Fourth Circuit Joins Circuit Consensus On Admission Of Expert Testimony Regarding Age Of Child Pornography Victims

In a transporting and possessing child pornography prosecution, admitting expert testimony regarding the authenticity of child pornography; noting that the First, Eighth, and Eleventh Circuits “have assumed that the testimony of experienced forensic or medical professionals establishing the authenticity of alleged child pornography constitutes appropriate expert testimony,” in United States v. Bynum, __ F.3d __ (4th Cir. May 5, 2010) (No. 08-4207)

Nearly a decade ago, the Supreme Court weighed in on the criminalization of “virtual child pornography or morphed child pornography” in which computer-generated images or the bodies of adults with childrens’ face were used as child pornography. The Court took the position that laws prohibiting the possession of child pornography must be those images that are of real children and not “virtual” or “morphed” to appear to be children. In setting this standard, the Court created a problem of proof that is still being sorted out by the circuits. Recently, one circuit noted that there seemed to be some sense of cohesion in an approach growing among the circuits. In a recent child pornography case, the Fourth Circuit noted the role of expert evidence in facilitating proof of crimes involving child pornography The issue often addressed by these witnesses involves how authorities could know that the children in the pornographic images are actually real children.

In the case, defendant Bynum was apprehended by an FBI Special Agent who was working undercover in a child pornography online chat group. Various depictions the defendant allegedly posted focused on child pornography and after a warranted search of the defendant’s residence over 5000 photos and 150 videos of child pornography were found. He was indicted for transporting child pornography in interstate commerce (by uploading it to Yahoo’s out-of-state servers) and possessing child pornography.

Before trial, the defendant moved “ to exclude proffered expert Government testimony as to whether the images in question depicted real children or were computer-generated, and thus protected under the First Amendment.” The trial judge denied the motion. Accordingly, at trial “the Government did present substantial extrinsic evidence to establish that the children depicted were real minors, including testimony drawn from the personal investigative experience of various officers as to the identity and age of some of the children in the photos Bynum was alleged to have transported or possessed, and testimony from FBI Analyst Peter Smith to the effect that the images and videos in question depicted real children and did not appear to be computer-generated. Again, a rational fact finder could certainly conclude that the Government proved beyond a reasonable doubt that actual minors appeared in the photos and videos.” The jury found the defendant guilty and the defendant appealed contending in part that the trial judged had “erred in admitting the expert testimony of Analyst Smith because the Government failed to demonstrate the reliability of his methods of determining the authenticity of child pornography. ” Bynum, __ F.3d at __.

The Fourth Circuit affirmed the defendant’s conviction and concluded that the role of experts in child pornography cases was similar to expert testimony on drug code words in drug cases. As the circuit explained this similarity:

“If, as we and other courts have held, ‘law enforcement officers with extensive drug experience are qualified to give expert testimony on the meaning of drug-related code words,’ it follows that forensic photographic investigators with extensive child pornography experience are qualified to give expert testimony as to whether images depict real children. For Bynum’s claim that Analyst Smith’s ‘method has not been tested, or subject to peer review and publication,’ and ‘does not have a[n] ... error rate,’ also is true of drug-code testimony. And as we observed in Wilson, the Supreme Court has admonished that ‘the test of reliability is flexible’ and ‘the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.’ “ We concluded, therefore, that although “[e]xperiential expert testimony … does not rely on anything like a scientific method,” such testimony is admissible under Rule 702 so long as an experiential witness “explain[s] how [his] experience leads to the conclusion reached, why [his] experience is a sufficient basis for the opinion, and how [his] experience is reliably applied to the facts.”

Bynum, __ F.3d at __ (citing United States v. Wilson, 484 F.3d 267, 274-75 (4th Cir. 2007) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42 (1999))

Applying these principles to defendant Bynum’s case, the circuit expressed “ little trouble concluding that the district court did not abuse its discretion in qualifying [Analyst Smith] as an expert.” The circuit noted that evidence of the agent’s qualifications to serve as an expert witness on child pornography was considerable:

Analyst Smith testified at length as to his 18 years with the FBI, as well as his training and 13 years of experience in examining “questioned photographic evidence,” his completion of proficiency testing in image authentication, and his qualification as an expert 35 times in the past. He further testified as to exactly the steps he takes in determining the authenticity of images under the approved FBI “checklist,” including ascertaining an image’s resolution and focus, examining its sharpness and depth, comparing it to images in the FBI database, and identifying in the image certain human characteristics-like skin, teeth, ears, and hair-that are difficult to recreate by computer. Finally, Analyst Smith testified that two other FBI employees always review his work, and that he has never identified an image as real that was later determined to be computer-generated. These ample indicia of reliability preclude a finding that the district court abused its considerable discretion in qualifying Analyst Smith as an expert.

