united-states child-porn
Can someone be convicted of possessing illegal images if no evidence can be found on the suspect’s computer?
<p>Perhaps it might technically be possible, but can someone be convicted of possession of illegal images if nothing can be found on his or her computer? For instance, suppose a website hosting normal legal material and illegal material was seized and its databases looked through, and authorities found Bob’s email address on the server, as well as access logs with his IP address relating to illegal material.</p>
<p>Is this enough for a search warrant, and if so, if nothing relevant to a criminal case could be found on Bob’s computer or anywhere else searched, is this still enough to convict Bob of possession of such materials?</p>
<p>I’ve never heard of any such cases where someone is convicted of stuff like child pornography where evidence could not be found on the suspect’s computer of some kind, so I wonder if it’s even possible at all.</p>

<p>Probably not. Let us take the case <a href="https://www.opn.ca6.uscourts.gov/opinions.pdf/15a0169p-06.pdf" rel="noreferrer">US v. Lowe</a> where the evidence seems even more damning. Lowe was convicted, because his computer actually did contain hundreds of child porn images. Police had IP logs that indicated that someone at Lowe's address was hosting a porn-sharing network and they downloaded some porn from the network. After a raid, illegal images were found on one computer, and forensic evidence provided a bit of evidence regarding when some of the files were downloaded, which was also connected with a person opening an invoice file containing the defendant's address 40 minutes before one of the porn files finished downloading.</p>
<p>Lowe moved for acquittal and did not enter any evidence. The court denied the motion. Even so, the court commented that</p>
<blockquote>
<p>I  have  to  say,  in  this  case,  it  has  been  particularly
difficult,  even  though  it’s  my  job  to  do  so,  to  discern
where  that  line  [between  speculation  and  reasonable  inference]
is  and  where  what  might  be  a  reasonable  inference  that  can
be  drawn  from the record evidence becomes nothing more than an
invitation for the jury to speculate as to what the evidence may be or
what it may show</p>
</blockquote>
<p>Lowe was convicted. On appeal, the court concluded that</p>
<blockquote>
<p>no rational juror could  find  him  guilty  beyond  a  reasonable
doubt  based  on  the  evidence  presented  at  trial.</p>
</blockquote>
<p>A juror could conclude that there was porn on the computer and that the defendant occasionally used the computer. But</p>
<blockquote>
<p>without  improperly  stacking  inferences,  no  juror  could  infer
from  such  limited  evidence  of  ownership  and  use  that  James
knowingly  downloaded, possessed, and distributed the child
pornography found on the laptop.</p>
</blockquote>
<p>The court noted that there were two other individuals in the house who also had access to the computer. In particular, no evidence was presented to prove that defendant's wife had not accessed the computer at the relevant time. There is a long list of things that the prosecution failed to prove (e.g. they provided no evidence regarding what the defendand and wife did for a living, which was relevant to the evidence regarding &quot;opening an invoice&quot;. The court sums up by saying</p>
<blockquote>
<p>the  evidence  presented  here  fell  well  short  of  what  we  have
found  sufficient  to  convict  in  other  cases  involving  multiple
possible  users  of  a  single  device.</p>
</blockquote>
<p>(Citations include <em>US v. Oufnac</em>,  449  F.  App’x  472; <em>US v. Mellies</em>, 329 F. App’x 592. The court also found that</p>
<blockquote>
<p>the  evidence  did  not  permit  a  juror  to  conclude  that  James
knew  the  HP  Pavilion  laptop  contained  child-pornography  files
and  permitted  them  to  remain  on  the  computer.</p>
</blockquote>
<p>since the files were buried in a Shareaza file-sharing library, and no evidence was introduced to prove that the defendant had opened the file-sharing program.</p>
<p>If you apply the findings in this case to your hypothetical, you could not possibly get a conviction that would not be overturned by a reasonable appeals court. The details of Lowe's trial are not clear from the appeal, but it appears that Lowe (or his attorney, if there was one) failed to create doubt regarding the government's case. Legally speaking, the defendant is not required to create doubt, but the <a href="https://www.ca6.uscourts.gov/sites/ca6/files/documents/pattern_jury/pdf/Chapter%201_0.pdf" rel="noreferrer">instruction on reasonable doubt</a> may have contributed to the problem. The jury is told that &quot;Possible doubts or doubts based purely on speculation are not reasonable doubts&quot;, but since there <em>was</em> porn on the computer, a juror would have had to speculate that someone else downloaded it. The jury is told that &quot;it may arise from the evidence, <em>the lack of evidence</em>, or the nature of the evidence&quot;.  We do not know to what extent defense failed to make the argument that the government's evidence was severely lacking.</p>

<p>Prosecutions are commonly based on the detection of child pornography by cloud service providers. For example, <a href="https://casetext.com/case/united-states-v-viramontes-18" rel="noreferrer"><em>United States v. Viromontes</em></a> concerned child pornography found on the defendant’s Dropbox account. In that decision, there is no indication that the defendant’s physical computer was searched.</p>
<p>Whether the evidence is found on a physical device owned by the defendant or a remote system under their control, it’s also common for the defendant to argue that they weren’t aware of (ie. intentionally possessing) it. It is up to the jury to decide whether this defence gives rise to a reasonable doubt, after considering all the circumstantial evidence in a particular case.</p>

<p>You can be correctly convicted if there is evidence to show you are guilty beyond reasonable doubt. So if there is nothing on Bob's computer, you have to ask yourself the simple question: Is the available evidence enough to find Bob guilty beyond reasonable doubt? That would depend on the evidence.</p>
<p>For example, if you find evidence beyond reasonable doubt that Bob and nobody else ordered things, that Bob and nobody else paid for them, and that Bob and nobody else wrote a letter that he is very happy with what he received, that could very well be taken as evidence beyond reasonable doubt that Bob was in possession of those things at some point. But if there is a chance that the original information <em>might</em> reasonably have been wrong, then most likely not.</p>
<p>And if an expert witness says not only that there is no evidence on Bob's computer, but that there would have been evidence left if the things had ever been there, that is more than reasonable doubt. Same as if someone is shot with a gun; if an expert says the gun was wiped perfectly clean with no fingerprints left, that is no evidence either way. If the expert says &quot;we found some old fingerprints, from before the killing, and some newer ones which are most likely from the murderer, and they don't match Bob's fingerprints, and the old fingerprints prove the gun wasn't cleaned&quot;, that will create very reasonable doubt about his guilt.</p>

<p>There is more than one way to skin a cat.</p>
<p>For example, suppose that a witness testified credibly under oath that he say Bob download the material onto his computer, and then bragged over a beer while camping in the middle of nowhere, about how he was never going to get caught because he downloaded it via an anonymous server, and then physically switched out the hard drive for a duplicate hard drive that had all the same files as the original and dropped the original into the Old Faithful Geyser, as he learned how to do as a PhD in computer science at M.I.T.</p>
<p>This sworn testimony, standing alone, if not convincingly contradicted with hard evidence beyond a mere lack of evidence found in a search, and if corroborated by things like Bob's academic record from M.I.T. and his visit to the national park in question at the right time, would be enough to support a conviction beyond a reasonable doubt, and would be upheld on an appeal based upon insufficiency of the evidence at trial.</p>
<p>Many murder convictions have been upheld on appeal with evidence no more solid than that.</p>
