It is a crime to possess child pornography on a computer. If someone is charged with this crime(or any crime), it is important to be represented by a zealous advocate who will put aside any personal opinions or feelings about the nature of the charges and provide an aggressive defense.  In the following case, the trial court and prosecution ignored the law and procedures that protect a defendant.  Forturnately, the SJC called them on their decisions and reversed the convicions. 

In Commonwealth v. Rollins, the SJC reversed the defendant’s convictions on six counts of possession of child pornography. There were four trial errors that created a substantial risk of a miscarriage of justice.  The defendant was charged after a computer repair person discovered “photographs depicting nude and scantily clad young girls.” There were 1200 photographs and seven images were the basis for six charges on the complaint.  The Court ruled “that where as here 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. Six separate convictions constituted multiple punishments for the same offense in violation of the defendant’s constitutional and common-law rights to be free from double jeopardy.”

There were four trial errors requiring reversal of the defendant’s convictions.   First, the judge abused her discretion in admitting “five uncharged photographs as a ‘representative sample’ of the approximately 1,200 images that the police had viewed.”  Several of those photographs “depicted young girls … posed in highly sexualized positions even more provocative than the nude images underlying the charges.” Therefor, “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.’” The Court noted that these comments 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.” The prosecutor’s selective emphasis on harm to individual children “painted an incomplete, and thus inaccurate, picture of the legislative intent.”  The fourth error was the judge’s inadequate 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.” Also, the judge failed to inform the jury that “‘proof that an image contains nudity, alone, is not sufficient for a conviction.’”