We found close to 200 separate images of child porn on a defendant's computer. In most of the cases, there is no question that the children in the photos are underage. Charging the defendant with one count of child porn does not seem to do justice to this defendant's conduct. We would like to charge multiple counts. This raises a couple of interesting questions, however. Does the possession of each individual photo constitute a separate offense? I think it does, but would welcome other opinions. If so, when charging multiple counts, how do you identify which count goes with which photo? We don't want to attach a copy of the photo for obvious reasons. Is it necessary to describe the photo? Assume that all photos were downloaded on the same day. How do we get past a motion to quash that alleges that the indictment is too vague. Thanks.

We have taken the position that each separate image is a separate crime. I think you are safe with that approach. Check out 958 SW3d 854.

It is interesting in writing an indictment when you have to designate the image. Sometimes we provide a description (e.g. child in blue dress on top of male). If it is a digital image, there is always a file name on the hard drive associated with each image, and each file name is unique (e.g. child.jpg). You could refer to that file name in the indictment for identifying the image.

It would be nice if the judge had the option of stacking the sentences from multiple counts of child pornography arising from a single trial (like we get for other sex offenses). Perhaps a legislative possibility?

[This message was edited by John Bradley on 12-02-03 at .]

I charged separate offenses in the cases that I have indicted and the issue never came up on appeal, however, I was concerned at the time that the definition of "visual material" was vaguely worded when you are dealing with multiple images or files on a single disk. If you look at the definition, it defines visual material on a computer as "any disk, diskette or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method." In other words, the disk itself (not the individual image) is defined as the visual material under the first part of the definition. If you can prove that the images were downloaded from the internet I suppose it's clear that each picture is an "image." However, if you can't show that the images were downloaded from the internet, do multiple images on one disk or diskette constitute one unit of "visual material"? It would appear to be so, even though I don't think that is the intent of the statute. So if a guy has not printed out the images and has them all stored on one internal hard disk on his computer, you better be able to show that the images were downloaded from the internet or you face the problem with the wording of this statute.

Good idea on the stacking, John. While we are at it why don't we amend the statute to take out the problem I identified above by adding the words to the definition, "any image stored on any disk, diskette, or other physical medium that can be displayed on a computer or other video screen." Shouldn't the law also cover possession of an image printed on a computer printer? Does it? What if the guy has tossed his computer or destroyed the disk but has a collection of printed images? Does it violate the statute? This law could use some clean-up, in my humble opinion.

[This message was edited by Tim Cole on 12-02-03 at .]

In charging these cases, I think we need to be as specific as possible. As Mr. Bradley pointed out, each image can be a seperate unit of prosecution. I think you could run into some problems if you do not in some way identify which image you are relying on for indictment purposes. In my experience, these perpetrators have a ton of images and getting the under age images is no problems. On the ones that are close, we have someone from the Children's Hospital Care team review them and put an affidavit in the file. Now as for charging, I try to identify the image as much as possible, including using the name of the image. In few occaisions where we didn't include the name in the indictment, in open court (this is usually with open please of guilty) we state that we are relying on the following image and name it and then offer it (followed by a request to seal the evidence). I also like to use multiple counts and in the situation where a perpetrator has the material on both a computer and removeable media such as floppies and CDroms, I will indict seperately. If you are interested email and I can send you some of my indictments.

Thanks everyone. These suggestions were all enormously helpful. Our defendant will be indicted today on 17 separate counts of child porn. He is also charged with an indecency with a child which wasn't very strong, but with the evidence of his possession of child porn, his protestations that his "touchings" of the little girl were accidental aren't very credible. Thanks again.

Given the problems with getting a stacked sentence, have you considered calling your local, friendly U.S. Attorney's Office and turning the case over to them? Under the Sentencing Guidelines, they may be able to get more time.

Larry Cunningham
Assistant Professor of Law
Director of the Criminal Prosecution Clinic

Texas Tech University School of Law

We have a case that the Feds refused. We are a small jurisdiction and I need to know how to prove the age of the child.Are there experts? Need guidance from some of you who seem to do this regularly. What a sad world.Thanks

Talk with Jamye Coffman, M.D. at Cook Children's Medical Center, the number is (817)885-3953. I had a child porn case and I had her review the images to testify to the age of the children contained in the images.

I can echo MavsFan...Jayme Coffman makes a great witness, her credentials are impeccable and the juries love her. One small correction: the area code for her work has changed. Email me and I can put you in touch with her.

The doctor is also a fine witness in child abuse cases.

A big "ditto" for Dr. Coffman! She's a winner.