I recall a case of a farmer who, after repeated contacts by postal inspectors posing as purveyors of a child porn magazine, ordered three magazines featuring nude underage boys. The postal inspectors delivered the material and promptly arrested the farmer. A search of his home revealed that the only illegal material present was that which had been provided by the postal inspectors.
He was tried and convicted, but the conviction was overturned on the basis of entrapment - the legal principle that prevents prosecution when the government initiates the illegal conduct it’s prosecuting.
I’m not familiar with a Tennessee case involving BBS operators, but that’s not to say it didn’t happen.
Does the above scenario contradict what I was saying above? Isn’t entrapment a sort of “magic button” that avoids prosecution?
I don’t think it is. The conduct that “pushes” the button comes from the government, not the actor, and derives from society’s wish to avoid the repugnant state of affairs in which the government can goad a person into committing a crime they otherwise would not have committed, and then punish them for it. Entrapment wouldn’t have been available to the farmer if the government could show he was predisposed to commit a crime.
The case also raises the interesting spectre of anticipatory search warrants - a warrant that does not become valid until an event happens. There is some controversy in the legal community about their use – after all, if the government delivers illegal material to you and uses the presence of that material as probable cause grounds to support a search warrant, you could argue that they are bootstrapping: the probable cause doesn’t exist until they, the government, acts to create it.
I believed that entrapment was legal under US law. I understand that police officers can legally pose as hookers or drug dealers and can arrest you because you agreed to go with the supposed hooker or to buy the drug. Isn’t that entrapment? What it is that I’m missing?
Entrapment is a affirmative defense in every jurisdiction in the United States.
But when a police officer poses as a hooker, and then arrests a man that solicts her for prostitution, that is not entrapment.
To show entrapment, the accused must generally show by a preponderance of the evidence either that he or she would not have committed the crime but for the undue persuasion of the police officer, or that the encouragement was so great that it created a substantial risk that persons not inclined to commit the crime would commit it. The government may rebut an entrapment defense by showing that the accused had a predisposition to commit the crime. Different jurisdictions use variants of one or both of those two basic tests.
When a police officer stands on a street corner, even dressed as a prostitute, she is not offering undue persuasion. If a man approaches her and offers money in exchange for sex, he has, on his own, completed the crime of solicitation to commit prostitution. The government agent merely stood there.
If, on the other hand, she walked into a sports bar, and approached a man at random, and fondled him while suggesting sex for cash, that would constitute entrapment.
Similarly, a cop can stand on the street corner as if selling drugs, and if a car pulls up and the driver asks for a dime bag, the cop can sell it and then make the arrest. The cop cannot walk up to cars at a street light and bang on the windows, asking if the passengers are interested in a little crack.
Not to oversimplfy, but the key is asking whose idea the crime was. The government is permitted to make the criminal opportunity available; they are not permitted to suggest or encourage it to a person who is otherwise undisposed to commit it.
Thanks for the info, Bricker. So, if my friend had a kiddie porn collection, and he showed it to me, since I never owned or controlled the porn, I’m not guilty?
Nother question. If my computer is raided on an unrelated charge, and porn is discovered on it, am I responsible for proof that all models consented, are legal, etc., or is a prosecutor?
Is it one of those arrangements where they decide that that girl can’t be 18 via visual inspection?
It should be pointed out that nothing written here should be construed as legal advice. For legal advice, consult a lawyer licensed to practice in your jurisdiction.
As a general proposition, however, a fact-finder could conclude that a single instance of viewing an image in your friend’s child porn collection does not constitute constructive joint possession. But since intent may be inferred from actions, the fact-finder could also find that your viewing, and failure to report your friend, amounted to evidence that you had an agreement with your friend to possess and view the material. Indeed, federal law specifically carves out an affirmative defense - if you possess less than three such images, promptly destroy the material or promptly report it to law enforcement, you may avail yourself of that defense.
But on that record a reasonable fact-finder could reach a verdict of guilty.
