Unknowing Possession of Child Pornography

Recent developments in federal case law suggest that child pornographic images contained in a computer's cache files and temporary Internet files might not be properly charged against a person found in possession of the computer without some other evidence the person knowingly exercised care, custody, control, or management over the images. In the case of United States v. Kuchinski, 469 F.3rd 853 (9th Cir. 2006) the 9th Circuit Court of Appeals ruled that images of child pornography contained in the defendant's computer's cache should not have been counted for sentencing purposes when there was no evidence that the defendant was a sufficiently sophisticated computer user familiar with the behavior of cache files.

Defense lawyers argued that Kuchinski's prosecution for receipt and possession of child pornography violated the double jeopardy clause, that any use of the United States Sentencing Guidelines violated the separation of powers doctrine, and that he was improperly sentenced when all child pornography images on his computer were counted for sentencing purposes. The Court affirmed his conviction, but vacate his sentence and remand the case to the trial court for re-sentencing.

The courts have made it plain a person knowingly possesses child pornographic images when they seek out images over the Internet and then download them to their computer. However, when a person accesses a web page, the web browser will automatically download that page into the temporary Internet files. When the temporary files get full, they spill excess saved information into the deleted temporary Internet files. All of this goes on without action (or knowledge) of the computer user. A sophisticated user might know this is occurring, but most computer users do not even know these images are on their hard drive.

Texas Internet Crime Lawyers defending cases where their clients are charged with possessing child pornographic images would be wise to engage the services of a forensic computer examiner to determine where on the computer hard drive the images existed. For "unsophisticated" computer users this may be a very effective defense strategy.