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Comments on Criminal Issues
August 22, 2007
Expert Testimony in Child Pornography Cases
In a previous Web Front Page Column (CHILD PORN: WHAT IS VIRTUAL, WHAT IS REAL), it was pointed out that in federal child pornography prosecutions under 18 U.S.C. § 2252(a)(B) the Government is under no statutory or constitutional obligation to present “expert testimony” that the alleged pornographic images are of a real child. See, United States v. Rodriquez-Pacheco, 475 F.3d 434 (1st Cir. 2007). While the government has a constitutional burden to prove beyond a reasonable doubt that the alleged pornographic images are of a real, non-virtual child, the matter is an issue of fact to be decided by the jury and those determinations can be based on the actual images, videotapes, photographs, etc., absent expert testimony. Id,, at 444.
Article 43.26(a) of the Texas Criminal Code (Vernon 2003) provides that “a person commits an offense if: (1) the person knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct.”
The United States Supreme Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389 (2002) held unconstitutional those provisions of § 2252(a)(B) that extended child pornography to any sexually explicit image that “conveys the impression” that it depicts “a minor engaging in sexually explicit conduct.” Id., 535 U.S. at 258. See also: United States v. Rodriquez-Pacheco, supra.
The federal courts were faced with a litany of claims in the wake of Free Speech Coalition that this Supreme Court mandate required the Government to produce expert testimony that the alleged pornographic image is of a real, non-virtual child; however, as pointed out in Rodriquez-Pacheco, these claims were uniformly rejected by every federal circuit that addressed the question.
The Texas courts of appeals were also called upon to address the Free Speech Coalition-spawned “expert testimony” issue. See, e.g., Porath v. State, 148 S.W.3d 402 (Tex.App.-Houston [14th] 2004). The court in Porath first addressed of whether Art. 43.26(a) required that the alleged pornographic image be of a real, non-virtual child:
In Texas, it is an offense to knowingly or intentionally possess "visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct" if the person "knows that the material depicts the child" engaging in sexual conduct. TEX. PEN. CODE ANN. § 43.26(a) (Vernon 2003). Unlike the federal statute, the plain language of the Texas statute indicates that it prohibits only possession of material that depicts an actual child, not material that merely "appears" to depict a child. Id., at 415.
The appeals court in Porath then had to address the issue of the state’s burden of proof. The defendant was discovered with a 15-year-old boy in a park located in Fort Bend County by Sergeant Scott Schultz of the Sugar Land Police Department in July 2000. An officer named Kevin Brownlee was assigned to investigate the matter. Brownlee learned that the defendant had met the young man through an Internet chat room and that some of their conversations had been sexual in nature. Id., at 406.
Armed with this information, Brownlee sought, and secured, a search warrant for defendant’s residence. The appeals court addressed the results of that search:
Brownlee and three other detectives conducted the search at appellant's residence. The officers seized a computer, a white box containing ten diskettes, an assortment of videotapes and empty videotape boxes, twenty-five magazines, a gay and lesbian yellow pages directory, a green ice chest, one red golf club cover, one condom, eight computer diskettes, six compact discs, and two cameras.
Nickie Drehel, a computer forensics officer, retrieved evidence from the two computers, diskettes, and compact discs. On the diskettes, Drehel found a large number of photographs, some of which appeared to be child pornography. A forensic graphic artist with the Harris County District Attorney's office testified that the images taken from appellant's computer were actual photographs and not virtual images.
It was on the basis of this evidence that the defendant was charge with a § 43.26(a) violation. Porath’s defense counsel filed a motion that Art. 43.26(a) was unconstitutional in that it was overly broad, vague, and violated the First Amendment to the United States Constitution because it does not distinguish between “possession of actual child pornography and child pornography created by digital or computer imaging.” Id., at 407. The appeals court rejected the overly broad-vague claim, saying:
When reviewing the constitutionality of a statute, we presume the statute is valid and that the legislature has not acted unreasonably or arbitrarily in enacting it. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). Appellant bears the burden to show the statute is unconstitutional. See Ex parte Anderson, 902 S.W.2d 695, 698 (Tex. App.--Austin 1995, pet. ref'd). The statute must be upheld if a reasonable construction can be ascertained that will render the statute constitutional and carry out the legislative intent. See Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. 1979).
In construing whether a law is vague and overbroad, we keep in mind the elementary principle of statutory construction: we interpret a statute in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning leads to absurd results. Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim. App.), cert. denied, 528 U.S. 1021, 145 L. Ed. 2d 411, 120 S. Ct. 531 (1999). In determining plain meaning, "words and phrases shall be read in context and construed according to the rules of grammar and common usage." TEX. GOV'T CODE ANN. § 311.011(a); Dowthitt v. State, 931 S.W.2d 244, 258 (Tex. Crim. App. 1996). Id. at 414.
In conjunction with the motion challenging the constitutionality of § 26.23(a), defense counsel also filed a “Motion for Pretrial Determination of Admissibility.” The defense counsel argued that the State was “required to present expert testimony that the images seized from appellant were actual images of children and not computer-generated images of ‘virtual children’.” Id., at 415. Defense counsel premised his argument on the theory “whether the photographs were of actual children, rather than ‘morphed’ or virtual images, is technical or specialized evidence which must be based on reliable methodology.” Id.
At the pretrial hearing on defendant’s motion the State presented two witnesses who testified that the images were of real, non-virtual children. While one witness, Nickie Drehel, a forensic computer analysis with the Houston Police Department, testified about how the images had been retrieved from defendant’s computer, he did not testify as to whether the images “morphed” or “altered.” A graphic artist with the Harris County District Attorney’s Office, Juan De Anda, testified that the images were of real, non-virtual children and that computer technology had not advanced sufficiently to produce realistic images of human beings. De Anda testified that he “knew of no other expert in his field who used this reasoning.” Id.
