Can Porn Evidence Be Used in a Sex Assault Case?

In a criminal trial, the prosecution’s job is to prove that the defendant committed the alleged offense. The objective is not to put the defendant’s overall character on trial. Indeed, under Texas law, such character evidence is inadmissible to prove the defendant’s guilt with respect to the actual charges.

Unfortunately, we often see prosecutors try to introduce such evidence in cases involving sex crimes. For instance, if a defendant liked to view pornography or sexually explicit images, the prosecution might argue this demonstrates a predilection towards committing sexual assault. But in reality, such “evidence” is simply designed to inflame a jury without shedding any substantive light on the alleged crime.

Appeals Court Tosses Conviction Tainted by Improper Admission of Cellphone Records

Recently, the Texas Sixth District Court of Appeals overturned a sex crimes conviction precisely because the trial judge allowed the jury to view such inadmissible evidence. The defendant in this case, Johnson v. State, was charged with aggravated sexual assault of an 8-year-old girl. During the subsequent trial, prosecutors sought to introduce records from the defendant’s cell phone, which contained what the Court of Appeals described as “containing over 500 pornographic images and over 400 search results containing links to pornographic websites.”

The prosecution insisted this evidence was relevant to the case, as some of the images confirmed the accuser’s statement to an outcry witness that the defendant showed her “photographs of people humping” on his cell phone. Additionally, the prosecution argued the images and search results demonstrated the defendant’s “predilection for younger-looking girls and pornography.

The jury ultimately convicted the defendant on two counts of aggravated sexual assault of a child. The Sixth District held this conviction was tainted, however, by the improper introduction of the contents of the defendant’s cell phone. The appellate court initially explained that ”[s]ometimes evidence that the defendant possessed pornography may be probative to corroborate a child sexual assault victim’s statement that the defendant showed her pornography before assaulting her.“

The problem here, the Sixth District said, was that the accuser, in this case, testified the defendant assaulted her in 2015. The police did not arrest the defendant until two years later, in 2017. It was unclear how many of the images introduced, if any, were therefore actually on the defendant’s cell phone at the time of the alleged crime. Put another way, if the images were all placed on the defendant’s phone after 2015, there was no way he could have shown them to the accuser prior to her alleged assault.

Nor was the evidence taken from the defendant’s phone admissible to show a “predilection for younger-looking girls and pornography.” Again, the appellate court emphasized the defendant’s character was not on trial. And even if it were, the images recovered were all of “post-pubescent women” and not young girls like the accuser.

Speak with a Houston Sex Crimes Defense Lawyer Today

Prosecutors will often do whatever it takes to obtain a conviction, particularly in cases where the accuser is a child. But there is never any excuse for running roughshod over a defendant’s constitutional right to a fair trial. An experienced criminal defense attorney can help defend your rights. If you have been charged with a sexual offense or sex crime, contact the Law Offices of Tad Nelson & Associates in Galveston, League City, or Houston today to speak with a lawyer.