Supreme Court Cases: 1991-1992 Term

By McCormack, William U. | The FBI Law Enforcement Bulletin, November 1992 | Go to article overview

Supreme Court Cases: 1991-1992 Term


McCormack, William U., The FBI Law Enforcement Bulletin


The 1991-1992 term of the U.S. Supreme Court produced a number of cases of interest to law enforcement. The Court decided cases concerning the law of entrapment in a Federal child pornography sting operation, the admissibility of statements made by a child sexual assault victim to police officers and others, and the admissibility at a murder trial of the "battered child syndrome."

The Court ruled in cases concerning the Government's obligation under the sixth amendment's Speedy Trial Clause to bring to trial a charged defendant, the effect of the Double Jeopardy Clause of the fifth amendment on complex drug prosecutions, and the jurisdictions of U.S. courts to try a Mexican citizen abducted to the United States. It also decided a case interpreting the scope of a law enforcement officer's qualified immunity from a civil suit alleging a constitutional violation.

With regard to first amendment issues, the Court considered two cases. One case struck down an ordinance designed to prevent the bias-motivated display of symbols, such as burning crosses; the other invalidated a parade permit scheme designed to recoup expenses incurred for police protection and administrative costs.

Jacobson v. United States, 112 S.Ct. 1535 (1992)

In Jacobson, the Court overturned the Federal child pornography conviction of a Nebraska farmer because he was entrapped by a U.S. Postal Service child pornography sting operation. The case began in February 1984, when the defendant legally ordered and received two magazines containing photographs of nude preteen and teenage boys from a California adult bookstore. Subsequently, Congress changed the law and made it illegal to receive sexually explicit depictions of children through the mail.

The U.S. Postal Service obtained the defendant's name from a mailing list seized at the adult bookstore and then began an undercover operation to explore the defendant's willingness to order illegal child pornography. Over the next 2 1/2 years, the Postal Service and Customs Service, through five fictitious organizations and a bogus pen pal, repeatedly contacted the defendant through the mail, exploring his attitudes toward child pornography, disparaging the legitimacy and constitutionality of efforts to restrict the availability of sexually explicit material, and offering him the opportunity to order illegal child pornography.

Twenty-six months after the Postal Service's first mailings to the defendant, the Government still had no evidence that he illegally possessed or received child pornography in the mail. Rather, the defendant's only responses to some mailings revealed certain personal inclinations, including a predisposition to view photographs of preteen sex and a willingness to promote a given agenda by supporting lobbying organizations. Eventually, however, the defendant ordered a magazine containing child pornography from a catalogue provided during the Postal Service's sting operation.

The defendant was tried and convicted of the illegal receipt of the pornographic magazine despite his entrapment defense. On appeal, the Supreme Court reversed, finding that the defendant was entrapped as a matter of law. The Court ruled that the prosecution failed to show, beyond a reasonable doubt, that the defendant was predisposed to receive child pornography through the mail prior to the time when the Government first contacted him.

The Court noted that in typical drug stings or Government-sponsored fencing operations, where the defendant is simply provided with the opportunity to commit a crime, the entrapment defense is of little use to the defendant because the ready commission of the criminal act amply demonstrates the defendant's predisposition. However, in this case, the Court concluded that the defendant's 1984 lawful purchases and his expression of certain generalized personal inclinations to view teenage sexual material was not sufficient to prove, beyond a reasonable doubt, that he was predisposed to commit the crime charged, independent of the Government's coaxing. …

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