Possession of Child Pornography Prosecutions are a Law Enforcement Priority
Possession of child pornography is prosecuted very aggressively in Fort Lauderdale. Criminal lawyers who handle such cases must be very well versed in the controlling law. Understanding the prosecution’s burden in court can make the difference between winning and losing.
As a criminal lawyer, I am always reminding clients, juries, and prosecutors that the burden of proof does NOT rest with the defendant, even in possession of child pornography cases. Rather, the burden of proof is always on the prosecution.
Remember, it is the prosecution bringing forward the allegation, not the defendant.
Since it is the prosecution who wishes to change the status of the defendant from innocent, as we all are considered, to guilty, it is the prosecution duty to produce evidence (and not the defense). Even when the prosecution presents compelling evidence, it may still not be enough to support a changing the defendant’s status from innocent to guilty.
When the prosecution presents a charge, it must prove each and every element of that offense beyond a reasonable doubt. If a criminal offense is comprised of multiple elements, the prosecution has the duty to prove all of the elements beyond a reasonable doubt. Two out of three is not enough. One out of three is not enough. Zero out of three is clearly unacceptable. Rather, the prosecution must prove all three elements beyond a reasonable doubt without exception.
At no time must the defendant prove his/her innocence.
On the contrary, the defendant has no burden whatsoever. Even when the prosecution is able to stir up a lot of suspicion of guilt, the defendant has no duty whatsoever to prove anything or rebut anything. One concept many jurors do not understand is that a criminal defendant does not have any duty to respond to the prosecution.
When the prosecution charges a person with possession of child pornography, they must prove that the defendant knowingly possessed materials, such as a photograph or movie, that he/she knew to include, whether in whole or in part, any sexual conduct by a child. It is important to note that a person can be charged with one count of possession of child pornography for every image, video, or photograph he/she has in their possession.
Even if a movie is only 30 seconds in length, a person can be facing an entirely separate count for its possession.
It is also important to note that possessing more than three copies any material that depicts child pornography is considered proof that of intention to promote the images. This is an extremely important distinction because possession of child pornography is third degree felony punishable by up to 5 years in Florida State Prison. On the contrary, possession of child pornography with intent to promote is a second degree felony punishable by up to 15 years in Florida State Prison.
Clearly, the difference in offenses is great.
Not only is one subject to a greater penalty, but the severity of the crimes is legally different. This difference in severity will be most harmful when a person’s minimum prison calculation is scored on their sentencing score sheet.
In Florida, the minimum allowable prison sentence a person must serve is calculated using a formula. Every possible criminal offense is given a value based on its severity and the type of crime. As one might imagine, the more counts of any one crime a person has, the more points he/she will have on their score sheet. This translates into more prison time.
Because possession of child pornography with intent to promote is a second degree felony versus a third degree felony it scores much more points than mere possession of child pornography without intent to promote. As a direct consequence, a person facing such a charge will have a much higher minimum prison score.