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July 29, 2010

MSC Opinion: A criminal defendant can be bound over for trial on a charge of knowing possession of child sexually abusive material where that person affirmatively purchased and accessed images of chi

On July 27, 2010, the Michigan Supreme Court published its consolidated opinion in People v. Flick, Case No. 138258, and People v. Lazarus, Case No. 138261. Justice Corrigan wrote for the 4-member majority affirming the binding over of two criminal defendants for trial on the charge of knowing possession of child sexually abusive material, even though the materials in question were images that had been saved into the temporary internet files of the defendants' computers. The majority found that, coupled with evidence that the defendants had purchased and downloaded the images, they had taken affirmative action to exercise dominion or control over the images, meaning that the defendants had actual or constructive possession of the abusive images. In a dissent authored by Justice Cavanagh, three members of the court found that the prosecution must establish not only power to exercise dominion and control over the material, but also the intent to exercise such control. Thus, the minority reasons that simply purchasing and viewing such material on the internet is insufficient to support a charge of knowing possession without evidence that a defendant intended to do something (or did something) with the material, other than just view it on the internet, where the computer and not the user, created a temporary internet file.

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