SJC RULES CONDUCT-BASED APPROACH CONSISTENT WITH CHILD PORNOGRAPHY STATUTES

In Commonwealth v. Rollins, the Supreme Judicial Court reversed the defendant’s convictions on six counts of possession of child pornography, there were four trial errors created a substantial risk of a miscarriage of justice. The Court made a significant ruling on the proper unit of prosecution in such cases. The case arose from a computer repair person’s discovery on the defendant’s computer of a large number of photographs depicting nude and scantily clad young girls. After reviewing approximately 1,200 photographs, out of the much larger total number, the police selected seven images as the bases for the six charges against the defendant. Regarding the unit of prosecution issue, the Court ruled that where the offending photographs come from a single cache and the defendant is charged with possessing them at the same point in time, the statutory structure contemplates only a single unit of prosecution. Accordingly, the entry of six separate convictions and sentences constituted multiple punishments for the same offense in violation of the defendant’s constitutional and common-law rights to be free from double jeopardy. The Court explained that Massachusetts statutes were aimed at eradicating the harmful societal effects posed by the circulation of child pornography, including, but not limited to, the harm caused to the individual children depicted therein. Accordingly, the Court rejected the Commonwealth’s victim-based approach to determining the appropriate unit of prosecution …, concluding instead that a conduct-based approach was more in keeping with the broad intent of the statute.

The four trial errors requiring reversal of the defendant’s convictions were as follows. First, the judge abused her discretion in admitting, in addition to the seven charged images, five uncharged photographs as a ‘representative sample’ of the approximately 1,200 images that [the police had] viewed. The representative photographs did not contain nudity, but several of them depicted young girls … posed in highly sexualized positions even more provocative than the nude images underlying the charges. Thus, the Court opined, there was a substantial risk that the jury would use the uncharged photographs as evidence of the bad character of the defendant. The second error was the improper testimony of the detective who had viewed the 1,200 images that he “could have charged the defendant with many counts but decided after six counts, that would be enough.  Essentially, the jury were left to form the unfounded conclusion that the defendant would be fortunate to be convicted on only six counts — regardless of whether those six convictions corresponded precisely to the images that the detective  selected for each count. The third error was an inappropriate comment by the prosecutor in closing argument, offering his own view that the Legislature enacted the statute because every time someone possesses and looks at those pictures, that child is harmed.  These comments, opined the Court, violated the principles that closing arguments must not misstate legal principles and must avoid interjecting personal opinions or playing to the emotions of the jury. In the Court’s view, the prosecutor’s selective emphasis on harm to individual children painted an incomplete, and thus inaccurate, picture of the legislative intent which was not primarily victim-based. The fourth error was the inadequacy of the judge’s instruction on the definition of child pornography. While the judge told the jury that the statutory term “lewd” meant indecent or offensive, she failed to provide a practical roadmap — such as the Dost factors– to aid the jury in discerning whether the stated definition of lewdness had been satisfied. In addition, the judge failed to inform the jury that proof that an image contains nudity, alone, is not sufficient for a conviction.

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