An image isn't pornographic simply because the feds claim it is

Most of our readers have heard some form of the phrase "federal law trumps state law." It can be called preemption in the legal world, the hierarchy of government, displacement of state law or even a choice of prosecution when it comes to a criminal charge. Either way, federal law applies across the board to all 50 states, but is it always applied in the same way?

A specific section of federal law may be used in different jurisdictions from Texas to California to New York, but it is in the interpretation of the language that it differs. In terms of defense to charges, this ability to argue what the law means or includes can make all the difference. Take for example the federal section that provides a basis for child pornography charges. The language may seem clear, but is it? What about when images have been photo-shopped?

Under federal child pornography laws, an individual can be convicted of child pornography for images that have been altered or modified. The altered images much "depict children engaged in sex acts." But what if it is clear that the bodies in the photographs are adults and a minor's face has been cut and pasted in place of the adult face? Does this constitute "children engage in sex acts"?

Most recently, a man was charged under this morphing provision in New York. The outcome of his case remains pending, but it isn't the first time prosecutors have attempted to charge this situation under this provision. The court of appeals from the second and the sixth district have upheld convictions of this type in the past while courts in the ninth and eleventh federal districts have overturned convictions on the basis that there were no "children" engage in the acts.

The point is that a strong defense presented by an attorney experienced with the intricacies of these types of cases is vitally important because it does matter how evidence is presented in court.

Source: News & Insight, "N.Y. man charged with possessing cut-and-paste child porn," Jessica Dye, Jan. 25, 2013

If you have been accused of child pornography, our Dallas-Fort Worth defense team understands the serious nature of these cases and is experienced in defending against these charges whether it is in state or federal court.