Question: How can Wisconsin investigators prove that a person knowingly possessed illegal pornographic material, such as child pornography?

Answer: If you’re accused of knowingly possessing something like child pornography, there are actually two separate things that you need to look at for the word “knowing.” First, did you actually know that you had the item—photograph or a file on a computer, for example. And the second thing is did you know that you had was actually child pornography, for example.

In most current cases, the allegations involve computer files. I think everyone can understand that it’s possible to have a computer in your possession and not know every single file that’s on the computer. So it’s not that easy for the police to prove knowing possession by just showing that you possessed the actual computer; they have to go beyond that to show that you knew that you had those specific files.

So to do that there are several different methods that police can use. Sometimes, there are undercover officers online and people are caught sharing files with undercover officers online over social media, over email. Depending on the context, that could be sufficient to show knowing possession. Otherwise if the police recover a computer, they can employ various methods to find proof of knowledge on the computer itself. They can look at who had access to the computer. So, for example, if the computer is password protected and nobody else had the password, that could be a problem. They can look in the computer at the history of search terms in your web browsers, they can look at the files themselves, see when they were downloaded, when they were accessed, how they were categorized, if they’ve been modified in some way, where they’re saved on the computer. So combining all of that information with the context of who owns the computer and who has access to the computer, they can usually draw some conclusions about who downloaded or saved or accessed the file.

And then the final thing is that the police will almost always try to obtain a confession, which is probably the easiest way for them to show knowing possession is if they have a statement from the person saying that they knew it was there. The police will typically try to do this in a non-threatening way. They’ll do it before they place you under arrest, they’ll try to downplay the seriousness of the situation; they’ll try to be as friendly as possible. But you shouldn’t misunderstand the situation. They are certainly trying to get a confession, even if they have not arrested you yet. So if you’re ever approached with this type of questioning, you should tell the investigator you will only speak with a lawyer present and refuse to answer any other questions no matter what.

So that covers the first issue. Assuming you knew you had the files, then the second issue is whether you knew or should have known that the files contained actual child pornography or illegal pornography of some type. This is actually a lot trickier than it may seem. There can be a lot of disagreement over, first of all, over whether the person shown in an image or in a file is actually a child and there could also be a lot of disagreement over whether or not the image is actual pornography. The law in Wisconsin is clear that to qualify as child pornography an image has to depict a person under the age of 18 and it has to depict more than just nudity; there has to be some other aspect present, so that gets very tricky.

Clearly the issues involved in this type of case can be very complicated and the consequences very severe. So if you or someone you know is facing allegations of this type, you should contact a qualified attorney as soon as possible.

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