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Defense: cached browser files are automatic and do not show "knowing possession"
Summary
Appellate counsel argued that cached images are created automatically by web browsers and that the record lacks proof Mr. Lane knew Exhibit 39 was stored or that he opened or modified it; counsel pointed the court to the trial record for expert testimony on caching behavior.
Edward Wicksler, arguing for appellant Lane, told the court that Exhibit 39 was a cached image and that witnesses described cache files as artifacts of web browsing. "When you visit a Web site, your computer automatically saves any image contained on that Web site onto your hard drive," Wicksler said, arguing that automatic caching alone does not show a person knowingly possessed the file.
Wicksler asked the court to require proof both that the image was stored on a drive in the defendant's possession and that the defendant knew it was stored there. He cited state case law (Mobley, Perez) and federal decisions as examples where courts declined to treat passive online viewing as sufficient to establish knowing possession.
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