Double Jeopardy in Child Pornography Cases

By March 17, 2017 May 24th, 2019 blog post, Criminal Defense Detroit MI

Double Jeopardy in Child Pornography Cases

State prosecutors and the United States Attorney’s Office assign their most aggressive attorneys to prosecute a defendant who is accused of violating child pornography laws. In a prosecutor’s zeal to prosecute these cases, defendants are often overcharged. A defendant is overcharged when he is prosecuted with a crime that is more serious 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 is charged with 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 charges. The concern with charging both for the possession and receipt is that both occur at the same time, with the same contraband, and with the same actions of the defendant. When the same action of the defendant is charged multiple times, it is 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 offence 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, a defendant can no longer be convicted of 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.

Is a Good Attorney Necessary to Defend Child Pornography Charges?

Any time the government is handling a child pornography case, there always seems to be a heightened level of aggressiveness and zealousness in the litigation. Generally, the community is interested in these cases being prosecuted fervently; however, a line has to be drawn at violating a defendant’s constitutional rights.

Before a defendant is charged with a child pornography crime, the government usually does a thorough investigation that takes a good deal of time. While the case is being investigated and the defendant is only a suspect, an aggressive and proactive lawyer may be able to intervene and either help prevent a prosecution or negotiate for lesser charges to be filed.

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 that is necessary to ensure our client’s rights are protected and they are treated fairly. The advantage to 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.

If you or someone you care about is charged with or accused of Receipt, Possession, Distribution or Production of Child Pornography, call us today at (248) 263-6800 or complete a Request for Assistance Form and an experienced lawyer will promptly contact you.

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