Child Pornography

California Penal Code Section 311

The Law

California Penal Code Section 311

California Penal Code Section 311 makes it illegal to knowingly possess “obscene” images of a minor. “Obscene” is defined in the statute as an image that appeals to prurient interest and depicts sexual conduct in an offensive way while having no literary, artistic, political, or scientific value. The punishment ranges from county jail to state prison, depending on the number of images and the activity depicted in the images.

These types of cases are frequently prosecuted in Federal Court under 18 U.S.C. Sections 2251, 2252, 2256, and 2260. The punishment in Federal Court is often more severe than state prosecutions.

What Does This Mean?

Whether an image is obscene is rarely an issue. Supreme Court Justice Potter Stewart noted it might be difficult to define what an obscene image is, but “I know it when I see it.” Therefore, there is no danger in possessing images of a young child in a bath or children at the beach in bathing suits. However, teenage kids have been prosecuted for possessing images of one another in stages of undress (”sexting”).

Images that have been printed or saved on a hard drive or cell phone all qualify under the law. The authorities can prosecute a case when the illegal image is saved and deleted. (Remember, just because you delete something on your computer, it can still be found.)

How To Defend These Charges

These types of cases typically come about when the government has credible information that a person is in possession of images. Today, nearly all these cases deal with possession of images on a computer.

Sometimes a person will provide the police with credible information. Other times, authorities monitor foreign web sites that traffic in such material. They will then trace the computer address that received such images.

In either event, the authorities will obtain a search warrant and seize the computer where the suspected illegal images exist. The computer will be examined and if illegal images exist, a prosecution will take place.

The defense must establish the defendant did not possess or have access to the device where the images were located. Oftentimes it can be shown the computer was used by more than one person and therefore, the blame can be shifted.

The defense is also entitled to use their own expert to examine the hard drive. This can result in information that shines the light of prosecution on another.

This is why it is imperative to have an attorney who is knowledgeable in the law and experienced in the courtroom. It is important to have an attorney who can work with computer experts. It is important the attorney have the ability to convey technical aspects of these types of cases to the jury in order to reach a successful result.

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