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JPEsq.
JPEsq., Criminal Defense Lawyer
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Im writing a fictional book about an 18-year-old girl named

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I’m writing a fictional book about an 18-year-old girl named Tera whose father was arrested for possession of child pornography. Tera, believing her father to be innocent, hired a defense attorney who specializes in sex crimes. Later in the book, her dad’s prosecuting attorney reveals to Tera that her dad (who is an artist) wrote and illustrated some underground comic books that show Tera as a child in sexual situations with men.

Q: The attorney doesn’t necessarily need Tera’s testimony to convict her father. He has ample evidence already. But he knows she’s funding her father’s defense and so he’s showing the comics to her as a sort of courtesy--so she knows what kind of man she’s trying to help. Does that sound like a realistic reason for why an attorney would reveal these comics to her? Or would he be trying to get some kind of testimony from her, even though the charge against her father is possession, not molestation?

Q: The father was arrested for possession of child porn. Now, with these comic books (they’re drawings, but they’re obviously obscene), could the prosecutor add on the charge of trafficking child pornography? Would he seek to do that on his own, or would some other force need to make that decision?

Q: I’m trying to think of how the prosecuting attorney would present these comics to Tera. Would most attorneys call in a psychiatrist or psychologist to present the comic books? Or would they try to tactfully do it themselves?

Thank you in advance for your help.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  JPEsq. replied 1 year ago.

Usually, in my experience, the prosecuting attorneys would be very wary of just reaching out to a family member who is not a victim of the charged conduct. Not that it could not happen, but it would certainly be unusual.

 

A more realistic scenario would be that the prosecutor contacts Tera in conjunction with the police department in order to interview her as a potential victim of molestation. There is no statute of limitations of child molestation, and the police officer and prosecutor may ask her if her father ever molested her, based on the depictions in his old comics. Once contact is established for a legitimate reason, other than to sabotage the defense fund, it would be more likely (in my experience) that the prosecutor would engage in conversation with the family of the accused. She would be there as a potential victim and witness to uncharged conduct.

 

Normally, the police officer would present the information to Tera and ask if she had been molested, but in some cases the prosecutor might be present.

 

One other issue to keep in mind is that if the comics were merely drawings (simulated pornography) that did not become illegal until 2003. It was illegal once before, in 1996 (Child Pornography Prevention Act of 1996 made simulated child porn illegal, but then was found Unconstitutional). It is not illegal under 18 USC 1466A. This an ongoing issue, and the law has been challenged several times. So far, it has stood.

 

Finally, this is a Federal law. So it would have a different prosecuting attorney than a State court charge of possession of child pornography (unless your character is being charged under the Federal law in that case also). This changes the dynamic of your story, so it is something to be aware of (not only is the prosecutor different, the FBI would be investigating instead of a local police officer).

JPEsq., Criminal Defense Lawyer
Category: Criminal Law
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Experience: Experience as Criminal Defense Attorney and criminal law professor
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Customer: replied 1 year ago.

Thank you again! You’ve been very helpful.


 


I think I’m going to adjust my timeline slightly to avoid the whole federal/non-federal thing. Your info helped a lot!


 


So let me just ask a few more things:


 


The comic book evidence wasn’t uncovered until about a month after the arrest. Would it have been the investigating police who uncovered it, or would that have been uncovered by the attorney and his team? Is the local police considered part of the prosecuting attorney’s team, or would he employ his own team of experts? I guess I need to know whether the prosecuting attorney would be working with the local police to interview Tera (trying to see if she was molested), or would he have an investigator in his own employ? If it’s local police, would the interview be done at the police station, in her home, or at the attorney’s office? You suggested that the prosecutor might interview her without the police. How realistic is that?

Expert:  JPEsq. replied 1 year ago.

The local prosecutor would pretty much use whatever police force made the arrest as his team. At the trial, the lead investigator is usually at the trial table with the prosecutor. The comic books would probably be uncovered by the police, unless they were just happened upon by the prosecutor or he went out of his way for some reason. Usually, the police investigate and the prosecutor just takes that information and charges.

For the interview with Tera, it would probably be a local police officer (City, State, County- depending on who arrested him). Sometimes it is just a regular cop, they usually have special training (the program I believe most cops go through is called "Finding Words" which is a program that teaches them how to talk to children of sexual crimes without planting ideas in their heads).

It is less realistic that the prosecutor would talk to a potential victim himself. It would be very unusual unless she had already given a statement. A more realistic scenario would be that the police tried to talk to her but she was not cooperative, and then the prosecutor took a deposition from her as part of the charge- that could happen and does often.

