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Proof of child porn felonies faces several legal challenges

The police generally tend to push the boundaries of constitutional law when they arrest persons for what they find on their home computers. A person normally has a broad right to privacy with respect to photos and reading material possessed in his or her own home. The person should not have to fear governmental intrusion for possessing potentially illegal viewing material that is normally in a broad category protected by the First Amendment. Nonetheless, New Hampshire police made another arrest for alleged child pornography felonies recently when they charged an Army recruiter, who has a record of commendable service, with possessing child pornography on his home computer.

The National Center for Missing and Exploited Children apparently follows the activities of individuals on the internet. It allegedly suspected that the defendant was downloading illegal materials and reported that to the New Hampshire Attorney General's Office. The investigation led up to the defendant's arrest, despite the fact that he never contacted or met with a minor, nor did he make the alleged photos in question.  

There are numerous potential issues, including whether there was sufficient probable cause established to justify issuing a search warrant. That means that material being described as 'questionable,' for example, would not be specific enough to indicate a crime. Furthermore, others may have accessed the defendant's computer, with or without permission.

The agency reported only that a certain computer was being used by someone. The specific identity of the perpetrator would still be unknown and unproved. The material involved must also qualify as 'child porn," which in these days is always debatable considering the huge volume of borderline photos and related materials that appear online.

In addition, the prosecution must prove such felonies under New Hampshire law by proving beyond a reasonable doubt that the defendant acted with criminal and knowing intent. However, the mere fact of such material on his hard drive does not prove that he knew they were there or that he viewed them. Finally, the benefit of any doubt should go to this defendant, who is the recipient of numerous commendations for serving his country in several deployments to Iraq and Afghanistan.

Source: armytimes.com, "Army recruiter in New Hampshire faces child-porn charge", Kevin Lilley, April 13, 2016

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