FIFTH CIRCUIT FINDS INSUFFICIENT EVIDENCE FOR CHILD PORNOGRAPHY CONVICTION

The Fifth Circuit Court of Appeals reversed due to insufficient evidence that the defendant, Keith Moreland, knew that photographs of child pornography were located on his computer.

Keith’s wife Deana found an internet site with child pornography in the history of two computers that were kept in their living room and called the sheriff’s department.The only people with access to the computers were the Morelands and Keith’s terminally ill father, George. All users used the same password to log-on the the computers.

A police investigator found 112 picture which were possibly child pornography in the slack space (or orphan files) of the hard drive. These are files that have been deleted from the computer but are still available. The origin and the date of the download of files in the slack space are generally impossible to determine, Matthew Manley, a local police officer inspected the computers and testified about what he found. He was not offered as an expert in either computers or child pornography. He was unable to determine when the pictures were downloaded, where they were downloaded from or who downloaded them. Nor could he testify as whether the pictures were pornography or not.

The Fifth Circuit concluded

that the evidence was insufficient to support a finding beyond a reasonable doubt that Keith knowingly possessed the images in the computers because the evidence does not sufficiently demonstrate that a rational jury could find beyond a reasonable doubt that Keith had knowledge that the images were in the computers or that Keith had the requisite knowledge and ability to access them and to exercise dominion or control over them.

As a result the court reversed the conviction finding that there was insufficient evidence that Keith either knew that there was pornography on the computer or that he had the technical ability to retrieve the pictures. Both are necessary to convict one of possession of child pornography.