Criminal Law - Expert Testimony Not Required to Distinguish Pornographic Images of Real Children from Virtual Children - United States V. Wilder

By Duhaime, Gretchen L. | Suffolk University Law Review, Spring 2009 | Go to article overview

Criminal Law - Expert Testimony Not Required to Distinguish Pornographic Images of Real Children from Virtual Children - United States V. Wilder


Duhaime, Gretchen L., Suffolk University Law Review


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Criminal Law - Expert Testimony Not Required to Distinguish Pornographic Images of Real Children from Virtual Children - United States V. Wilder
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.