On November 16, 2006, I blogged about a Pennsylvania Superior Court opinion that the crime of possessing child pornography from an online source (as opposed to a statute prohibiting the mere viewing of child pornography) requires that the defendant know that the image is actually being saved to the computer. Pennsylvania v. Diodoro, 2006 PA Super 308, No. 1889 EDA 2005.

Thanks to a colleague for notifying me that an en banc panel subsequently reversed the foregoing Diodoro opinion. Commonwealth v. Diodoro, 932 A.2d 172 (Pa. Super. Ct. 2007), aff’d., 970 A.2d 1100 (Pa. 2009).

In affirming Diodoro’s conviction, the Pennsylvania Supreme Court concluded that "a defendant may be convicted of sexual abuse of children for the mere knowing control of child pornography". In making the foregoing conclusion, the court quoted the following statutory passage:

"Any person who knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense." 18 Pa.C.S. § 6312(d). 

Consequently, if a prosecutor tries to obtain a child pornography or obscenity possession conviction for mere control of the material, it is critical to examine whether the applicable statute speaks of permitting a conviction for mere control.

In any event, the overturned Diodoro Superior Court panel opinion includes an overview of various court decisions that have addressed the possession issue, including the following useful passage:

"The Eighth Circuit also held that merely viewing an image without knowing it is being saved does not constitute ‘possession’ or even ‘receipt.’  In United States v. Stulock, 308 F.3d 922 (8th Cir. 2002), while affirming convictions of child pornography knowingly saved to a hard drive, the Eighth Circuit cited with approval the trial court’s acquittal on the charge of possession of images found in the defendant’s cache file, stating, ‘The possession charge specified only the images found in the browser cache. [O]ne cannot be guilty of possession for simply having viewed an image on a web site, thereby causing the image to be automatically stored in the browser’s cache, without having purposely saved or downloaded the image.’ Id. at 925."

Jon Katz