Cache Evidence, Mens Rea and Accessing Illicit Material

Hawkeye, the pathfinder in James Fennimore Cooper's "Last of the Mohicans," was legendary for his tracking skills. He readily determined from his observations of broken branches and compressed earth the probable direction and destination of hostile raiding parties.[FOOTNOTE 1] These skills were quite valuable in his time, circa 1757. Similar skills, though digitally advanced, may be just as valuable today.

While web browsing, a computer creates temporary files in a folder, called the cache, of almost every site visited.[FOOTNOTE 2] On the opposite end, websites are being saved by entities for purposes of preserving the past. Accordingly, a computer user's trail may be uncovered by examining the cache. Today's lawyer and 21st-century pathfinder may discover that the cache is a significant source of evidence. Accordingly, this article addresses issues that may arise in assessing its evidentiary value.

The cache has been of particular interest in cases involving whether the computer user is involved with accessing illicit material. One issue concerns cache evidence discovered on a defendant's computer, and whether such possession is probative of the mens rea element of the particular crime charged.

Mens rea in New York, that is, the applicable culpable mental states, is defined by Penal Law §15.05, and is an essential element of all possessory or trafficking crimes. Defendants have argued that the cache reflects innocent, inadvertent or unintentionally and automatically acquired matter, and therefore not knowingly possessed. The issue, of course, requires examination of the particular statute's mens rea.

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Source: law.com
By: Peter A. Crusco