Federal Crimes Blog

What Factors Determine How Child Pornography is Prosecuted?

Posted by Hedding Law Firm | Jul 26, 2020

What Determines Whether the Federal Government or the State deals with a Child Pornography Prosecution?

This is a big question because a lot of times, what's happening is someone is coming to a person's house or business, arresting that person, or simply searching their house.

They are taking computers, phones, and tablets, trying to get a statement from the person, and hopefully, the person is not stupid enough to give a statement because that's usually more evidence to prove that whatever computers they're taking is their computer and a lot of times people even admit when it comes to a child pornography situation.

The next question's going to be, do they have the evidence?  They're going to send the computer to a forensic expert to evaluate it, which will take some time.  Sometimes they're able to find the evidence right on the computer — downloaded there.

Other times, they can't find it because it's either been deleted or encrypted in some way.  Unfortunately, the feds have the capability to get through that.  It will just take them some time to do so.

To give readers a better understanding of what factors determine how child pornography cases are prosecuted, our federal criminal defense attorneys are providing a review below.

Amount of Child Porn Images Seized

Then, when you start thinking about whether the state or federal government is going to prosecute it, it's hard to tell sometimes because a lot of times when the search warrant is executed at somebody's location, but the feds and the state are present to execute that search warrant.

What Factors Determine How Child Pornography is Prosecuted?

I can tell you right now the biggest determining factor in a federal child pornography prosecution is the amount of child pornography.  Whether it be still photographs, videotapes, or whatever the situation might be.

Obviously, the more you have, the more likely the feds will get involved.  If it's only a few downloaded images, the feds usually won't get involved with that.

They'll kick that case down to the state and let them deal with that.  If it's hundreds or thousands of images, the feds are probably going to take the case.

You're probably better off if the state takes it.  The federal sentencing for child pornography cases — whether it be straight possession, distribution, or production — whatever the case may be, is a very vicious sentencing scheme, and a lot of times, people are looking at multiple years in federal prison served at 85%.

Type of Child Pornography Images and Prior Record

So, the biggest factor is the amount of images.  Of course, other factors apply.  What about the type of images?  If it's a borderline case whether the feds or the state are going to take it, usually if the images are of small children or bestiality or other such videos or photographs, the feds may decide to take the case.

They're also going to look at the person's criminal record in deciding whether the federal government or the state government is going to take the case.  There are other factors, potentially including cooperation.

Sometimes somebody may want the federal government to take a case if they're going to cooperate with them and give them more information so they can arrest other people who are involved with child pornography because people who do that can get credit for that and significant time shaved off their federal sentence.

Retain a Federal Criminal Defense Lawyer

So, your best bet is if law enforcement, the FBI, Homeland Security, the Sheriffs, or the police have come into your home, executed a search warrant, given you a copy of the search warrant, tried to take a statement from you and not arrested you, you should immediately get to an attorney.

What I typically do is call up the agent and find out if there's a prosecutor assigned to the case, and then I'll be communicating with that person, obviously trying to keep you out of custody.

A lot of times, when they do go through your computer, if they find a significant amount of images, they're going to come and arrest you and take you into custody.  They may even try to keep you in custody — keep you detained without being able to post any type of bond.

Your attorney's job is to try to negotiate with them, keep you out of custody and bring to bear everything we can at sentencing, including a mitigation package, a sentencing memorandum and the like, in order to get you the lowest possible sentence. Contact our law firm for a free case evaluation at (213) 542-0994.

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