Academic journal article The University of Memphis Law Review

Clear Error or De Novo-State V. Whited: Did the Court Inadvertently Introduce a New Appellate Standard of Review in Tennessee in Its Opinion in a Child Pornography Case?

Academic journal article The University of Memphis Law Review

Clear Error or De Novo-State V. Whited: Did the Court Inadvertently Introduce a New Appellate Standard of Review in Tennessee in Its Opinion in a Child Pornography Case?

Article excerpt

Child pornography first received national attention in the late 1970s, and Congress and state legislatures reacted by criminalizing the production of pornography involving children.1 In New York v. Ferber, the Supreme Court of the United States upheld one of those new state statutes and found that "the States are entitled to greater leeway in the regulation of pornographic depictions of children" because of the important objective of preventing "sexual exploitation and abuse of children."2 Modeled after the statute upheld in Ferber, the Tennessee child pornography statute criminalizes the use of a minor in a production that includes the minor engaging in sexual activity;3 however, Tennessee's statute is broader than both the statute upheld in Ferber and the federal child pornography statute.4 In the aftermath of Ferber, courts looked for objective factors by which to judge whether the subject child pornography constitutes a minor engaging in sexual activity, and one federal district court, in its decision in United States v. Dost,5 set out six factors that numerous courts around the country subsequently used.6 In 2016, the Tennessee Supreme Court reviewed the convictions of Thomas Whited ("Defendant"), who was prosecuted and convicted under Tennessee Code Annotated section 39-17-1005 for videotaping his twelve-year-old daughter and her teenage friend on numerous occasions with a hidden camera while they were undressing in a bathroom or bedroom.7 The court reversed the convictions and held: (1) that the lower courts should not use the Dost factors; (2) that the subjective intent of a defendant is not relevant in evaluating whether the material depicts a lascivious exhibition; (3) that the courts should review a jury's finding of a lascivious exhibition de novo; and finally, (4) using that standard of review, that the videos do not depict a lascivious exhibition. State v. Whited, 506 S.W.3d 416, 418-19, 427 (Tenn. 2016). In deciding what standard of review to apply, the court looked to federal precedent and debated between applying a clear error standard and de novo standard.8 Ultimately, the court decided to apply a de novo standard to this case.9 In even considering a clear error standard, however, the court introduced a new standard of review into Tennessee jurisprudence, as the Tennessee appellate courts have never before applied a clear error standard. This introduction is particularly noteworthy for the court did not even acknowledge its departure from Tennessee's current jurisprudence.10

The federal courts are currently split over whether to apply a clear error standard of review or a de novo standard of review in child pornography cases; before discussing the split, however, it is important to understand the history of child pornography statutes in the United States, their exception from First Amendment protection, and the Tennessee child pornography statutes. Building on the obscenity exception to the First Amendment,11 the U.S. Supreme Court created a broader exception for the criminalization of child pornography when it examined New York's child pornography statute in New York v. Ferber.12 Recognizing the need to protect "the welfare of children," the Supreme Court held that, for child pornography, "[a] trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole."13 Although broader than the obscenity exception, the Court held that "[t]he category of 'sexual conduct' proscribed must also be suitably limited and described."14 The New York statute criminalized the use of a child in a performance that includes "the lewd exhibition of the genitals" by the child.15 The Court upheld this phrasing under the newly announced standard for child pornography.16

After the decision in Ferber, the Tennessee legislature enacted Tennessee Code Annotated section 39-17-1005 and modeled it after the statute the Court upheld in Ferber. …

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