Federal law (18 USC § 2257 et seq) requires that any sexually explicit material produced after 1990 and distributed interstate carry on it a statement indicating where the records are kept that show each model appearing in the material is over 18. Any person keeping or distributing material that does not meet this requirement is in violation of this law.
In short, then, if pornography is found on your computer, yes, the burden would be on you to show that the requirements of age-checking were met. Even if this requirement is met, however, you can still be guilty of possession of child porn. The classic case of Traci Lords is instructive here: undoubtedly her films had the requisite messages concerning age checking and recordkeeping. If you were in possession of one of her early films, you would not be in violation of 18 USC § 2257. You would still be in violation of 18 USC § 2252, which prohibits any depiction of a minor engaging in sexually explicit conduct.
A fact-finder can conclude the performer is underage merely by looking at the film.
Thanks, Bricker, but there are still a couple of things I don’t understand :
In the case of the prostitute, if indeed you have to sollicit the girl to be charged, why don’t the potential clients simply wait for the prostitute to sollicit him? It seems to me that logically, knowing there are undercover cops, people wouldn’t take this risk and would wait for the prostitute to propose a deal…
Concerning the drug dealer : I understand that in some cases police officers posed as drug traficants (not just street drug dealers). I assume they won’t wait at the corner of the street hoping that someone will ask them if by chance they would have 20 pounds of heroin to sell. So, what’s the deal in this case. How can they “trap” major traficants without the case being dismissed on the basis it’s entrapment?
A hijack, about your “nothing here should be construed as legal advice”. I often wondered about this kind of disclaimers. Does that applies only to lawyers? I mean, if you’re a plumber and give me a legal advice, could I sue you if you were wrong and I lost a lot of money/was jailed as a result? What if you’re a lawyer in Minnesota and give me an uncorrect legal advice about my situation in Florida? Or even give me a legal advice about french law which turn up to be wrong. Could I sue you in the US if you didn’t add a disclaimer? What if I’m say, your brother-in-law and you gave the advice informally during a family dinner?
I’m going to guess that your odds of being arrested for viewing any kind of porn site on your PC are pretty slim. Especially considering its a lot easier to go after the guy hosting the site than it is to try and prosecute peple who go to just visit.
Now if you are accused of some kind of sex crime (like propositioning minors or whatever), the cops may use the material on your PC as evidence.
I’m going to guess that your odds of being arrested for viewing any kind of porn site on your PC are pretty slim. Especially considering its a lot easier to go after the guy hosting the site than it is to try and prosecute peple who go to just visit.
Now if you are accused of some kind of sex crime (like propositioning minors or whatever), the cops may use the material on your PC as evidence.
Just to be clear here, there is no law against finding children sexually exciting. A pedophile may get their jollies looking at innocent nudist pictures of kiddies, and that may gross us out, but he has done nothing wrong. He has hurt no one and broken no laws. Anti-child porn laws are designed to protect children from exploitation, not control the minds of people whose sexual fantasies ick us out.
Thank you very much, Bricker. You’ve been very helpful. Is the government required to produce proof of the pornography? Or, if a federal investigator walks into my room, sees a collection of kiddie porn (by inspection) and hauls my computer out of there, only to discover that I’ve wired an electromagnet to my door and reduced my hard drive to digital rubble, could I be convicted on hearsay, or is actual proof of the porn required?
Your question assumes a rational approach to picking up street hookers. Given the considerable risks of the practice, I’d suggest that many of its adherents are not coolly weighing their strategy.
Waiting for the prostitute to propose the deal has a downside - not for the customer, of course, but for the hooker. If her potential John is an undercover cop, then she can be immediately arrested for solicitation. In fact, more of these type stings are done than the reverse. So working girls are aware of, and wary of, committing themselves. This creates an odd “dance” in which both parties seek to assure themselves that the other is not a cop before actually putting themselves in a position against their own penal interest. In one rather memorable case, the John sought to assure the hooker he wasn’t a cop by exposing himself to her to establish his bona fides. This resulted in the John being arrested not for solicitation, since he didn’t offer to exchange money for sex, but for a lewd act.
