Georgia Child Pornography Lawyer

Georgia law refers to child pornography as a “visual medium” depicting a minor engaged in “sexually explicit conduct.” Georgia defines “visual medium” as any film, photograph, negative, slide, magazine, or other visual medium. Digital code of images that produce pictures when interpreted by software are considered a “visual medium.” The phrase “sexually explicit conduct” is generally defined as sexual intercourse, bestiality, masturbation, lewd exhibition of nudity, sadomasochistic abuse, and acts of sexual stimulation.

To be found guilty, the defendant must have known that the person in the material was a minor. A minor is someone under 18 years old. If the jury can conclude that the person depicted in the image was a minor, they can also conclude that the defendant had the same knowledge. As an experienced rape defense lawyer, we are dedicated to providing the aggressive representation needed to protect your rights and build a strong defense in these complex and sensitive cases.

Types of Child Pornography Offenses

Possession of Child Pornography in Georgia

Possession of child pornography is illegal under Georgia Code § 16-12-100(b)(8). To be found guilty, the defendant must knowingly possess the material and know that the person depicted in the material was a minor.

Distribution of Child Pornography in Georgia

Distribution of child pornography is illegal under § 16-12-100(b)(5). It is illegal to sell, distribute, give, exhibit, or possess with the intent to sell or distribute child pornography.

Production of Child Pornography in Georgia

Production (producing, directing, manufacturing, issuing, or publishing) of child pornography is illegal under § 16-12-100(b)(5), and the act of enticing or coercing a minor to create child pornography is illegal under § 16-12-100(b)(1). The state must only prove that the production of the medium was the intended motivation for the enticement, not that the medium was ever produced.

Penalties for Child Pornography Offenses

In Georgia, all child pornography offenses under § 16-12-100(b)(5) carry the same penalties. For cases involving multiple images, videos, or other materials, each material constitutes a separate offense. Because the vast majority of cases involve more than a single image, the potential penalties can add up quickly. Those found guilty of a felony for possession of child pornography “shall be punished by imprisonment for not less than five nor more than 20 years and by a fine of not more than $100,000.00.” Subsequent convictions result in life imprisonment or a split sentence of a term of imprisonment followed by probation for life with electronic monitoring.

If the minor was at least 14 years old at the time the material was created, they consented to the creation of the material, the defendant was 18 or younger at the time of the offense, and the defendant either did not distribute the material or did not sell it or distribute it for the purpose of harassing, intimidating, or embarrassing the minor, the defendant will be guilty of a misdemeanor instead of a felony. Understanding the complexities of such cases, including the child pornography sentencing guidelines, is crucial. As a skilled attorney, we are committed to navigating these legal nuances to ensure the best possible defense and outcome for our clients.

Other Related Offenses

Georgia Code § 16-12-100.1 makes it illegal to send depictions of sexual conduct to minors. People who violate this code section are found guilty of a misdemeanor of a high and aggravated nature.

Georgia Code § 16-12-100.2(d)(1) prohibits intentionally using a computer or internet service to seduce, solicit, lure, or entice a child (or person believed to be a child) to commit any illegal sexual offense. Violation leads to a felony, imprisonment for at least one but not more than 20 years, and a fine of not more than $25,000. § 16-12-100.2(e)(1) prohibits obscene Internet contact with a child. Violation leads to a felony, imprisonment for at least one and not more than 10 years, or a fine of not more than $10,000.

Our lawyers at Johnson/Citronberg employ four steps to defend against and win child pornography cases. This strategy has led to an overwhelming number of dismissals, reductions, and lenient sentences.

• Step 1: Filing motions to suppress evidence
• Step 2: Hiring a computer forensic expert & psychologist
• Step 3: Filing pre-trial motions
• Step 4: Trial preparation

Step 1: Filing Motions to Suppress Evidence

The vast majority of child pornography cases in Georgia involve law enforcement obtaining a search warrant in order to search someone’s residence and to seize their computers, hard drives, and cell phones. These search warrants must comply with the relevant laws, including the Fourth Amendment to the United States Constitution.

In order to obtain a search warrant from a judge, a law enforcement officer is required to prepare an affidavit which explains why there is probable cause to believe that evidence of a crime (i.e., images or videos of child pornography) are located at a particular residence or on a particular electronic device. A good criminal defense lawyer will review the affidavit supporting the search warrant to determine if there was probable cause for the warrant to issue. Issues like staleness, lack of a nexus, failure to allege a crime, or alleging the wrong crime can render a search warrant invalid. A criminal defense lawyer will also look to see if the law enforcement officer lied in the affidavit or failed to include facts which would cast doubt on probable cause.

There are also many other factors that could render a search warrant invalid (i.e., the judge was without jurisdiction to issue the warrant, the warrant failed to properly specify the place to be searched or the things to be searched for, the warrant listed the wrong address, etc).

If your lawyer finds an issue with the warrant, he can file a motion with the Court to suppress the evidence. If the motion to suppress is granted by the judge, the prosecution will typically have to dismiss the entire case. If there was no probable cause or if the officer lied, a lawyer can file a motion in court asking the judge to suppress the evidence. A skilled Solicitation of a Minor Lawyer can carefully review the evidence and help identify any legal missteps that could result in the dismissal of your case.

Your lawyer will also look to see if you made any statements to law enforcement. Normally, law enforcement will attempt to interview the residents of a home when it executes the search warrant. The prosecution will then use these statements at trial to establish guilt. Law enforcement, however, often runs afoul of Miranda v. Arizona.

