The Texas Prosecutor, Jan-Feb 2018

How much child porn evidence is too much?

Child pornography cases are just awful. There’s no other way to put it.1 Judges and juries don’t want to hear them, and most prosecutors do not want to handle them, let alone child pornography evidence. But seeking justice in these cases is vital to protect these innocent victims.
    Sentencing child-porn defendants demands a tough balancing act for prosecutors. In Dallas County, we often recommend prison sentences for even first-time offenders, but we allow them to plead guilty and ask the judge for probation in an open plea. That sets the stage for putting on a solid punishment case so the judge (or, in some cases, jury) can set a just punishment.
    There are so many variables. Defendants range from teenagers to octogenarians and can be both men and women, though a significant percentage of the cases, at least from what I’ve seen, are male perpetrators. Each image can be a separate charge, and the judge has the discretion to run the cases concurrently or consecutively. Sentencing hearings are especially difficult when the offender has a “collection” of child abuse images or when there is evidence he is trading images. Prosecutors must perform a balancing test to determine how much evidence should be presented to the judge or jury in deciding punishment. Too few images of child porn, and the fact-finder does not get an appropriate picture of the defendant’s crimes; too many, and the defendant has a solid claim of prejudice on appeal. (Plus, at some point, showing too many child porn images diminishes the horror of each picture, as the repeated viewing of them almost normalizes them.)
    My hope with this article is to provide information from my two and a half years of experience in prosecuting child pornography cases so other prosecutors might navigate how to present this type of evidence at sentencing.

Providing the full picture
Possession of child pornography is a third-degree felony,2 and sentences can be “stacked” (run consecutively) with other child pornography or child sex cases.3 “The question at punishment is not whether the defendant has committed a crime, but instead what sentence should be assessed.”4 Considerations as to punishment include the type of pornography, how the offender participates in the creation or sharing of that pornography, the sheer volume of images or videos, and whether the offender grasps the severity of his crime.
    The fact-finder needs to understand what type of child pornography the defendant has possessed or promoted. “Type?” you ask. Sadly, yes. There are all kinds of images, and most offenders are preferential in that they collect or view certain age groups (teenage versus prepubescent), girls or boys, videos or still images, or fetish-specific images. The judge or jury deciding the appropriate punishment should have a good understanding of whether the child abuse images involve children under age 10 or children of the same or different sex as the offender. If there are sex acts being committed against children or sadomasochistic images, that will certainly be of significance to punishment.
    The judge or jury should also be made aware of what type of participant the offender is—that is, whether he shares images, joins chat rooms with other offenders, writes or reads “screenplays” involving child characters, manipulates images with Photoshop, or in other ways records his sexualization of children. Some offenders will collect images and store them, others will view and discard them to search again another day, and still others will keep their collection in hidden folders or the computer’s recycle bin. We may also find scripts of stories and plays written out about sexually abusing children saved somewhere on offenders’ computers. These stories often rationalize the abuse by scripting that the child started it or finds it acceptable. Depending on the forensic examiner’s ability to obtain records from the electronic evidence in the case, prosecutors may be able to present a good idea of the volume of images and other evidence that the offender accesses.
    Often, as part of our examination, we will get chat room records. These can be key to showing the judge or jury what type of offender the defendant is. When child-porn collectors get together online, they encourage each other to feel as though their behavior is normal and accepted. They may have private chats for talking about or sharing images or discussing assaulting children in the real world.
    These behaviors show that an offender rationalizes his behavior and cannot grasp the severity of the offense—or worse, that he intends to do much more than merely possess these horrific images. The type of collection or “downloads list” that a forensic analysis presents can give us a good idea whether the offender is to the point where a “contact offense” is imminent. For instance, the offender might use Photoshop to incorporate his face and the face of a known child onto images of child pornography, and perhaps he spent hours and hours doing this. That would tend to show that the possession of these images is more than mere viewing and discarding. The offenders who insert themselves into the images, screenplays, and stories, it can be argued, are heading in the opposite direction of any possible recovery, and only a drastic about-face will bring the behavior to a halt.

What to present and how
It bears repeating that child pornography cases are awful for everyone involved. None of us wants to show the worst images we have ever seen to unsuspecting jurors or to a judge with whom we must work in the future. “Determining what is relevant … should be a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case.”5 Certainly the pornographic images themselves are relevant. Oftentimes, the defendant has no criminal record and no known contact offenses, which is why the defense might argue he is a good candidate for probation. The prosecutor’s job is to present the evidence to support that this violation of children is a serious offense and that the danger and damage to children should be weighed as seriously as any potential rehabilitation considerations.
    But also, “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of … unfair prejudice.”6 Well, drat.
    How, then, do prosecutors present evidence of the defendant’s crimes without prejudicing the fact-finder against him? Let’s look at some Texas examples from over the past few years. I’ve selected some published and unpublished opinions to touch on the views of different courts around our state.

