Govt. No longer needs to prove(in the 1st Circuit) that pornogaphic images of children are actually children
David Beneman, Maine's Federal Public Defender abstracts US v. Pacheco-Rodriguez, decided by the First Circuit, February 5, 2006.
"[T]he most recent opinion from the First Circuit, addressing the issue left open in US v. Hilton 386 F.3d 13 (1st Cir. 2004). Must the government prove through expert testimony that alleged child pornography depicts real children ? see, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
NO, holds the majority (Judge Lynch joined by Maine District Judge Woodcock sitting by designation), although Judge Torruella provides a wonderful and fact filled dissent. This lengthy (69 page) opinion is available at, http://www.ca1.
The prosecution must prove beyond a reasonable doubt that the image is of an actual child in order to establish guilt. United States v. Syphers, 426 F.3d 461, 465 (1st Cir. 2005); United States v. Hilton (Hilton II), 386 F.3d 13, 18 (1st Cir. 2004); accord United States v. Sims, 428 F.3d 945, 957 (10th Cir. 2005). The government bears the burden, by a preponderance of the evidence, to make the showing that the child is a real child for sentencing purposes. See U.S.S.G. § 6A1.3 (2002) (commentary); see also United States v. Zuleta-Alvarez, 922 F.2d 33, 37 (1st Cir. 1990). Under Nolan, this circuit rejected a per se rule that the government must produce expert testimony in addition to the images themselves, in order to prove beyond a reasonable doubt that the images depicted were of real children.
U.S.v. Nolan, 818 F.2d 1015 at 1018-20 (1st Cir. 1987). The court says, “juries are capable of distinguishing between real and virtual images, without expert assistance.” Rodriguez-Pacheco, slip op. at 12.
Should Noland be over-ruled ? The court discusses stare decisis, looks at the exceptions, and decides none apply to this case, despite changes in technology since the 1987 Nolan opinion. Rodriguez-Pacheco, note 8. They conclude the burden remains on the government to prove the image is of a real child, they just need not use an expert to do so. They also say the defense may choose to put on experts which may undermine the proof offered by the government.
The Torruella dissent is masterful. He weaves compelling facts with supporting law leading to his conclusion.
“Again with due respect to those who differ from me, arithmetic is not determinative of scientific truth. It made no difference how many cardinals said that the sun revolved around the earth, it did not make this asseveration a scientific truth. And it is scientific truth that trumps the day on the issue before this court. It is now beyond scientific dispute that it is possible to create virtual photographic images that can only be detected (with difficulty) by experts. Thus, experts are required before fact finders can make their findings on this issue.” Rodriguez-Pacheco, slip op.at 67-68."
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