One chilling thought I’ve always had in regards to child pornography laws is that it seems that if law enforcement find child pornography on someone’s property, they are charged with posession regardless of how it got there.
In this case, wouldn’t it make it easy to get framed? What legal steps are taken to prevent an innocent person from having said materials planted in their property with the intent to have them falsely accused of posessing child porn?
And, if the person in the photograph isn’t identifiable, how could they even determine if it was child pornography by looking at it visually? You could have a picture of a well-developed 12-year old girl- how could a prosecutor prove that the girl in the picture was underage?
As for the first question, it’s not different from having heroin planted in your property. So, nothing new here.
As for the second, here in France, since a recent law was passed, they don’t have to prove she’s underaged if she appears to be (because otherwise, most people possessing child porn couldn’t be prosecuted, since most pictures wouldn’t be of identified child). And I’m pretty certain I read on this the SD board in some thread that the legal situation was exactly similar in the USA. They don’t have to prove the girl is actually 12 if she looks like 12. That would be up to you to find her out and actually provide proofs that she was actualy over 18 when the picture was taken. IOW, you must prove you’re innocent. I suppose some american poster will know for sure.
There’s certainly a potential for abuse in these laws, with an overzealous prosecutor (extreme example : you had 8 653 porn pictures on your hard drive, and he prosecutes you because three of these pictures feature a girl who looks like she could possibly be 17), but on the other hand, without it essentially all people possessing child porn would be off the hook, as long as the children depicted couldn’t be precisely identified.
Maybe the laws are different in France, but in the United States, you are innocent until proven guilty. The burden of proof would lie on the prosecutor that the photograph of the girl was under 18. If the girl could not be identified, how could they prove the girl was underage if she was well developed?
The government is required to prove that the defendant “knowingly” possessed child pornography.
No more easier than it has been to frame anybody for anything else.
I’m not sure what you mean by this, but a person is presumed to be innocent and the government must prove the person knowingly possessed child pornography beyond a reasonable doubt. There are no special provisions that make it any harder or easier to frame somebody for this particular offense.
The age of a model in a child pornography prosecution can be determined by a lay jury without the assistance of expert testimony. In the most extreme cases, the pictures are so hideously obvious, no testimony is necessary. However, many times the government will call expert witnesses to offer testimony about their opinion on the age of the person.
In non-obvious cases, the government offers expert testimony regarding the age of the models. These experts offer their opinion that the person in the picture is under the age of 18. In general, these experts rely on the physical development of the vcitims, the Tanner Scale, and their own training and experience. The jury is free to agree, or disagree, with the expert. There is no requirement that the model be identified.
IIRC, in the United States, the part about “anyone who appears to be underaged” was ruled unconstitutional. The Supreme Court found it to be overbroad. You can’t shift the burden of proof away from the prosecutors like that.
Let’s also keep in mind that intent has a lot to do with it. If a guy’s computer is found to have hundreds and hundreds of sexually explicit pictures, and two or three of them turn out to be 16-year-olds who look mature for their age, I doubt that he’s going to go up the river for any reason.
BUT, if he has them categorized and labeled as such, say “16-Year-Old Lolitas”, then he’s got some 'splainin to do.
A recent case around here involved just this sort of thing. I’m not sure of all of the specifics involved, but basically an 18-year-old college freshman at the University of Illinois at Springfield was found to have several hundred sexually explicit pictures on his computer. A few dozen of those were known to be underage – apparently the investigator recognized the faces (or whatever) from an earlier CP bust in Illinois (in the earlier bust, they perps were producing the images by actually photographing the girls in their apartment and then selling them on the net to subscribers). Not hideously underage, mind you - I think the youngest were mature-looking 16.
The guy claimed ignorance, and at least a few people in town spoke up in the local newspaper’s editorial pages in his defense. Further complicating matters was the fact that many of the illegal images on his computer were of 17-year-olds who were a few weeks shy of their 18th birthdays. Letter of the law and all that, I know.
I’m not sure what wound up happening with the case. And since it’s only been a year or so, it might not have even gone to trial yet.
And what if she wasn’t well developed? She still could be over 18. I knew such a girl when I was a student. She was 18, but nobody would have guessed so by watching at her. She appeared 13-14. So, even with a girl clearly looking 13, you could argue that maybe she’s older and wait for the prosecutor to find her (which would probably be impossible) and prove she’s underaged.
Anyway, what I wrote concerning the prosecutors not having to prove that the girl (or boy, for that matter) is actually underaged if s/he appears to be is what I read in a similar thread some months ago. Now ** Hamlet ** is stating, to sum up, that it’s up to the jurors to make their minds (IOW the prosecutor doesn’t have to actually prove it’s the picture of an underaged child, hence somehow the burden of proof is still on the accused’s shoulders), and ** diceman ** states that there has actually be such a law, but that it was stroke down by the SCOTUS.
So, what’s the straight dope on this issue? Do such a law exist or have existed? At the federal or at the state level? Was it/ were they struck down or not? Are cases actually handled as stated by Hamlet? In the same way in all states?
Finally, if they are handled in the way hamlet describes, in what way is it different from having the burden of proof lying with the accused, since he’s prosecuted for a crime, without the accustion having to prove that the crime actually took place?
It’s essentially, for what I know, what happens here. According to the law I was refering to, the prosecution doesn’t have to prove the person was underaged in order to prosecute the culprit. Of course, the court can still let the accused walk free eventually, but still, it doesn’t work that way for other crimes. The prosecutors can’t state “there was some white powder in his house, it could have been heroin rather than flour, so we’re going to prosecute him for drug trafficking, and now it’s up to the courts to decide” (or at least I hope they can’t).
