Defending Pornography Possession Charges in Florida

Many criminal prosecutions hinge almost entirely on eyewitness testimony. Typically, the case is a single-witness case. The arresting officer is the only witness. Possession cases, especially pornography possession cases, are different, mostly because of the best evidence rule.

This legal doctrine, which normally applies to documents, requires litigants to produce the original in court if at all possible. In criminal possession cases, this rule requires prosecutors to produce the contraband in court. An officer’s testimony in this area, regardless of its credibility, is insufficient.

The best evidence rule is only part of the picture. Prosecutors must still establish possession beyond a reasonable doubt. So, unless the state can produce the contraband and establish possession with overwhelming evidence, a Tampa pornography charges attorney can often successfully resolve pornography and other possession charges.

Pretrial Procedure

Procedural issues often dominate possession cases, and the judge usually rules on these procedural issues after a pretrial hearing. If an attorney can exclude the contraband, prosecutors must normally dismiss the case, because of the aforementioned best evidence rule.

Normally, police officers must have search warrants before they can seize illegal electronic images on computers or other pornography. These warrants are only legal if police officers had probable cause.

Typically, warrants rely heavily, or even exclusively, on an informant’s testimony. In exchange for their cooperation, most informants receive leniency in another matter or a substantial cash payment. Therefore, such testimony is always questionable. Many people will say practically anything for love or money.

In the absence of a warrant, a narrow search warrant exception must apply. Consent is the most common exception in pornography cases. Owners, or apparent owners, may give officers permission to search their computers, homes, or other property. An apparent owner is someone like a computer user who doesn’t own the device.

Normally, consent is an overt, voluntary act which can be withdrawn later. If all these elements aren’t present, the consent search usually does not hold up in court.

Trial Issues

Speaking of three elements, “possession” has three elements as well. So, producing the item is insufficient. Prosecutors must also establish:

• Proximity,
• Knowledge, and
• Control.

Knowledge in electronic image pornography possession cases is a good example. Many times, the electronic image was a thumbnail. It’s usually impossible to discern details in these situations, such as the subject’s age. Other times, the image goes directly to a spam mailbox. So, even though the pornography is on the defendant’s computer, the defendant most likely didn’t know it was there.

Since the evidence is often weak in these cases, a Tampa criminal defense attorney usually has some options in terms of resolving these charges.

Pretrial diversion is normally available, since possession of pornography is a nonviolent offense. Program requirements vary in different courts. Typically, the defendant must attend some self-improvement classes and stay out of trouble for a few months. If the defendant completes the program, prosecutors normally dismiss the charges. This dismissal is available even if the defendant doesn’t have an effective defense to the allegations.

Connect with a Hard-Working Hillsborough County Attorney

Pornography possession charges often don’t hold up in court. For a free consultation with an experienced criminal defense lawyer in Tampa, contact the OA Law Firm. We routinely handle matters throughout the Tampa Bay area.

Resource:

floridasupremecourt.org/content/download/423101/file/Filed_05-19-2005_SupplementalReply.pdf