Bynum, __ F.3d at __.

The conclusion that the expert was qualified to testify in the child pornography case was amply supported by two other factors. First, allowing such expert witnesses seemed to be part of a circuit consensus. The Fourth Circuit cited three other circuits. It also noted that “[e]ven the Supreme Court that “have assumed that the testimony of experienced forensic or medical professionals establishing the authenticity of alleged child pornography constitutes appropriate expert testimony. Bynum, __ F.3d at __ (citing Ashcroft v. Free Speech Coalition, 535 U.S. 234, 254 (2002)).

The cases cited by the Circuit included:

  • First Circuit: United States v. Rodriguez-Pacheco, 475 F.3d 434, 437-39 (1st Cir. 2007) (“The government offered evidence on a sample of the 234 pornographic images taken from defendant’s computer. The government presented a pediatrician, Dr. Pedro Jaunarena-Perez, who testified using the Tanner scale that ten of the images obtained from defendant’s computer were of children under age eighteen…. The government also presented expert testimony on the issue of whether the images were of real, non-virtual people. The court accepted Dr. Richard Vorder Bruegge of the FBI as an expert; he testified both as to the methodology to be used in looking at images to determine whether the image was of a real person and to his conclusions that Exhibits 5 through 15 and Exhibit 17 contained images of real people.”)
  • Eighth Circuit: United States v. Broyles, 37 F.3d 1314, 1317-18 (8th Cir. 1994) (“Additionally, the testimony of several witnesses is supportive of the jury’s conclusion covering the age of the minors who appeared in “Two on One.” While Becky Powers, a Postal Inspector, testified that she had no personal knowledge of the age of the individuals appearing in the video, she also stated that she had “seen enough child pornography where I think I can give the approximate age of a child in a child pornography movie,” and noted that she was “pretty familiar” with the development of children from three of her own and three stepchildren. In some of the related training she had received “they say what body features to look for …, and that’s what I try to look for in these movies.” Dr. Monteleone, a professor of pediatrics at St. Louis University School of Medicine with a specialty and board certification in pediatric endocrinology and Director of the Child Protection Unit at Cardinal Glennon Children’s Hospital, testified basing his conclusions on specific features he observed on the video. In his opinion, one of the girls and the boy definitely were under age eighteen, with an estimated age for the girl of from nine to fourteen years and of the boy, who was clearly in a pre-pubertal state, from eight to nine years.”)
  • Eleventh Circuit: United States v. Anderton, 136 F.3d 747, 750 (11th Cir. 1998) (“The government’s expert witness, Dr. Marsha Sturdevant, a medical doctor with expertise in adolescent growth and development, testified that, in her opinion, the children depicted in the videotape were between the ages of eleven and fifteen and a half. The Andertons’ expert witness, Dr. Jack Turner, a clinical psychologist and sex therapist, testified that, in his opinion, the ages of the individuals in the videotape could not be determined because the pornography industry is “notorious for picking young looking people.” However, Dr. Turner admitted on cross examination that he had no medical training or experience evaluating female adolescent growth and development. * * * This evidence was sufficient to submit the matter to the jury for a determination. The jury was free to evaluate both experts’ testimony and conclude that the government’s expert was more reliable and credible.”)

In noting this trend in the use of expert evidence in child pornography cases, the Fourth Circuit also pointed to how this was rooted in the Supreme Court’s confidence in the role of experts. In Ashcroft v. Free Speech Coalition, Justice Kennedy, writing for the majority, seemed to dismiss concerns that these cases would be hard to prove. He noted specifically that despite feared difficulties in child pornography cases, prosecutors had adjusted but even then “[e]xperts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging.” The necessary solution, the argument runs, is to prohibit both kinds of images.*255 The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 254 (2002).

In any event, in Bynum’s case, the circuit found no error to exist whether or not expert testimony had been admitted. Even if improperly admitted, the circuit found that it was harmless error “because the Government presented to the jury the images and video, and testimony from people who knew the actual children depicted in them.” Bynum, __ F.3d at __.

Federal Rules of Evidence