Tera's father's attorney does not represent Tera, so they would not contact him, and frankly, he would have a conflict of interest, so he would not be able to represent her. So he would not have anything to do with any interview of Tera. In fact, when a 3rd party is paying for the defense, the attorney usually makes it very clear that they work for the accused, not the person paying the bills.

Customer: replied 1 year ago.
This is my last question...

If Tera's dad made money from selling the comics, would it be considered a federal crime? (whether the prosecuting attorney chooses to pursue it or not, and if it happened before 2003)

Thank you again. If I need your expert advice, down the road, what's the best way to ask for you?
Expert:  JPEsq. replied 1 year ago.

It may not have been a crime at all prior to 2003 (debatable, since it was a drawing, but of an actual person, thus not truly victimless). Post 2003, it would have been a crime of trafficking whether he made money from it or not.

 

You can get me through this link in the future: http://www.justanswer.com/law/expert-jpesq/

 

or just put "For JPEsq" in your question.

JPEsq., Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 5104
Experience: Experience as Criminal Defense Attorney and criminal law professor
JPEsq. and 5 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

Once again, this for the book I'm writing.


You said that "It is less realistic that the prosecutor would talk to a potential victim himself. It would be very unusual unless Tera had already given a statement. A more realistic scenario would be that the police tried to talk to her but she was not cooperative, and then the prosecutor took a deposition from her as part of the charge- that could happen and does often."


 


So here’s my scenario as I have written it thus far. Please tell me whether you think it’s realistic.


 


Tera is 17 when her father is arrested for possession of child pornography. (Photos were found on his computer. The mother turned him in.) Her mother refuses to let her daughter talk to the police because she doesn’t want her involved.


 


Q: Can her mom legally keep her daughter out of it since she’s still a minor? (I’m assuming her mom will give her own deposition.)


 


As soon as Tera turns 18, the attorney calls, inviting her to his office to talk. Basically he wants to introduce himself and get a feel for where her head is at. He knows he can subpoena her, but he’s trying to do this nicely, since she was, after all, a victim. Still believing her father is innocent, Tera refuses the prosecutor’s invitation.


Q: Would an attorney try to set up a meeting like this, or would he go straight to subpoena/deposition?


 


About a week later, the attorney tries one more time, telling her he has something he’d like to show her (the comic books). By now Tera has learned that her father is actually guilty, so she agrees to meet with the prosecutor.


Q: Is that scenario totally unrealistic? If it could happen in the way I’ve described, would the prosecutor have the investigating law enforcement officer there to help him show her the comics?


Q: And if it’s not realistic—if I have to have the prosecutor call her in for a deposition--would she need a lawyer present? Could her mother be in the room with her (even though she’s 18 now)?

Expert:  JPEsq. replied 1 year ago.

"Can her mom legally keep her daughter out of it since she's still a minor? (I'm assuming her mom will give her own deposition.)"

 

No. But the daughter can refuse to talk without a parent, and the mother could have told the daughter not to talk to the police. This would basically just be a refusal to cooperate. The mother would have spousal immunity, so she couldn't be forced to give a statement. In times like these, the police may threaten to arrest her under the guise that they don't know who downloaded the images, basically forcing the wife/mother to give a statement or go to jail. But police can talk to a minor as long as the minor doesn't state that she wants her parents there, especially in cases where the minor is a potential victim of parents. BotXXXXX XXXXXne, the mom wouldn't be able to force the police to stay away from the daughter, but the daughter might be unwilling to help and there is not much they can do about that.

 


"Would an attorney try to set up a meeting like this, or would he go straight to subpoena/deposition?"

 

a prosecutor may try that... but again, the flaw is that they can force her to give a statement even as a minor. So nothing would change when she became 18. More likely, she refused under her mother's influence, and now that she is out on her own, the prosecutor thinks maybe she is more open to it.

 

 

"Is that scenario totally unrealistic? If it could happen in the way I've described, would the prosecutor have the investigating law enforcement officer there to help him show her the comics?"

 

yes, it is somewhat realistic. Certainly realistic enough for legal fiction. These things vary from person to person. Under your scenario, I could believe that a prosecutor would try to turn a witness without police presence. Until now, she has been uncooperative, he is not really deposing her, he is trying to get her to cooperate, which can be done without the police.

 

 

"Q: And if it's not realistic-if I have to have the prosecutor call her in for a deposition--would she need a lawyer present? Could her mother be in the room with her (even though she's 18 now)?"

 

She would have a lawyer only if she brought one. Her mother would not be allowed in if any party did not want her there (including the prosecutor). But as I stated, I think that if the issue is that the prosecutor is trying to get Tera to cooperate with the State, there is no need for a deposition, and it is believable.

JPEsq., Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 5104
Experience: Experience as Criminal Defense Attorney and criminal law professor
JPEsq. and 5 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.


Thank you thank you!

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