The accused has the right to remain silent. He doesn’t have to do anything to help the prosecution establish its case, and he certainly doesn’t have to make any admission that the pictures were in his possession.
If the only way to prove the case is by an admission from the accused, then there could never be a conviction if the accused exercises his right to remain silent. Where the accused remains silent, the prosecutor has to establish all aspects of the case. The prosecutor can call the police who found the materials who are alleging that the materials were found in the accused’s possession, but the only way to establish that the materials fit the definition of child pornography in the criminal statute is to show them to the jurors.
The OP indicates that the charge is possession of child pornography. That does not normally mean that the accused was participating in the acts and is included in the photograph. It is the specific images that need to be looked at, to determine if they meet the statutory definition of child pornography.
When the offence is possession, there is usually a provision in the offence or in the relevant criminal procedure statute which states that when an individual possesses the contraband for a lawful purpose, such as to report it to the police or to prove a crime in court, that person is not committing an offence.
If the accused does not agree to the changes to the images, then he can argue that the prosecutor has not proven the case, and is tampering with the evidence. For instance, he could argue that the section that has been pixellated actually showed the genitals covered, so there material didn’t infringe the statute, and that the prosecutor is asking the jury to take his word for it, rather than actually show the evidence.
When I was on a jury for a possession of cocaine charge, we heard the evidence. A cop said he found a bag of a substance in the accused’s car. The prosecutor then help up a bag, and asked if it was the bag. The cop checked the tags and said yes, and that a lab test showed the substance was cocaine. Later in the jury room we had a collection of all the exhibits in the trial, including the little bag filled with cocaine.
The defense didn’t try to argue that the substance in the bag wasn’t cocaine, they just tried to argue that the defendent had loaned his car to his friend, and the car was in possession of the friend, and it was the friend’s cocaine.
I wondered what would have happened if the bailiff came back to take possession of the evidence, and the cocaine was gone. Anyway, we weren’t committing a crime by having a bag of cocaine in the jury room, neither was the bailiff who brought us the cocaine, neither was the evidence room clerk who tagged and stored the cocaine, neither was the cop who confiscated the cocaine from the defendent’s car.
But note that the reason the defendent never tried to argue that the bag wasn’t cocaine, or that there was no cocaine, was because the prosecution could show us the bag of cocaine. Without the cocaine the whole case falls apart. With the cocaine, the cocaine is an unimportant part of the case.
Same thing here. Although I doubt they have to look at every single picture. Unless the prosecution is treating every image as a separate charge. Then to prosecute 157 counts of child porn, they’d have to produce 157 images.
There are laboratory tests to determine if a white powder is cocaine or baking soda. The prosecutor then calls the technician who performed the lab test as an expert witness.
There is no lab test for child pornography. The statute defines child pornography, and then a real live human being has to look at the materials and determine if they fit within the statutory definition. Justice Potter Stewart’s famous comment about pornography still applies: “I know it when I see it.” That is the judgment call that the jurors are required to make, and to do that, they have to see the evidence.
Prosecutor: “The accused is charged with 100 counts of possession. I am only going to give you 5 representative samples, and I’m going to ask you to take my word for it that the other 95 are just as bad. Also, to spare your feelings, I’ve had my photo lab people alter the pictures to hide the gruesome details. Again, I’m going to ask you to take my word for it that the parts that have been altered and covered up really are child pornography.”
The defence objects, arguing that the prosecution is not proving its case and is providing tampered evidence.
It’s not that a jury shouldn’t have access to all the evidence. If some juror WANTS to sit through and look at each photo, that’s creepy, but fine. But I think the problem I have is that the OP states that his friend HAS to view all these photos. Maybe the OP is wrong, and there is no such requirement. But I don’t see anything wrong with a juror going “OK, i’ve seen enough! I’m gonna take the prosecutor and professional witness’ word for it that he has 100 pictures of child porn in that stack over there even though I’ve only seen 5.”
It’s not so much of a stretch. A juror has to trust a drug analyst or computer analysis when it comes to illegal materials. I’m sure that you could have expert witness testimony from psychologists/psychiatrists who deal with sexually abused children or some other professional who deals with child pornography cases who have been shown the pornography and say “Yes, in my professional capacity I can say that all 100 photographs depict child pornography.” I wouldn’t feel bad as a juror that was presented with such evidence convicting him without having looked at ALL the photos. And I DEFINITELY would want them censored in some way, personally. But I agree, if a juror WANTS access to all of it, so be it.
The problem is there is, legally speaking, no such expert. In the US, child pornography in not per se illegal. It only only becomes illegal when it is “obscene” and “lacks serious literary, artistic, political, or scientific value.” Now of course I think we can all agree that all of it or such the vast bulk of it meets these requirements. But both of those judgement calls have to be made by a jury. And basically the jury is the only group who can make that call.
Well I’m sorry, but I’d have no problem trusting professional witness testimony from people in the health sector, policy makers, etc on this matter. If some sort of PhD or MD got up on the stand and described in detail what each photograph showed, I’d be fine with that and wouldn’t need to see the photos for myself (in the same sense I wouldn’t need to test the cocaine myself if it was a drug case).
