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Handbook Cover for Treatise on Internet Sex Crimes

Chapter 4: Trial Defenses


Mistaken Identity

OVERVIEW

Mistaken identity is a common defense in child pornography cases. This defense seeks to demonstrate that the defendant was not the person who possessed/received/distributed the child pornography material in question. For example, if they were logged onto a public computer and someone else used their account to access such material, if someone else used the defendant’s private computer to access such material, or even if someone used the defendant’s IP address or hacked into their computer, a defendant’s innocence can be proven. 

When presenting a mistaken identity defense, there must be solid evidence and credibility for the defendant’s alibi or testimony about the possibility that they are not the person responsible. The absence of compelling evidence supporting the defense’s claims often leads to the jury’s rejection of such defenses.

CONSTRUCTIVE POSSESSION

Possession can be either actual, meaning the defendant “knowingly has direct physical control over a thing at a given time,”[1] or constructive, which is “the ownership, dominion or control over an illegal item itself or dominion or control over the premises in which the item is found.”[2] Constructive possession can be proven by circumstantial evidence, such as when a defendant is the only occupant of the place in which the contraband is found. However, if the defendant occupies a residence with one or more other people, such an inference cannot support a conviction.[3] In this case, additional evidence must be presented to prove a defendant’s knowing dominion or control of the contraband.[4]

Ultimately, a jury is free to assess the credibility of the evidence presented and reject a defendant’s theory that they were not the one responsible for the child pornography.


[1]  United States v. Munoz, 150 F.3d 401, 416 (5th Cir. 1998)

[2] United States v. De Leon, 170 F.3d 494, 496 (5th Cir. 1999)

[3] United States v. Crain, 33 F.3d 480, 486 (5th Cir. 1994); United States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994); United States v. Ford, 993 F.2d 249, 252 (D.C. Cir. 1993); United States v. Sullivan, 919 F.2d 1403, 1431 (10th Cir. 1990); United States v. Reese, 775 F.2d 1066, 1073 (9th Cir. 1985)

[4] United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993)

SUCCESSFUL MISTAKEN IDENTITY CASES

United States v. Moreland, 665 F.3d 137, 152 (5th Cir. 2011): The defendant shared a residency with his wife and father, all of whom had free access to the two computers in the house. While the defendant was often logged onto the computers, anyone could have accessed the Internet from his account. Although the defendant’s father passed away soon after the material was found, multiple people testified to the likelihood that he was the one who possessed the material. “In the instant case, the digital images were not in plain view, but were in the computers’ unallocated slack spaces, which are accessible only to a knowledgeable person using special computer software, and there was no circumstantial indicium that established that Keith knew of the images or had the ability to access them.”

United States v. Lowe, 795 F.3d 519, 524 (6th Cir. 2015)

United States v. Oufnac, 449 Fed.Appx. 472 (6th Cir.2011) (Unpublished Opinion)

UNSUCCESSFUL MISTAKEN IDENTITY CASES

United States v. Lampley, 781 F. App’x 282, 284 (5th Cir. 2019): defendant claimed that his laptop and cellphone had been hacked, and that the content was downloaded by a hacker using a “remote-access Trojan virus.” However, officers did not find a virus that was capable of doing so on the defendant’s computer, and found no virus on his cellphone. There was also no evidence that someone else had used the defendant’s cellphone, and the agent testified that he had never come across a situation in which a hacker downloaded child pornography to another’s device, so the jury was not required to accept the defendant’s claim that he was hacked given the lack of evidence. 

United States v. Smith, 739 F.3d 843, 845 (5th Cir. 2014): The defendant shared a residency and computer access with two other people, but one’s employment records eliminated them as a suspect. The other denied any knowledge of the files or associated software, but had regular access to the computer, no alibi, and was likely capable of using the software to download the files. The defendant’s girlfriend and parents all testified that the defendant was at his parent’s house on the dates in question. However, the defendant’s alibi had inconsistencies, and the jury assessed the credibility of the testimony given at trial and rendered a guilty verdict.

United States v. Manning, 738 F.3d 937, 945 (8th Cir. 2014): The defendant claimed that someone used a computer program to plant child pornography and chat conversations on his computer to frame him. However, agents identified the IP address listed in the defendant’s name offering child pornography, the defendant owned the computer alleged to have downloaded the material, access to the computer was password-protected, and the computer’s username matched that used for the chats. Chats also confirmed the defendant’s height, weight, age, and state of residence. The jury rejected the defendant’s theory that someone else was responsible via “remote access.”

United States v. Shelabarger, 770 F.3d 714, 717 (8th Cir. 2014): The defendant claimed that his nephew or a previous owner of the laptop could have been responsible for the files. However, the defendant owned the laptop containing the material, link files on the SD cards found in the defendant’s room showed that some of the files had been viewed on his laptop, and witness testimony confirmed that the box in which the SD cards were found was the defendant’s. The jury rejected the defendants theory that the material was planted. 

United States v. Nichols, 527 F. App’x 344, 347 (6th Cir. 2013): The defendant claimed that his identity as the photographer of child pornographic images could not be established because multiple people had access to the computers, the victim was asleep and thus could not know who took the photographs, and that the victim and her mother had discussed her testimony prior to trial. However, the victim testified to the defendant taking photographs of her awake, the photographs were not located on the shared computer, but rather on disks found in a bag in the defendant’s closet, and testimony confirmed that the disks were the defendant’s. The jury found this evidence to sufficiently show that the defendant was the person who took the photographs. 

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