Undoubtedly, there are savvy street prostitution customers - and equally undoubtedly, they are not the ones getting arrested in stings. And remember, the police are aware of their limitations, and are trained in what to safely say to offer the criminal opportunity without crossing the entrapment line.
Remember that predisposition to commit the crime vitiates the entrapment defense. If the undercover police merely “put out the word” that they have 20 pounds of heroin to sell, and the buyer seeks them out to buy it, that’s not entrapment. If they travel to a stranger’s house, knock on his door, and say, “We hear you might be the kind of guy who’d like to turn a huge profit by buying this here 20 pound bag of heroin…” – that’s entrapment.
Whenever the discussion turns from the general, or hypothetical, to the specific, I try to ensure that there’s a disclaimer in place… not because any claim against me might ultimately succeed, but because the five seconds it takes to add it is well worth the hassle it maight save me in defending against an opportunistic ethics complaint.
In general, only licensed attorneys may practice law. What “practice law” means is the subject of some debate, but it generally refers to the work traditionally done by lawyers: representing another person before a tribunal, preparing documents for others that substantially affect their legal rights, and analyzing factual situations by appplying the relevant law to the facts.
Most states use the American Bar Association’s Model Rules of Professional Conduct as the basis for their own bar rules regarding the conduct of lawyers. Strict standards apply to the way in which a lawyer must deal with a client. It is in everyone’s best interest, then, if there’s no credible way someone could claim they thought they were a client, or believed you were rendering legal advice.
Advice offered by your plumber friend is safer for the plumber, since he’s not subject to the disciplinary commitee of the state bar. Of course, he may not practice law, but if he offers you an opinion, and you know he’s a plumber, you don’t have much of a leg to stand on in trying to claim you relied on his advice. If a lawyer offers you legal advice, however, in the context of an attorney-client relationship, you ought to be able to rely on it. That is the reason that bar associations strive to maintain professional standards for members of the bar - to ensure that the public can rely on a certain standard of competence when consulting a lawyer.
If a lawyer holds himself out to be qualified to give advice on Florida law, even if he’s a Minnesota lawyer, and you as his client rely on that advice to your detriment, you certainly have a malpractice cause of action against him. The same applies to French law. Of course, if he tells you, “Beats me - I know nothing about French law, but my guess is X,” then you can’t reasonably rely on it.
Hearsay is testimony about an out-of-court statement, offered in evidence to prove the truth of the matter asserted to be true in the statement. The investigator’s testimony of what was on your hard drive would not be hearsay. he would be relating what he actually saw. If the fact-finder credited his testimony, no other evidence would be necessary to convict you.
Hearsay would come into play only if the investigator never saw the porn. Perhaps your landlord saw the porn during a routine maintenance visit to your apartment, and decided to take the computer to the police, triggering your electromagnet trap. He then calls the investigator, and tells him, “I saw hundreds of child porn images on robertliguori’s PC!” You use the vat of acid on him, as described above.
At trial, the investigator could not, in order to establish that you had the illegal porn, testify that the landlord told him about the porn. That would be hearsay. But the landlord himself could testify to what he saw. That’s permissible.
And if the fact-finder believed the testimony, even without any other evidence, you could be convicted.
The electromagnet could be construed as prima facie evidence of at least tampering with evidence (who would be putting an electromagnetic device near a computer system?) The feds will most likely disable the device before putting the computer through.
But, if all they can prove is that there is something on the computer that I don’t want them to see…
Basically, the (very disturbing) message I seem to be getting is that based on the testimony of one person alone, sans evidence, I could be brought to trial, and probably convicted, given America’s opinion of kiddie porn at the present.
It has nothing to do with kiddie porn. You could be convicted solely on one person’s testimony for pretty much any crime. The fact-finder’s function is to weigh the credibility of witnesses and decide what weight to give their testimony.