U.S. v. King, 78 M.J. 218

Core Criminal Law Subjects: Crimes: Article 134 -- Child Pornography (para 68b, MCM, *** Post-2012 Amendment) Pre-2019 offenses

1. in order to convict an accused for viewing child pornography under Article 134, UCMJ, the prosecution must prove: (1) that the accused knowingly and wrongfully viewed child pornography; and (2) that under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces
2. direct evidence of the offense of viewing child pornography will be rare because the offense is usually committed in private; as a result, the government often will have to rely on circumstantial evidence in attempting to prove the offense
3. in this case, although forensics failed to conclusively determine that appellant actually saw the three charged images because the images were located in his computer’s unallocated space and browser cache as opposed to being located the computer’s logical space, the circumstantial evidence of viewing child pornography was legally sufficient where appellant password-protected his electronic devices, including his computers, where a search of his home desktop computer revealed thousands of offensive photos, where appellant searched for images in Google and Bing using terms that were indicative of child pornography, and where he freely admitted that he viewed “thrilling” images of nude children
4. while evidence found in an area of the computer with more indicia of user control (e.g., a user-created folder) carries more weight than evidence found in a cache or in unallocated space, evidence that a person has sought out or searched for child pornography on the internet and has a computer containing child pornography images, whether in the hard drive, cache, or unallocated space, can count as circumstantial evidence that a person has knowingly viewed child pornography; what weight the factfinder ascribes to that evidence is for the factfinder alone to determine
5. possession of child pornography differs in material ways from mere viewing; in this case, where appellant was charged with viewing child pornography, the government was not required to prove dominion or control, and as such, the presence of the charged images in inaccessible space takes on less significance; while an accused’s inability to access data may prove a fatal flaw in a possession case, it does not similarly cripple a viewing charge, which only requires that, at some point, the accused knowingly and wrongfully viewed the image

Core Criminal Law Subjects: Evidence: Generally

1. the term “reasonable doubt” does not mean that the evidence must be free from any conflict or that the trier of fact may not draw reasonable inferences from the evidence presented
2. the government is free to meet its burden of proof with circumstantial evidence; the government’s ability to rely on circumstantial evidence is especially important in cases where the offense is normally committed in private

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Proof, persuasion

1. the term “reasonable doubt” does not mean that the evidence must be free from any conflict or that the trier of fact may not draw reasonable inferences from the evidence presented
2. the government is free to meet its burden of proof with circumstantial evidence; the government’s ability to rely on circumstantial evidence is especially important in cases where the offense is normally committed in private

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Proof, persuasion

1. an appellate court reviews questions of legal sufficiency de novo, and the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; the legal sufficiency assessment draws every reasonable inference from the evidence of record in favor of the prosecution; as such, the standard for legal sufficiency involves a very low threshold to sustain a conviction; the criterion thus impinges upon jury discretion only to the extent necessary to guarantee the fundamental protection of due process of law
2. in determining whether any rational trier of fact could have determined that the evidence at trial established guilt beyond a reasonable doubt, the term “reasonable doubt” does not mean that the evidence must be free from any conflict or that the trier of fact may not draw reasonable inferences from the evidence presented
3. the government is free to meet its burden of proof with circumstantial evidence; the government’s ability to rely on circumstantial evidence is especially important in cases where the offense is normally committed in private

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews questions of legal sufficiency de novo, and the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; the legal sufficiency assessment draws every reasonable inference from the evidence of record in favor of the prosecution; as such, the standard for legal sufficiency involves a very low threshold to sustain a conviction; the criterion thus impinges upon jury discretion only to the extent necessary to guarantee the fundamental protection of due process of law
2. in determining whether any rational trier of fact could have determined that the evidence at trial established guilt beyond a reasonable doubt, the term “reasonable doubt” does not mean that the evidence must be free from any conflict or that the trier of fact may not draw reasonable inferences from the evidence presented
3. the government is free to meet its burden of proof with circumstantial evidence; the government’s ability to rely on circumstantial evidence is especially important in cases where the offense is normally committed in private