The United States Court of Appeals for the First Circuit affirmed a defendant’s conviction of possessing child pornography after rejecting his argument that the District Court should have allowed his expert witness to testify. The decision, United States v. Gerald J. Silva, essentially holds that the jurors were just as capable as the expert of recognizing pornography when they saw it.

Facts of the Case

After shutting down a website that was distributing child pornography, Canadian authorities seized the website owner’s business records and provided them to the United States Postal Inspection Service. Gerald Silva’s name and address appeared in those records. After his home was searched, Silva was charged with and convicted of six counts of receiving child pornography and one count of possessing child pornography.

Silva was one of 348 customers of the website to be charged with a crime. They included “six law enforcement officials, nine religious leaders, 40 school teachers, three foster parents, 32 children volunteers and nine health professionals.”

Ironically, Silva worked as a Rhode Island state probation officer assigned to supervise sex offenders. Silva claimed that he ordered videos from the website for professional reasons.

Meaning of Child Pornography

Federal law defines child pornography as including any visual depiction of a minor engaging in sexually explicit conduct. A federal statute defines “sexually explicit conduct” to include the “lascivious exhibition of the genitals or pubic area of any person.”

The requirement of a “lascivious exhibition” is important. It protects parents from prosecution who take photographs of their children taking a bath or playing in the nude. The word “lascivious” generally has the same meaning as the word “lewd,” but neither term is self-defining.

Federal courts generally agree that a “lascivious exhibition” of genitals occurs when the genitals are the focal point of an image. A video of a child touching his or her genitals, a photograph that shows a close-up view of genitalia, or the image of a child in a sexually suggestive pose will generally be regarded as lascivious. On the other hand, a more distant photograph of a nude child whose legs are pressed together and who is swinging on a swing set probably will not be considered lascivious.

The Proposed Expert Testimony

Some images fall into a gray area between pornographic nudity and permissible nudity. In particular, whether a pose is innocent or sexually suggestive is often a matter of opinion. Silva’s attorney hoped to exploit that gray area by using an expert witness to bolster the contention that certain images were not pornographic.

Silva’s lawyer proposed to call John Leo, a retired Professor of English at the University of Rhode Island, as an expert in film and video. Professor Leo would have testified that the settings for the videos were not sexually suggestive. Leo would also have testified that the children’s poses and conduct were not sexually suggestive.

The Legal Test

Federal courts follow Rule 702 of the Federal Rules of Evidence in deciding whether expert testimony should be admitted in a federal trial. Rule 702 allows a court to admit expert testimony if the testimony:

• would help the jury understand the evidence or decide a fact that is important to the verdict;

• is based on sufficient facts or data;

• is the product of reliable principles and methods; and

• is based on a reliable application of those principles and methods to the facts of the case.

The first question was at issue here: whether Professor Leo’s opinion would have helped the jury understand whether the videos constituted child pornography.

The Decision

The court of appeals held that Professor Leo was in no better position than the jurors to form an opinion about the videos. He did not purport to have an opinion of the videos’ artistic merit or of the reason a buyer would want to watch the videos. He did not suggest that he knew why the producer of the videos created them.

According to the court of appeals, the jurors were just as capable as Professor Leo of watching the videos and deciding whether the conduct and poses that they depicted were sexually suggestive. For that reason, Professor Leo’s opinion was not deemed helpful to the jury and his testimony was disallowed.

Given the language of the court of appeals’ opinion, a different result might have been reached if Silva had called an art historian or a filmmaker who could testify that the videos had artistic merit and that they fit within an artistic tradition that was unrelated to pornography. Testimony that the focus of the work as a whole is artistic rather than sexually titillating might satisfy Rule 702. Of course, whether any expert exists who would have formed that opinion after viewing the videos that Mr. Silva possessed is another question.