Child Pornography-Massachusetts

In response to the Government’s Motion for Reconsideration and Clarification of her decision to not allow expert testimony in United States v. Fabrizio, U.S. District Judge Nancy Gertner confirmed a U.S. precedent suggesting that to secure a conviction for child pornography, prosecutors must prove that the images are of real, not virtual children.^[1] Judge Gertner denied the Government’s expert witness to testify under the Daubert standard. In Daubert v. Merrell Dow Pharmaceuticals, Inc.,^[2] the Supreme Court determined four factors for “expert” testimony: testing, peer review, error rates, and acceptability in the relevant scientific community. ^[3]

The holding in the case centered on First Amendment rights.^[4] The court stated that "The Government may not suppress lawful speech as the means to suppress unlawful speech." ^[5] The court further said,” The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted." ^[6]

The case involved child pornography images found on Rudy Fabrizio’s work computer.^[7] Fabrizio’s employer reported it to the authorities and charges were filed.^[8] The main issue in this case focused on whether the images were computer-generated or whether the images depicted 'real' children.^[9] The Government lost this case because there was no evidence proving that the pornographic images depicted real children.^[10]

The Government presented the opinion of two expert witnesses.^[11] The testimony of the first Government expert, a Dartmouth College professor of computer science who wrote a program on how to detect real images, was discredited.^[12] The defense proved that the program had a 30% rate of error which was too high for the standard of proof necessary in a criminal case.^[13]The Government’s second witness was an individual that the Government claimed could visually determine whether a sexually explicit image was of an adult or a minor.^[14] He was not allowed to testify as a witness.^[15] The Judge said, "I have serious doubts as to whether a person visually studying the images in this case can distinguish real pictures from manipulated or wholly virtual ones with the level of confidence required in a criminal prosecution." ^[16]

18 U.S.C. § 2252 prohibits the production, transportation, or knowing receipt or distribution of any visual depiction "of a minor engaging in sexually explicit conduct." ^[17] For the purposes of Title 18, 18 U.S.C. § 2256 defines a "minor" as any person under the age of eighteen years.[18]

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[1] Martha L. Arias, Computer Generated Child Pornography Images Still Represent a Gap in U.S. Law, Internet Business Law Services, January 15, 2007.
[2] 516 U.S. 869 (1995).
[3] Id.
[4] Arias, supra note 1.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] 18 U.S.C. 2252 (2005).[18] 18 U.S.C. 2256 (2005).