How Much Evidence Is Enough For a Child Porn Conviction?

It's a classic defense: The child porn on the computer wasn't mine, it belongs to my roommate ... or, or my girlfriend!

A jury didn't buy this line when James William Smith's counsel sold it in his criminal trial, but his conviction was overturned for lack of evidence. Then the Fifth Circuit overturned the lower court, affirming the jury's conviction.

How much is enough evidence to sustain child porn charges?

Child Porn Possession Charges

Smith was charged and convicted under 18 U.S.C. § 2252A(a)(5)(B) -- knowing possession of child pornography. After his conviction, Smith sought a new trial in 2012, according to The Associated Press, but may have been delighted to have the federal district court throw out his conviction.

This acquittal was accomplished on the strength of the district court's granting Smith's Rule 29 motion for acquittal, citing a lack of evidence necessary to prove Smith knowingly possessed the alleged child pornography.

In order to satisfy the elements of his child porn charge, a rational juror must have been able to find beyond a reasonable doubt that:

• Smith knew the files on the computer were child porn and
• That Smith possessed the child porn.

Smith maintains that the trial jury did not have sufficient evidence for either of these elements, but the Fifth Circuit disagreed.

Possession is Nine-Tenths of the Law

Possession in child porn cases need not be actual possession of the computer that contains the files. The court recognized that in other Circuits, it was enough to simply have willfully downloaded the child porn files to establish possession.

In Smith's case there were three possible suspects: his roommate, his girlfriend, and himself, all of which had access to the computer. Smith did not testify, but his girlfriend provided him an alibi for the time in which the files were downloaded. His roommate denied having downloaded the files but had no alibi for the dates of the downloads.

So a jury just needed to believe the prosecution and not Smith's alibi, which seems possible. Courts are mindful to give deference to jury verdicts because the jury is in a rare position to judge credibility.

Remember, the courts don't want to retry the case from the bench, it's just enough to know that a reasonable jury could have reached the guilty verdict. And while it's possible that the jury could have believed that Smith's roommate was actually the child porn culprit, it was not unreasonable that they did not.

The Fifth Circuit came to the same conclusion in a related case, U.S. v. Woerner in 2013.

Bottom Line

The evidence was sufficient for a jury to find that Smith was guilty, despite some other possible theories which they ignored. Juries are allowed to pick and choose which evidence they credit in making their determination of guilt, and the courts are fairly deferential to their choices.

Related Resources:

• Man wants new trial in child porn case (Jackson's WAPT)
• Supreme Court to Hear Child Porn Restitution Case (FindLaw's U.S. 5th Circuit Blog)
• Catfishing Teen's Child Porn Conviction Reversed (FindLaw's U.S. 4th Circuit Blog)
• Child Porn and P2P File-Sharing Program: Just Like Facebook? (FindLaw's U.S. 6th Circuit Blog)