Child Pornography: Accidental Possession Defense Possible?

On Thursday, June 14, 2012, attorney Max Keller of Keller Criminal Defense Attorneys argued a possession and distribution child pornography appeal case at the Minnesota Court of Appeals. The case involves a number of issues specific to this client but not of statewide importance, such as sentencing issues and sufficiency of the evidence issues. Two issues argued are of statewide importance and involve the constitutionality of Minnesota’s pornography statutes. The judges focused on one particular issue, that of whether Minnesota’s possession of child pornography and dissemination of child pornography statutes are unconstitutional, because the statutes are “strict liability” statutes meaning that a person can be convicted for possessing illegal images even though he had no intent to do so.

Mr. Keller argued that the Minnesota pornography statutes do not protect an individual who unknowingly possesses materials that are later found to be child pornography. The issue is whether the statutes allow someone to be convicted of an offense when an individual accidentally downloads material that they later find out to be child pornography.

We  argued that the statutes do not protect a person in the above scenario.  The essential elements of the statute are that an individual (1) possesses child pornography materials and (2) knew or had reason to know the materials contained child pornography. We argued that as soon as someone “clicks” on material and discovers that the materials are child pornography, then the individual knows or has reason to know the material is child pornography. Because the person was “in possession” of the materials when they clicked to open a file to see what it was, and possibly delete it, the person has now satisfied the elements necessary for a prosecutor to convict him of child pornography. Even if he immediately deletes the child pornography, the person still once possessed it. Therefore, he can be charged with possession. A defense that the person never intended to possess illegal pornography is irrelevant, because the statute is a “strict liability”one that mandates ignoring a person’s intent in possessing the materials!

The Court of Appeals seemed surprisingly sympathetic to this argument.  One judge described a similar situation that almost led her to stumble upon child pornography, based on a Google search she performed while shopping for a gift for her granddaughter. While it is never wise to read too much into the questions and attitude from the bench during oral argument, this story provided hope that the Judges see this statute as Unconstitutional. The statute is ripe to trap innocent conduct and lead to convictions of people who never intended to possess child pornography, but came into possession of the materials because they were unfamiliar with internet searches and downloading protocols.

The case is State of Minnesota v. McCauley, No. A11-0606. The Court of Appeals should issue an opinion in the next three months. Check back here for an update as the deadline for a decision comes closer.

Max Keller has won countless jury trial cases involving misdemeanors and felonies, sex crimes, and DWI’s. He is a member of the Minnesota Society for Criminal Justice, which only allows the top 50 criminal defense attorneys in the state as members. Max is a frequent speaker at CLE’s and is often asked for advice by other defense attorneys across Minnesota.

Years of Experience: Approx. 20 years
Minnesota Registration Status: Active
Bar & Court Admissions: State of Minnesota Minnesota State Court Minnesota Federal Court 8th Circuit Federal Court of Appeals State of Maryland

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