INTERNET LAW - Prosecutors may not Need to Provide Expert Opinion Testimony in Child Pornography Prevention Act Cases to Meet their Burden of Proof.

Martha L. Arias, IBLS Director.
mail icon Email discuss icon Discuss printer icon Print

A recent 2007 decision by the United States Court of Appeals for the First Circuit (US v. Rodriguez-Pacheco) held that the prosecution needs not to provide expert opinion testimony to prove that a particular pornographic image depicted a real child- instead of a virtual image- to meet its burden of proof of preponderance of evidence at sentencing. This holding is interesting (and somehow tactful) complement to the United States Supreme Court decision on Free Speech Coalition case (535 US 234), where the Supreme Court granted First amendment protection to virtual –no real- child pornography images.

Join the Internet Law Forum (ILF) to... discuss, share information and knowledge, questions and doubts... regarding the legal aspects of the Internet. The ILF is ALL about the INTERNET... business, laws and regulations, social media... Sign up to enjoy the benefits of the Free Global membership in the IBLS international community!

A recent 2007 decision by the United States Court of Appeals for the First Circuit (US v. Rodriguez-Pacheco) held that the prosecution needs not to provide expert opinion testimony to prove that a particular pornographic image depicted a real child- instead of a virtual image- to meet its burden of proof of preponderance of evidence at sentencing.   This holding is interesting (and somehow tactful) complement to the United States Supreme Court decision on Free Speech Coalition case (535 US 234), where the Supreme Court granted First amendment protection to virtual -no real- child pornography images.

 The Child Pornography Prevention Act (CPPA) was enacted to battle the use, distribution, possession, and sell, through computer means, of pornographic images depicting children.   Initially, CPPA banned the use of virtual and computer generated child pornography images as well; but these provisions were declared unconstitutional by the US Supreme Court in the Free Speech Coalition case of 2005.   In the Free Speech Coalition, the Supreme Court held that "the ban on virtual child pornography was unconstitutionally overbroad since it proscribed speech which was neither child pornography nor obscene and thus abridged the freedom to engage in a substantial amount of lawful speech."  Indeed, after this Supreme Court ruling, the question on the burden of proof at sentencing turned to be awkward.    

 United States v. Rodriguez-Pacheco, 475 F.3d 434, is significant to recognize how Federal Courts would interpret the burden of proof issue at sentencing when dealing with CPPA cases.  Sentencing guidelines seem to impose an increase in the sentence depending on the number of child pornography images hold by the defendant.  In Rodriguez-Pacheco, the prosecution argued that he held at least 10 images of child pornography in his hard-drive.  This fact resulted in a two-level increase in defendant's sentence. 

 Rodriguez-Pacheco argued that the prosecution should have provided expert opinion testimony as to each of the 10 child pornography pictures to meet its burden of proof.  Rodriguez-Pacheco expressly claimed that "as a matter of law the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002), requires the government to produce such expert opinion testimony, even in the absence of direct testimony provided by defendant, to meet the burden of proof of guilt beyond a reasonable doubt, and so also the lesser burden of proof by a preponderance of evidence at sentencing." 

 In response to Rodriguez-Pacheco"s argument, the Court held that Free Speech Coalition does not require any expert opinion testimony in these cases and that this Court's view was in accord with holdings by other Circuit Court of Appeals that had addressed the question. 

 Therefore, in CPPA cases and according to precedent decisions like Rodriguez-Pacheco, prosecutors may thoughtfully exclude expert opinion testimony of those particular child pornography images that may not look real images and still use those child pornography images to get sentence enhancement for defendants.   No doubt this is an interesting legal technical point for defense attorneys in CPPA cases. 

Martha L. Arias, IBLS Director.

[Reference 1]

[Reference 2]

[Reference 3]

email icon Email discuss icon Discuss printer icon Print