If the defense had a problem with this, they could offer their own professional witnesses saying that it’s NOT obscene for reasons x, y, z, etc. If there was any doubt in my mind at that point, I’d look at the censored pictures myself. If there was STILL any doubt, I’d look at the uncensored pictures.
I doubt that I’d have to go down that far, but saying that a juror should be required to do all that is almost like saying that a juror should have to fire a gun at someone in order to understand what attempted murder is. It’s ridiculous to require people who were selected against their choice to look at child pornography. If a juror refused to do so, what would happen to them? Would they face legal penalty? If so, THAT’S really what I have a fundamental problem with. I understand that during jury selection you could say, “I am morally and ethically opposed to EVER looking at something that might be child pornography, so if I am selected for the jury I will refuse to examine any such evidence.” What if they decided to keep me on anyway? What would happen in this case?
Well, yes, we all seem to be be presuming it means that the juror has to take a close, detailed look at each image one by one back in the deliberation room; but AFAIK he just has to look at the evidence as it is presented in the courtroom. Once back in the Jury room it’s unlikely that if he says “I’ve seen enough” (and thinks to himself “I’m not even really looking any more, I’m focusing on the exhibit-number on the top right”), anyone will make a Henry Fonda “12 Angry Men” scene.
But the evidence has to be presented in the courtroom and the judgers of fact have to see it. Sparing the sensibilities of a juror is not, should not be of any concern to the Court.
Plus, IMO of course, the more heinous the crime of which someone is accused, the harder it should be to make the case for the prosecution, not the easier.
Good question. Could the court hold someone in contempt over such a claim, or would the judge be mandated to disqualify the potential juror no matter what? Doper lawyers, your take on this?
You just inadvertently put an hilarious image in my head, where the premise of the movie was regarding child pornography, and not murder. And Starving Artist is the juror who is trying to convince everyone that it’s NOT pornography, that it’s just some old guy showering and hugging a naked 10 year old boy, and I’m sitting there going “I DON’T WANT TO LOOK AT THESE 1000 PHOTOS HE TOOK, DAMMIT, I MADE UP MY MIND.”
Then slowly, one by one, we admit there is enough doubt that there was no pornography involved, and that it was all artfully done, etc.
If I were a juror, and another juror said that, I would switch my vote to acquittal, on the basis that due process has been violated, by juror misfeasance.
(If there were a way to do so, I’d blow the whistle, and try to get a memo to the judge, letting him know that one of the jurors was refusing to deliberate upon the evidence. Is there a whistle-blowing process?)
I don’t disagree with you… but the Supreme Court does. Right now as the law currently stands, if the material in question isn’t obscene it isn’t illegal. The current method of testing for obscenity is the “Miller test.” It has three prongs. The first two, both apply “community standards,” to decide if the work “appeals to the prurient interest” and is a “patently offensive” depiction in violation of the appropriate law. Both of these have to be decided by a jury, i.e. the members of the community.
The third prong, whether it “lacks serious literary, artistic, political or scientific value,” can bring in expert testimony. But even then the final decision on “serious value” still has to be made by the jury. And to make all three decisions the jury has to judge based on the actual work. Not some expert’s opinion of the work. If a prosecutor used your recommendation, every conviction would be overturned on appeal, because it wouldn’t meet current legal requirements.
As an analogy, in order to decide if I like a movie, I have to see the movie. Other people may have seen the movie. They may know my tastes. They may thus be able to tell me, “you won’t like this movie.” And they would likely be correct. But the only way to know if I liked the movie would be for me to see the movie. My tastes are eclectic. Maybe even though I generally dislike movies of that type, or with that actor, or whatever, I actually end up liking that movie. Likewise, maybe the expert has a good idea what the jury will think is prurient and patently offensive. And maybe the expert is wrong. The law requires that the jury make that call.
And if you pull this back a bit; take it a lesser extreme. Lets say a guy gets arrested for black and white drawings of cartoon underage girls in their underwear. That is potentially a violation of the Protect act. But a jury needs to decide if those images crossed the line and are obscene. And the guy who has explicit extreme photos gets the same protection. He gets a jury who decides if his images ok or not in accordance with the local community standards.
Thank you all for the replies. This is a very informative thread. My friend is usually very temperate, it alarmed me to hear the slur in his voice when we talked. We did NOT talk about the trial, he was very careful to not tell me anything.
Today, he called and told me that they had finished their deliberations, so I can post a link to the newspaper. If not for the pics, this would be a case that I think most dopers would love to debate.
For anyone who wants more background, search for the Yavapai Six.
Now that my friend can read the newspaper again, he looked over all the articles and said that they were pretty accurate. I’m looking forward to hearing the other stuff.
“Ladies and gentlemen of the jury, I have some disgusting pictures that were in the possession of the defendant. They are right here in this folder. Just take my word for it. They are really really bad.”