I fear I may have been misunderstood. The government retains the burden of proving that the person depicted in the photograph is under the age of 18. What I was dealing with was the HOW the government can meet this burden of proof. In many child pornography cases, the victim is unidentified, so the government is unable to say “The victim is B.D. and she was born on August 6, 1990”. What they can do, however, is offer expert testimony that the person in the photograph/video is, in the expert’s opinion, under the age of 18. At no point does the burden of proving the age of the victim shift to the defendant. I believe Diceman was referring to a SCOTUS case, Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), where the Court found the provision of the federal child pornography law to be unconstitutional because it made it illegal to make/possess pornography that “appears” to involve minor children, regardless if the participants are actually over the age of 18. They also held the portion of the statute that made computer-created child pornography illegal unconstitutional.
As I stated above, the burden remains with the government at all times. My prior post was an explanation of how the government goes about meeting that burden of proof. If I wasn’t clear on that before, I apologize.
Again, I’m sorry for the confusion, but the burden of proving that the person in the photograph/video remains on the State. The threshold question–whether the age of a model in a child pornography prosecution can be determined by a lay jury without the assistance of expert testimony–must be determined on a case by case basis. It is sometimes possible for the factfinder to find the model was a minor without hearing any expert testimony. That does not mean, however, that there is no evidence presented, or that the burden has somehow shifted to the defendant. For example, the pictures/video itself, along with letters, ads, etc. indicating they are minors, will be sufficient proof for a finding of guilty on a child pornography charge, even if there is no absolute proof of the identity of the victim.
Thanks. I think it’s quite clear for me, now.
However, I’ve another question which might be hijack : who’s to decide what are the conditions necessary for the burden of proof to be met? Laws? Jurisprudence?Jurees opinions? Are they defined somewhere?
For instance, usin again my drug trafficking example. What conditions should be met for the proofs to be considered sufficient? Could a prosecutor states : “we proved that he owned a package of white powder, and though he disposed of it, we have a picture of it and it looks like heroin”? Could that be enough for a prosecution? Could then the jury has to decide on this basis alone? If not, could a law be passed stating that’s enough?
Generally speaking, who would have to decide that the prosecutor doesn’t have a leg to stand on if the evidences provided are really uncompelling? The grand jury?
Let’s assume that the evidences provided are very slim (still like in my white powder package example), and that nevertheless the case go to court, and the jury, for whatever reason (the accused looks like a scumbag or something), find him guilty. Can the trial be struck down by an appeal court on the basis that the burden of proof had not be met at the first place, hence that the trial should never have taken place?
As with most things in the law, it all depends on the jurisdiction. I can describe in general terms, but the specifics may change depending on the State or federal court you are in. I will, however, limit my discussion to felonies. Generally speaking, to begin a criminal prosecution for a felony, the prosecutor must file an information or complaint which lists the charge against the defendant. These must be sworn to by the prosecutor or complainant. After the initial charge, the government has, depending on where you are, 45 days to prove that there is probable cause that a crime was committed and the defendant committed it. This can be done at a preliminary hearing, before a judge, or at a grand jury. One of those two bodies must make a finding that there is probable cause for the charge. After that, skipping pre-trial motions, etc. comes the trial. The judge presiding over the trial has to make a determination at the end of the government’s case, whether the government has presented sufficient evidence that a reasonable jury could find the defendant guilty. The judge will make this determination again at the close of the defendant’s case. Then it’s up to the jury (or the judge if the defendant waived jury) to find the defendant guilty or not guilty. If found guilty, the defendant can appeal, where the appellate court will revisit the issue of guilt to find if there is sufficient evidence to support the conviction.
So, from the start, there are checks on the prosecutor’s power to charge somebody. In addition, the judge presiding over the trial, the fact finder (either judge or jury), and the appellate court will all consider the issue of whether the government has shown sufficient evidence to prove the defendant guilty beyond a reasonable doubt. Some State’s define “reasonable doubt”. Some don’t. It depends on the jurisdiction.
All determinations of sufficiency of the evidence are made on a case by case basis. I would be amazed that a judge would allow the prosecutor to rely only on a eyeball of a photograph to prove that the substance was heroin. I cannot imagine that would amount to sufficient evidence. For example, in a meth case in Minnesota, the defendant did a deal with an undercover officer, but when they tried to arrest him, he drove off with the meth and eventually pitched it. The police were unable to recover the evidence. The appellate court found that a defendant’s admission that it was meth, as well as the officer’s opinion that it was meth, was insufficient proof that the substance was indeed meth.
Yes. The example I gave you above is an example of that. The judge found the evidence sufficient, and the jury found the guy guilty. It was the appellate court that overturned the conviction because the evidence was insufficient.
The appeals court will accept the findings of fact made by the jury - as long those findings have sufficient support in the record. They won’t substitute their judgement for the jury’s, but they will require that the jury’s verdict be grounded in reasonable inference and that the credible evidence excluded all reasonable hypotheses other than guilt.
In your example, the only evidence the jury had to consider was the picture of the bag of white powder. That doesn’t meet the test of excluding all reasonable hypotheses other than innocence.
I’ll also point out that a case overturned on appeal for insufficiency of the evidence is subject to a double-jeopardy bar against reprosecution. Unlike other reasons for dismissal, which generally allow the accused to be retried, the accused here is generally not subject to retrial.