction to issue the warrant, the warrant failed to properly specify the place to be searched or the things to be searched for, the warrant listed the wrong address, etc).

If your lawyer finds an issue with the warrant, he can file a motion with the Court to suppress the evidence. If the motion to suppress is granted by the judge, the prosecution will typically have to dismiss the entire case. If there was no probable cause or if the officer lied, a lawyer can file a motion in court asking the judge to suppress the evidence.

Your lawyer will also look to see if you made any statements to law enforcement. Normally, law enforcement will attempt to interview the residents of a home when it executes the search warrant. The prosecution will then use these statements at trial to establish guilt. Law enforcement, however, often runs afoul of Miranda v. Arizona.

Miranda is a case that requires law enforcement to make you aware of certain rights before questioning someone in custody (including the right to a lawyer and the right to remain silent). If your lawyer believes that your statements were obtained in violation of Miranda, he can file a motion asking the court to suppress the statements. In some cases, the only evidence tying a person to the evidence may be their interview with law enforcement. In those instances, the prosecution will likely have to dismiss the case entirely if the judge suppresses the statements.

Step 2: Hiring Experts

Any defense in a child pornography case should involve consideration of using expert witnesses. There are two primary types of witnesses that can greatly assist the defense:

Computer Forensic Experts. When law enforcement searches a computer or cell phone, they are simply looking for illegal videos and images along with search terms indicative of child pornography. To accomplish this, law enforcement typically uses software such as EnCase or Cellebrite. These searches, however, only tell part of the story, and they often miss critical facts which can establish complete legal defenses.

An independent computer forensic expert’s review of a computer or cell phone is focused on finding potential defenses and casting doubt on the prosecution’s expert’s findings. A defense expert can help to establish the following defenses:

• Deleted, cache, or temporary internet files
• Someone else downloaded the image or video
• The computer is infected with a virus or malware
• No actual image or video
• The person in the image is not a minor
• Lack of venue
• Did not know distribution was occurring

Another common defense that an expert can help with is when the download was unintentional. Many child pornography cases involve P2P programs such as BitTorrent, Ares, or Kazaa. These programs are designed so that a user may accidentally download child pornography when that was never the user’s intention. While law enforcement is only concerned with whether child pornography is somewhere on the machine, a defense expert can determine if the download was unintentional by looking at the original file name, whether the file was ever opened, and whether the user tried to delete the file.

Even if a case does not proceed to trial, defense experts can be incredibly useful for negotiating a deal with prosecution or receiving a lenient sentence from the judge. The prosecution will often misstate the number of images, the location of the images, the length of video files, and how long the alleged conduct was going on. A defense expert can set the record straight and show that the facts are not nearly as bad as the prosecution portrays.

Psychological Experts. It often makes sense for an individual accused of a child pornography offense to undergo a psychosexual evaluation. This can be helpful for a couple of reasons. First, the psychosexual may show that the person has no sexual interest in children, thereby helping to establish his innocence. Such testimony in conjunction with the testimony from a computer forensic expert is powerful evidence.

Second, a psychological expert can testify that a person is either not a risk to the community, or in the alternative, that he is a low risk to the community. Such testimony is often necessary in order to work out a deal with prosecutors to a reduced charge or to receive a lenient sentence.

Virginia also has a relatively new law which can greatly help charged individuals who have autism. Under Virginia Code 19.2-303.6, a judge can put a person with autism spectrum disorder on probation, and the case can eventually be dismissed altogether. To do so, the judge needs to find that the illegal conduct was caused by (or had a direct and substantial relationship) to the individual’s disorder or disability. In order to take advantage of this law, a psychologist or psychiatrist will normally have to testify that the individual has been diagnosed with autism or another qualifying disorder.

Step 3: Filing Pre-Trial Motions

One area of criminal defense that is often overlooked involves filing pre-trial motions or motions in limine. These motions typically seek to limit the evidence that the prosecution can introduce into evidence at trial. While every case is different, some of the most common pre-trial motions in child pornography cases are the following:

• Challenging the prosecution’s expert. The prosecution’s forensic expert is usually critical to the prosecution’s case. Prior to trial, the prosecution will provide the defense with an expert report detailing their findings and opinions. A good defense lawyer will file a motion arguing that the expert’s testimony should be excluded from trial because the expert is not qualified or because the expert’s opinions are not reliable.
• Limiting the testimony of the prosecution’s expert. The prosecution’s expert is likely skilled in testifying and will attempt to testify beyond their area of expertise. A motion seeking to limit their testimony to specific facts is often necessary to prevent them from offering unqualified expert testimony.
• Limiting the number of images or videos. The prosecution will likely attempt to introduce numerous images into evidence. The cumulative effect of numerous images can be inflammatory and prejudicial in the eyes of the jury. A defense lawyer should file a motion seeking to limit the number of images to just a handful.
• Excluding prior bad acts. The prosecution will attempt to introduce any prior bad act which may help establish that he knowingly possessed the child pornography at issue. This may come in many forms, including a prior conviction or testimony from a former girlfriend. A defense lawyer should file a motion prior to trial arguing that such evidence is irrelevant and prejudicial and should therefore be kept out of the trial.

Step 4: Trial Preparation

Trial preparation is critical to successfully winning an acquittal at trial. In child pornography cases, there are a number of special considerations that a defense lawyer to address prior to trial:

• Preparing to cross-examine the prosecution’s expert. The defense lawyer will likely need to consult with an independent computer forensic expert to adequately cross-examine the prosecution’s expert. With the help of an independent expert, a defense lawyer can create a list of questions to cast doubt on the testimony of the prosecution’s expert.
• Preparing the defense’s expert witness. The defense lawyer needs to prepare the defense’s expert for a detailed but focused direct examination. The examination needs to be tailored to the defense’s specific theory of defense while explaining why the prosecution’s expert is wrong.
• Character witnesses. The defense lawyer should line up a number of character witnesses who can testify that the defendant has no affinity towards children. These witnesses can include the defendant’s wife, former girlfriends, children, or any witness who can provide insight into the matter.

Top Criminal Lawyers in Virginia – Contact Us Now

Our Virginia criminal defense lawyers fully understand how to defend against child pornography charges. We have won dismissals, obtained reductions, and received sentences of straight probation for individuals charged with child pornography offenses across Virginia.

If you or someone you know is facing a child pornography charge in Virginia, contact us now for immediate help.