Most of these cases do not fall apart because of a flawed search or a procedural technicality. They fall apart because the prosecution assumes that having a file on a device is the same as having wanted it there, and that assumption does not always hold. Conscious and deliberate possession is the element the defence must examine from day one, before even addressing the chain of custody or the content of the forensic report.
How these cases usually begin
The offence of child sexual abuse material is defined in article 189 of the Criminal Code, which punishes everything from production and distribution to mere possession. Alongside it may appear the offences against the sexual freedom of minors, set out in Title VIII of the Criminal Code, reformed by Organic Laws 10/2022 and 4/2023. These are serious offences, carrying prison sentences.
The investigation is almost always digital. It starts from a search for files on networks, from a report by a platform or a specialised unit, or from the seizure of devices in another case. From there come a home search and the seizure of the equipment, whose contents are subjected to analysis. The person under investigation often finds out about the proceedings when their devices have already been taken.
Your rights from the first moment
The person under investigation has the right to the presumption of innocence, to be informed of the facts attributed to them, to remain silent and not to testify against themselves, and to a lawyer from the very first moment. That first moment matters especially here. In a search and a first statement, made under the shock of seeing one’s own home searched, it is easy to say things that weigh heavily afterwards. Staying silent until you have spoken to a specialised lawyer is not a sign of anything, it is a right, and often the most sensible decision.
Why the computer forensics decide everything
Here is the heart of the matter. In these offences the evidence is a set of files and records inside a device, and that evidence does not speak for itself, it has to be interpreted. A rigorous defence does not confine itself to arguing the law, it also examines the technique, because that is where the case stands or falls.
The chain of custody is the first thing. How the device was seized, how it was copied, who handled it and whether that integrity can be shown without gaps. A failure in the custody compromises the whole of the evidence.
Then comes the question that really matters, whether the possession was conscious and deliberate. A file on a device does not amount, without more, to a decision to have it. There are automatic downloads, files in temporary memory or in a program’s cache, content received unrequested, computers and wifi networks shared by several people, and malware that introduces or moves files without the user’s knowledge. Establishing who really controlled the device, and when and how each file arrived, is forensic work on which much of the case depends.
That is why in these matters an independent computer forensic report, one that reviews the prosecution’s analysis instead of taking it at face value, is not a luxury, it is the backbone of the defence. It is the ground we work on every day, and I set it out in why electronic evidence decides cases.
What to do
Do not give a statement without a specialised lawyer, and do not try on your own to handle, tidy or “clean” any device, because as well as being useless against a forensic analysis it can make your situation worse. Put yourself as soon as possible in the hands of a defence that masters both the criminal law and the computer evidence, because in these cases the two go together.
If you give a statement without preparing for that first hearing, or if the investigation phase passes without a defence expert report on the devices being proposed, the prosecution’s initial technical report can end up being the only reading of your devices that reaches trial. At the firm we review the chain of custody and the origin of each file before that evidence is fixed. Call us on +34 677 841 007 or write to us through contact the firm before signing or declaring anything. When you speak with us, have ready the police report or court summons, the search and seizure record if there is one, and any document showing who else had access to the device or the wifi network.
Frequently asked questions
My home has been searched and my devices taken, what do I do?
Do not give a statement without a specialised lawyer and do not handle any equipment. Put yourself as soon as possible in the hands of a defence that masters the criminal law and the computer evidence. The way the first hours are handled conditions the whole procedure.
Does having a file on the computer mean I am guilty?
Not automatically. A file being on a device does not by itself prove a conscious and deliberate possession, because there are automatic downloads, temporary or cached files, content received unrequested, shared computers and networks and malware. Establishing who controlled the device and how each file arrived is a forensic question.
Why is the computer forensic report so important?
Because the evidence is digital and does not speak for itself. The chain of custody, the integrity of the data and the real attribution of the possession are decided in the technical analysis. An independent report that reviews the prosecution’s analysis is, in these cases, the backbone of the defence.
Should I give a statement to explain what happened?
Not without having discussed it first with your lawyer. You have the right to remain silent and not to testify against yourself. A hasty statement, made under the pressure of a search, can harm you. The strategy of whether to give a statement, when and what, is decided with the defence.