1st Circuit: Child porn conviction upheld, but concurrence wants to make it harder to convict
The First Circuit has issued an opinion in U.S. v. Wilder, No. 06-2213 (1st Cir., May 12, 2008). The opinion begins:
Appellant-defendantDarren Wilder appeals from his conviction after a jury trial for possession, transmission and receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(1), (2) and (b)(1) and § 2252(a)(4)(B) in the United States District Court for the District of Massachusetts. He challenges his conviction on five grounds: . . . (4) that the evidence was insufficient to support a finding that the images alleged to evidence the transportation and receipt of child pornography in Counts One and Two depicted real children; and (5) that the evidence was insufficient to support a finding that the images listed in Count One of the indictment depicted a minor engaging in sexually explicit conduct. We affirm the conviction.
Concurring Senior Judge Stahl indicated that he would increase the evidentiary burden imposed on the prosecution by require expert testimony to distinguish between child porn and “virtual” child porn. He writes:
I agree with the majority’s result, which is required by precedent, and much of its reasoning. I write separately to express my dissatisfaction with our current evidentiary standard,
as set forth in United States v. Rodriguez-Pacheco, 475 F.3d 434 (1st Cir. 2007), and applied in this case, for determining whether the government has sufficiently proven that the photographs on which the defendant’s conviction was based depicted real children.The federal prohibition against child pornography cannot extend to images that do not depict an actual child without running afoul of the First Amendment. Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002). Thus, “in order to establish guilt,” the government “must prove beyond a reasonable doubt” that the images providing the basis for a child pornography prosecution depict real, as opposed to virtual, children. Rodriguez-Pacheco, 475 F.3d at 439 . . .This circuit, following in the footsteps of a number of other circuits, has refused to interpret Free Speech Coalition as “lay[ing] down ‘the absolute requirement that, absent direct evidence of identity, expert testimony is required to prove that the prohibited images are of real, not virtual, children.’” . . .
Technological advances in recent years have been such that an untrained eye simply cannot easily distinguish a photograph of a real person from a virtual image by merely eyeballing the photographs in question . . .