Is there Double Jeopardy in Child Pornography Cases?

State and federal prosecutors aggressively prosecute child pornography and CSAM charges. It takes a seasoned, fearless lawyer to protect the accused’s rights.

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Child Pornography Prosecutions

State prosecutors and the United States Attorney’s Office assign their most aggressive attorneys to prosecute a defendant accused of violating child pornography laws. In a prosecutor’s zeal to prosecute these cases, they often overcharge defendants. Overcharging occurs when a defendant is prosecuted for a more severe crime than the evidence justifies. Double jeopardy in child pornography cases becomes a concern when a charge or indictment includes multiple counts for the same conduct. The best defense to an aggressive prosecution is an even more aggressive and effective defense.

In almost all cases where a defendant faces charges for activities involving child sexually abusive materials, the government will charge both Receipt of Child Pornography and Possession of Child Pornography. These charges may or may not be in conjunction with other crimes. The concern with bringing both possession and receipt charges is that both occur simultaneously, with the same contraband and the same actions of the defendant. When multiple charges stem from the same action of the defendant, there might be a violation of the Double Jeopardy Clause contained in the Fifth Amendment to the United States Constitution. The pertinent portion of the Fifth Amendment says, “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .”

In a relatively recent decision in the 6th Circuit Court of Appeals, the court ruled that convictions for both Receipt and Possession violate the Double Jeopardy Clause. Specifically, the court ruled:

“Convictions for both knowingly possessing child pornography and knowingly receiving the same child pornography constitute[s] multiple punishments for the same conduct” in violation of the Double Jeopardy Clause. United States v. Gray, 641 F. App’x 462, 465 (6th Cir. 2016).

Based on the ruling in Gray, the prosecutor cannot charge the defendant with both possession and receipt for the same, identical conduct. This case also applies to prosecutions in state courts because state prosecutions cannot violate the federal Constitution.

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Is a Good Attorney Necessary to Defend Child Pornography Charges?

Whenever the government handles a child pornography case, there seems to be a heightened level of aggressiveness and zealousness in the litigation. Generally, the community demands vigorous prosecutions and harsh sentences; however, courts must draw the line at violating a defendant’s constitutional rights. In most of these matters, the U.S. attorney’s office and local prosecutors assign their most experienced and ardent attorneys to prosecute these cases.

Before the government charges a defendant with a child pornography crime, the U.S. Attorney’s Office usually does a thorough, lengthy investigation. An aggressive and proactive lawyer may intervene and prevent a felony or negotiate for lesser charges.

Michigan Criminal Defense Attorney

The Defense Team with LEWIS & DICKSTEIN, P.L.L.C. has decades of experience defending these and similar charges in state and federal court. We have the knowledge, skill, and tireless dedication necessary to ensure our client’s rights are protected and treated fairly. The advantage of hiring a law firm is that instead of having one lawyer, clients of LEWIS & DICKSTEIN, P.L.L.C. get a team of lawyers collaborating on ways to gain every possible advantage in the case.

Call us today if you or someone you care about is charged with or accused of Receipt, Possession, Distribution, or Production of Child Pornography. We will take the time to talk with you, answer your questions, and address your concerns. We will find a way to help you.

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.

We will find a way to help you and, most importantly,
we are not afraid to win!

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