Basic Facts: Defendant is charged with possession of child pornography. Indictment says Defendant possessed "visual material that depicted a child under than the age of 18" Defendant complains that there are several different visual materials containing depictions of individuals who appear less than 18. Defendant says lack of a precise description of the photo deprives him of ability to fully and adequately present a defense.

It seems absurd that for notice purposes the indictment must specifically describe a image of child pornography. This is the first child pornography case where we have had someone file a motion like this. Does anybody have any experience on the issue they could share before I start briefing the issue?

I think the language of your indictment should be sufficient to apprise the defendant of what he is charged with and how to defend the case. The indictment tracks the language of the statute and identifies the image using the statutory language. The only case I know of that may offer some guidance is Jessep 281 S.W.3d 675. That would be the starting point.

The actual issue that may arise is whether the State will be required to make an election as to which image forms the basis for the violation. If the defendant requests the State to make such an election that should be done after the State's case in chief and then that would subject the defendant to additional prosecution for the non-elected images.

Identify it by its forensic hash value, nothing more precise than that.

We've used language like this to get around that issue:

quote:

And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present in and to said Court that on or about the ____day of _____, 20___, in said county and state, and before the presentment of this indictment, that the said John Q. Defendant did then and there intentionally or knowingly possess visual material, to wit: a file named [insert filename here], that visually depicted, and which the defendant knew visually depicted a child who was younger than 18 years of age at the time the image of the child was made, engaging in sexual conduct, to wit: lewd exhibition of the genitals

The identifying of a particular file name--or hash value as Stacey suggested--easily gets you around that argument.