Miranda is a case that requires law enforcement to make you aware of certain rights before questioning someone in custody (including the right to a lawyer and the right to remain silent). If your lawyer believes that your statements were obtained in violation of Miranda, he can file a motion asking the court to suppress the statements. In some cases, the only evidence tying a person to the evidence may be their interview with law enforcement. In those instances, the prosecution will likely have to dismiss the case entirely if the judge suppresses the statements.

Step 2: Hiring Experts

Any defense in a child pornography case should involve consideration of using expert witnesses. There are two primary types of witnesses that can greatly assist the defense:

Computer Forensic Experts. When law enforcement searches a computer or cell phone, they are simply looking for illegal videos and images along with search terms indicative of child pornography. To accomplish this, law enforcement typically uses software such as EnCase or Cellebrite. These searches, however, only tell part of the story, and they often miss critical facts which can establish complete legal defenses.

An independent computer forensic expert’s review of a computer or cell phone is focused on finding potential defenses and casting doubt on the prosecution’s expert’s findings. A defense expert can help to establish the following defenses:

• Deleted, cache, or temporary internet files
• Someone else downloaded the image or video
• The computer is infected with a virus or malware
• No actual image or video
• The person in the image is not a minor
• Lack of venue
• Did not know distribution was occurring

Another common defense that an expert can help with is when the download was unintentional. Many child pornography cases involve P2P programs such as BitTorrent, Ares, or Kazaa. These programs are designed so that a user may accidentally download child pornography when that was never the user’s intention. While law enforcement is only concerned with whether child pornography is somewhere on the machine, a defense expert can determine if the download was unintentional by looking at the original file name, whether the file was ever opened, and whether the user tried to delete the file.

Even if a case does not proceed to trial, defense experts can be incredibly useful for negotiating a deal with prosecution or receiving a lenient sentence from the judge. The prosecution will often misstate the number of images, the location of the images, the length of video files, and how long the alleged conduct was going on. A defense expert can set the record straight and show that the facts are not nearly as bad as the prosecution portrays. There are various defenses to child pornography charges that can be raised, including challenging the evidence, disputing the defendant’s intent, or arguing that the defendant was unaware of the nature of the material. An experienced defense attorney can help identify the best defense strategy based on the specifics of the case.

Psychological Experts. It often makes sense for an individual accused of a child pornography offense to undergo a psychosexual evaluation. This can be helpful for a couple of reasons. First, the psychosexual may show that the person has no sexual interest in children, thereby helping to establish his innocence. Such testimony in conjunction with the testimony from a computer forensic expert is powerful evidence.

Second, a psychological expert can testify that a person is either not a risk to the community, or in the alternative, that he is a low risk to the community. Such testimony is often necessary in order to work out a deal with prosecutors to a reduced charge or to receive a lenient sentence.

Step 3: Filing Pre-Trial Motions

One area of criminal defense that is often overlooked involves filing pre-trial motions or motions in limine. These motions typically seek to limit the evidence that the prosecution can introduce into evidence at trial. While in Georgia every case is different, some of the most common pre-trial motions in child pornography cases are the following:

• Challenging the prosecution’s expert. The prosecution’s forensic expert is usually critical to the prosecution’s case. Prior to trial, the prosecution will provide the defense with an expert report detailing their findings and opinions. A good defense lawyer will file a motion arguing that the expert’s testimony should be excluded from trial because the expert is not qualified or because the expert’s opinions are not reliable.

• Limiting the testimony of the prosecution’s expert. The prosecution’s expert is likely skilled in testifying and will attempt to testify beyond their area of expertise. A motion seeking to limit their testimony to specific facts is often necessary to prevent them from offering unqualified expert testimony.

• Limiting the number of images or videos. The prosecution will likely attempt to introduce numerous images into evidence. The cumulative effect of numerous images can be inflammatory and prejudicial in the eyes of the jury. A defense lawyer should file a motion seeking to limit the number of images to just a handful.

• Excluding prior bad acts. The prosecution will attempt to introduce any prior bad act which may help establish that he knowingly possessed the child pornography at issue. This may come in many forms, including a prior conviction or testimony from a former girlfriend. A defense lawyer should file a motion prior to trial arguing that such evidence is irrelevant and prejudicial and should therefore be kept out of the trial.

Step 4: Trial Preparation

Trial preparation is critical to successfully winning an acquittal at trial. In child pornography cases, there are a number of special considerations that a defense lawyer to address prior to trial:

• Preparing to cross-examine the prosecution’s expert. The defense lawyer will likely need to consult with an independent computer forensic expert to adequately cross-examine the prosecution’s expert. With the help of an independent expert, a defense lawyer can create a list of questions to cast doubt on the testimony of the prosecution’s expert.

• Preparing the defense’s expert witness. The defense lawyer needs to prepare the defense’s expert for a detailed but focused direct examination. The examination needs to be tailored to the defense’s specific theory of defense while explaining why the prosecution’s expert is wrong.
• Character witnesses. The defense lawyer should line up a number of character witnesses who can testify that the defendant has no affinity towards children. These witnesses can include the defendant’s wife, former girlfriends, children, or any witness who can provide insight into the matter.

Our Georgia criminal defense lawyers fully understand how to defend against child pornography charges. We have won dismissals, obtained reductions, and received sentences of straight probation for individuals charged with child pornography offenses across Georgia.

If you or someone you know is facing a child pornography charge in Georgia, contact us now for immediate help.

People accused of child pornography offenses in Georgia often want to better understand the law, possible penalties, registry consequences, and related court procedures. These Georgia legal resources may help:

• Georgia Code § 42-1-12 – Sex Offender Registry Requirements
• Georgia Bureau of Investigation – Sex Offender Registry