The prosecution of child sexually abusive material offenses under MCL 750.145c requires proof that the defendant acted knowingly with respect to the nature of the material. In People v Gillam, 479 Mich 361 (2007), the Michigan Supreme Court addressed the mens rea requirements of MCL 750.145c and held that the "knowing" standard applies to each element of the possession offense: the defendant must have known that the material depicted a real child engaged in a sexual act. This knowledge requirement provides a potential defense where the defendant can establish that he or she did not view the material, did not know what it depicted, or had reason to believe that the images depicted adults rather than minors.

The forensic attribution of digital material to a particular defendant is more complex than prosecutors often acknowledge. Peer-to-peer file sharing networks, which are frequently used by law enforcement investigators in predicate investigation of child pornography cases, can result in the inadvertent downloading of mislabeled files. Malware and remote-access trojans can be used to download and store material on a victim's computer without the owner's knowledge. In United States v Richardson, 658 F3d 333 (3d Cir 2011), the federal court of appeals recognized that the mere presence of child pornography on a defendant's computer does not automatically establish that the defendant knowingly possessed it—the government must present evidence establishing that the defendant knew what the files contained. Michigan courts apply a comparable analysis under the knowing possession standard of MCL 750.145c.

Search warrant challenges are among the most powerful tools available in child sexually abusive material cases. The Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Michigan Constitution require that search warrants be supported by probable cause and describe with particularity the place to be searched and the items to be seized. In the digital context, the requirement of particularity is especially important because a modern computer or smartphone contains virtually the entire record of a person's private life. In People v Champion, 452 Mich 92 (1996), the Michigan Supreme Court addressed the constitutional requirements for a valid search warrant and the consequences of an insufficiently particular description of the place to be searched. Defense counsel should seek to suppress all evidence obtained pursuant to a warrant that authorized a general exploratory search of the defendant's digital devices without adequate particularity.

Where suppression of the digital evidence is not achievable, the defense may challenge the forensic methodology used to examine the devices. The reliability of digital forensic analysis is subject to challenge under MRE 702 and the standards governing expert testimony. Defense-retained digital forensic experts can challenge the prosecution's analysis by examining the original forensic images of the defendant's devices, reviewing the metadata associated with the files in question, and identifying evidence of unauthorized remote access, malware, or other factors that undermine the prosecution's attribution theory.

Plea negotiations in child sexually abusive material cases require careful analysis of the sentencing guidelines, the applicability of mandatory minimums under MCL 750.145c(4), and the potential for federal prosecution under 18 USC 2252 or 18 USC 2252A, which carry a five-year mandatory minimum for possession and a ten-year mandatory minimum for distribution. Cooperation with federal investigators in exchange for a favorable plea disposition is one option that must be carefully evaluated in light of the defendant's full exposure. Attorney Maze's experience in federal court in the Eastern District of Michigan allows him to advise clients on the full scope of their state and federal exposure and to negotiate with both state and federal prosecutors simultaneously.