The appeals court went directly to the heart of the issue. Consistent with federal appellate case law, the Porath court found that Free Speech Coalition did not impose a broad requirement on the government to present expert testimony that the unlawful image depicts a real child. Id. See, e.g., United States v. Slanina, 359 F.3d 356, 357 (5th Cir. 2004)(per curiam)[Free Speech Coalition did not establish a per se rule that, absence direct evidence of identity, expert testimony is required to establish that the images of alleged child pornography are of real, and not virtual, children].
The appeals court also adopted the reasoning on the Tenth Circuit Court of Appeals that “juries are still capable of distinguishing between real and virtual images.” See, United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir. 2003). The appeals court then cited with approval the position of the Eighth Circuit Court of Appeals that a jury can make an “actual child” determination based solely on the images themselves without expert testimony. See, United States v. Deaton, 328 F.3d 454, 455 (8th Cir. 2003). Accord: United States v. Hall, 312 F.2d 1250, 1240 (11th Cir. 2002)
The Porath court also joined ranks with two state court decisions in which it was held in child pornography cases that “the trier of fact may make a determination as to how an image was produced from the image itself.” See, People v. Normand, 345 Ill.App.3d 736, 803 N.E.2d 1099, 1103 (Ill.App.Ct. 2003). See also: Commonwealth v. Simone, 63 Va. Cir. 216, 2003 WL 22994238, at 22-23 (Va.Cir.Ct. 2003)[“Commonwealth may seek to rely upon the images themselves without the necessity for expert opinion.].
Against this backdrop, the Porath court ruled that “the trial court is capable of reviewing the evidence without the benefit of expert testimony, to determine whether the State met its burden to show the images depicted real children as opposed to ‘virtual children’,” Id.
The appeals court in Franco v. State, 2005 Tex.App. LEXIS 24552 (El Paso) followed the lead of the Porath court (which involved a guilty plea case) in a jury trial case. The Franco court held:
Appellant argued that according to Ashcroft, the State had to prove that the alleged children in the images were actually children. Appellant asserted that the State failed to meet its burden since no witness or expert was able to testify that the pictures were of real children. Further, Appellant complained that no witness was able to testify that the images were not computer generated.
Here, Appellant was charged with possession of child pornography under the Texas Penal Code, not the CPPA, and the plain language of the Texas statute indicates that it prohibits only possession of material that depicts an actual child, not material that merely "appears" to depict a child. See TEX. PENAL CODE ANN. § 43.26(a); Webb v. State, 109 S.W.3d 580, 583 (Tex.App.--Fort Worth 2003, no pet.). This conclusion is also supported by the legislative history of the statute. See Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 674, 75th Leg., R.S. (1997); Webb, 109 S.W.3d at 583. In fact, the Fort Worth Court of Appeals has held that the Texas statute prohibits only possession of visual materials depicting real children. Webb, 109 S.W.3d at 583. The court noted that the statute required the State to prove (1) that the Appellant possessed visual material depicting a child under the age of eighteen engaging in sexual conduct and (2) that Appellant knew that the material depicted a child engaging in sexual conduct. See TEX. PENAL CODE ANN. § 43.26; Webb, 109 S.W.3d at 583.
Here, Appellant challenged the sufficiency of the evidence only to prove that the images were of actual children. Viewing the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found the essential elements of possession of child pornography beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789. First, the jury heard evidence from Officer Stefan Happ that he believed the images were of actual children and not computer generated. The jury had the full responsibility of resolving any conflicts in the evidence and assigning credibility to witnesses. See id. at 319, 99 S. Ct. at 2789; Adelman, 828 S.W.2d at 421. Further, the jury was shown the images taken from Appellant's computer, as well as mini-movies. The jury was allowed to inspect the images under section 43.25 to determine whether the depicted child was younger than 18. See TEX. PENAL CODE ANN. § 43.25(g). The jury was also allowed to use their common sense and apply their common knowledge, observation, and experience from the ordinary affairs of life to determine that the images depicted actual children, rather than computer-generated ones. See Griffith, 976 S.W.2d at 690. Accordingly, we find that the evidence is legally sufficient to sustain Appellant's conviction for possession of child pornography and overrule his sole point of error on review. Id., 11-13 [Emphasis added].
Porath and Franco make it clear that Texas has joined the consensus of the federal and state courts who have addressed, and rejected, a prerequisite prosecutorial burden to produce “expert testimony” in child pornography cases. The legal consensus is that the trial court and jury are the trier of fact on the issue of whether alleged pornographic images are of real, non-virtual children. The courts have unanimously concluded that the determination of whether an image is a real child or a virtual child boils down to the common sense of the jury based on its common knowledge, experience and observation. Id.
Further, the Texas courts have concluded that “when it becomes necessary to determine whether a child who participated in sexual conduct was younger than 18 years of age under sections 43.25 and 43.26, the court or jury may make this determination by any of the following methods: (1) personal inspection of the child; (2) inspection of the photograph or motion picture that shows the child engaging in the sexual performance; (3) oral testimony by a witness to the sexual performance as to the age of the child based on the child's appearance at the time; (4) expert medical testimony based on the appearance of the child engaging in the sexual performance; or (5) any other method authorized by law or by the rules of evidence at common law. TEX. PENAL CODE ANN. § 43.25(g).” Carter v. State, 2006 Tex.App. LEXIS 10687, at 9-10 (Dallas).
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