Felony Sexual Exploitation of a Child

Johnson County, Kansas law enforcement often use Roundup eMule to locate computers that are potentially sharing files that are related to child pornography or actual child pornography. There are other software tools used by police to search for potential computers using child porn. Using their software, they are able to determine the IP address of the computer. They then use that information to get a subpoena from the Court. The subpoena is served on the internet provider whom the IP address is registered to. The internet provider is then compelled to provide the personal information of their client using their services. In other words, the internet provider provides the police the subscriber’s name, address, and information. The officer then uses that information to obtain a search warrant on the residence. They go to the house, do a search, and confiscate the computers and electronic devices that may have evidence of child exploitation. The investigating detective then takes the computers back to the labs where they do a forensic analysis to determine what files are on the computer.

The evidence is then sent to the County attorney who makes a decision on whether to prosecute the felony case. If charges are files, then the defendant is arrested on a warrant, where there are then brought to the jail, processed, and eventually allowed to post bond. The bond amount can vary depending on the severity of the charges, nature of the evidence found, past criminal record, and other factors.

Prior to this point, the Defendant may have already hired a criminal defense attorney to represent them before charges were filed. Hiring a criminal defense lawyer prior to an investigation or charges being filed can potentially help a defendant with an investigation, limit evidence against them, and sometimes prevent charges from being filed. However, if the defendant has not yet retained an attorney, they should do so right away.

That attorney will then enter their appearance on the court case, order discovery (reports, videos, etc) and analyze the case. Depending on the situation, there may be suppression motions to file and argue at hearing. Additionally, the defendant will be provided a preliminary hearing at which time their lawyer can challenge some of the evidence against and argue there isn’t even probable cause for the prosecutor to move forward.

It is during the discovery and motions faze that the criminal defense attorney may push a very controversial issue regarding how the defendant’s computer was targeted in the first place. There may be Constitutional issues. Also, there may be arguments regarding exactly how the software works and demands that the intricacies and source code for the software be provided for the defense to independently test. In extremely rare cases in the United States, a very few number of child pornography charges have been dismissed when the defense challenged and aggressively pushed for the prosecutor to provide the source code and software information.

It is rare, but in the right case, a judge could potentially order the prosecutor to provide such information. Obtaining such an order would be difficult as the prosecutors will argue many things such as that ordering such a thing would greatly inhibit law enforcement’s efforts against child pornography, the software is protected by copyright laws and contract agreements with the manufacturer. In the rare cases where prosecutors are forced to provide this information, the prosecutor would be tempted to dismiss the case instead of actually giving over the information. But again, this is extremely rare. Most exploitation of a child charges result in a conviction and a plea. In Kansas, the felony charge of exploitation of a minor child demands years in prison if found guilty. So, depending on the facts, sometimes our goal as the defense attorney is to avoid prison for our clients and work out a deal for probation. In many cases, this is exactly what we do instead of alienating the prosecutor, pushing the discovery and Constitutional issue. In the end, after looking at the specific case and advising the client, it is up to our client to decide whether to have us push certain issues, take the case to trial, or work out a favorable deal for them.

While it is risky, in the right case, a suspect may want to consider pushing the software issue. A redacted user manual from such software was used in a court case, and stated that the software used information from unverified data. If the defense attorney could actually get this manual and use it in a motion, their could be numerous uses, such as a potential motion to suppress and argue that the initial warrant, that was based on this unverified information, was Unconstitutional.

One could also use a forensic expert in this area to do an independent test on the computer in question and potentially testify about potential problems such as whether the files were actually found on the computer, whether there was a torrent file showing the connection to child pornography and etc. The expert could also address things such as any ”info hash” on a file on the computer that might incorrectly identify a file as child porn or show that the file was maybe downloaded by accident.

In the end, a felony charge of sexual exploitation of a child (child pornography) is extremely serious and treated very harshly as are all sex crimes. If you are under investigation for such an allegation, contact our firm to hire an experienced attorney to represent you. Let us help you resolve your serious case.