Criminal law - expert testimony not required to distinguish pornographic images of real children from virtual children - United States v. Wilder.

• Author: Duhaime, Gretchen L.

Preventing child abuse is an important government interest that justifies excluding child pornography, as a class of speech, from First Amendment protection. (1) Nonetheless, the First Amendment continues to protect computer-generated or virtual child pornography because its creation does not harm real children and therefore causes no child abuse. (2) In United States v. Wilder, (3) the United States Court of Appeals for the First Circuit considered whether technical expert testimony is required to prove beyond a reasonable doubt that an image actually depicts a real child. (4) The court reaffirmed its previous decisions that fact-finders are capable of determining whether an image is real or virtual without expert testimony. (5)

Federal agents conducting an investigation into online child pornography identified Darren Wilder as a subscriber to a pay-for-membership Web site named "Lust Gallery: A Secret Lolitas Archive" (Lust Gallery), which contained thousands of sexually explicit pictures of children. (6) Lust Gallery subscription files and Wilder's credit-card records showed that in March 2003, Wilder purchased a one-month subscription to Lust Gallery while on supervised release from a previous conviction for child pornography possession. (7) In January 2004, agents obtained and executed a search warrant for Wilder's home, discovering child pornographic images and video files on Wilder's computer, which he had downloaded from Internet newsgroups and Web sites. (8) Wilder's computer also recorded over 14,000 image downloads from the newsgroup "Youth and Beauty," thousands from another newsgroup named "Hussy," and evidence of a posting Wilder made to the newsgroup "alt.sex.young" containing four images of child pornography. (9)

The United States District Court for the District of Massachusetts convicted Wilder for possession, transmission, and receipt of child pornography in violation of 18 U.S.C. [section][section] 2252(a)(1)-(2) and 2252(a)(4)(B) and sentenced him to fifteen years in prison, followed by five years of supervised release. (10) Wilder appealed to the United States Court of Appeals for the First Circuit, challenging his conviction on five separate grounds. (11) One of Wilder's claims asserted that the government did not present expert testimony regarding the authenticity of the images, and he therefore argued that the jury had no basis for finding that the images were not computer generated. (12) The court reiterated its previous holding that the government is not required to produce an expert witness to prove that the images depict real children and that the jury can determine whether the images are computer generated based solely on the images themselves. (13)

The necessity of the distinction between child pornography containing images of real children and computer-generated images is rooted in First Amendment jurisprudence. (14) In New York v. Ferber, (15) the Supreme Court held that the government's interest in protecting children from sexual abuse and exploitation justifies removing First Amendment protection from child pornography, even if the material is not obscene under the Miller v. California (16) test. (17) In addition to the adverse effects of participating in pornography, the image serves as a permanent reminder of that abuse. (18)

As technological advances facilitated the creation and modification of virtual images, Congress passed the Child Pornography Prevention Act of 1996 (CPPA). (19) The CPPA prohibited child pornography if "such visual depiction is, or appears to be of a minor engaged in sexually explicit conduct" with the goal of removing both real and virtual images from the marketplace and thereby achieving the governmental purpose of protecting children from sexual abuse. (20) Ashcroft v. Free Speech Coalition, (21) however, struck down the "appears to be" language as violating the First Amendment protection of virtual child pornography. (22)

The Court's ruling in Free Speech Coalition presented an evidentiary puzzle for prosecuting child-pornography-possession cases. (23) The Court stressed that the burden of proof still fell squarely on the government, regardless of whether the defendant claimed the images could have been computer generated, and it declined to establish a bright-line rule requiring technical expert testimony on the character of the image. (24) After Free Speech Coalition, all six circuits to consider this issue held that technical expert testimony is not required. (25)

In response to Free Speech Coalition, Congress passed the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT). (26) PROTECT replaced the troublesome "appears to be" language with "is indistinguishable from" and modified the legislative intent from preventing sexual abuse to more effectively...