Pawlak v. State7
In 2013, the Texas Court of Criminal Appeals determined the admission of thousands of extraneous-offense pornographic images was unfairly prejudicial. Having in the past stated that “sexually related bad acts and misconduct involving children are inherently inflammatory,”8 the Court also cited here that “it is possible for the admission of character evidence, though not necessarily cumulative, to cross the line from prejudicial to unfairly prejudicial based on the sheer volume of character evidence admitted.”9 A court’s ruling under Rule 403 is reviewed on appeal for an abuse of discretion.10
    In Pawlak, two exhibits were admitted in the form of disks containing 900 images and around 9,000 images respectively. The witness through whom the evidence was admitted categorized the images as gay porn with many being child porn images. While only two images were published to the jury, all of the images were ruled admitted and sent back to the jurors upon a request for the evidence during deliberation.
    The appellate court found that the judge abused his discretion in admitting all 9,900 images of pornography without regard to the amount of evidence, kind of evidence, or its source, and over the Rule 403 objection. It is important to note, however, that this decision is based on evidence produced during the guilt-innocence stage of the trial, which was for sexual assault and attempted sexual assault. The prosecutor here reasoned that the images were relevant to rebut the defendant’s claim that he was not sexually interested in males. However, the volume of images presented in the guilt phase went above and beyond any need for rebuttal. It was smart to publish only two photos to the jury for that purpose, but then all 9,900 photos were allowed to go back to the jury as they were admitted for all purposes, which then rose to the level of unfair prejudice. The appeals court cited Montgomery11 in finding that the child porn evidence had “an undue tendency to suggest that a decision be made on an improper basis.” Perhaps the court of appeals would have weighed the evidence differently had it been admitted in the punishment phase instead.

Leita v. State12
In 2016, the Court of Appeals in Corpus Christi dealt with a similar issue in determining whether the trial court abused its discretion when it admitted hundreds of extraneous pornographic images in the guilt-innocence phase over Leita’s Rule 403 and 404 objections. “Virtually all evidence that a party offers will be prejudicial to the opponent’s case, or the party would not offer it.”13 (When you think about it, that seems rather intuitive, but it was nice of them to put it in writing.) “Unfair prejudice” refers to more than the fact that the evidence has an adverse or detrimental effect on a person’s case.14 “Evidence of an extraneous sexual offense will always carry emotional weight and the danger of impressing the jury in an irrational and indelible way.”15
    In this case, the judge admitted an exhibit that included a pictorial summary of 50 videos and 87 images, all of child pornography. The appellate court distinguished the facts here with those in Pawlak as 1) involving drastically fewer images and 2) that the State used the images to prove the defendant’s intent to promote them, an element of the second-degree offense alleged. The court of appeals ruled that the trial court did not abuse its discretion in admitting the evidence over Leita’s objection because it could not “conclude that the challenged extrinsic evidence has an adverse effect on the case such that the jury’s decision may have been made on the basis that Leita was a criminal or deviant generally.”16

Cox v. State17
Also in 2016, the First Court of Appeals in Houston held that admission of 2,000 images and videos of child pornography during the guilt-innocence phase was not unduly prejudicial. In this case, the State chose to display HTML pages that contained thumbnail images of the evidence but did not publish all of them to the jury. The prosecutor made sure to put on the record that none of the images were shown in full size and none of the videos were played. Additionally, the evidence was not given to the jurors during deliberations. “Necessarily, when the State is attempting to present evidence of possession of child pornography in support of proof of an essential element of another offense, the State must be permitted to present sufficient evidence so as to not just come up to a reasonable doubt, but to move beyond it.”18
    “By the time the State has admitted sufficient evidence to firmly establish that a defendant’s possession of child pornography was not an aberration, we have no basis for believing that any subsequent addition of volume of the evidence would have anything more than a minor incremental effect on the inflammatory nature of the material.”19 This may seem like a very nice way to say that the damage has been done so go ahead and pile it on, but the continued appeals on this issue should be a cautionary tale for the future. The appeals court in Cox determined that the State’s need for the evidence to show intent outweighed the potential to irrationally impress the jury, and it cited the State’s limited publishing as well as the court’s thoughtful consideration of this balance in making the ultimate decision.

Ferguson v. State20
Also in 2016, the Court of Appeals in Beaumont held that the admission of 89 videos and 25 print images of child pornography was not an abuse of discretion.21 The appellate court focused on a Rule 403 balancing test for the existence of unfair prejudice in the sentencing phase specifically. In this case, the prosecutor called the forensic examiner to testify to his analysis of the defendant’s computer. He told the jury that the defendant downloaded 89 videos over an eight-day period, and he confirmed that each video contained child pornography. Two disks containing all of the videos were admitted into evidence. The prosecutor played portions of only six of these videos for the jurors and, in arguing defendant’s objection be overruled as to the last one, explained to the trial court that the video was important for jurors to see because it was more offensive than the others, and he would not be playing the other 83 videos.
    The State’s theory was that the defendant was a “serial downloader,” so the trial court allowed the additional 25 screen-shots of images from the videos to be admitted over Ferguson’s objection. The prosecutor’s great job of narrowing down what to show the jury and judge without losing the effectiveness of the evidence helped the appellate court conclude that “because the images are representative of the number and nature of the child pornography videos that [the defendant] downloaded to his computer, they demonstrated the circumstances surrounding [his] crimes and were certainly relevant to the jury’s determination of an appropriate sentence and the trial court’s decision to cumulate the sentences.”22

Nicholas v. State23
In 2008, the Court of Appeals in San Antonio found that the trial court did not abuse its discretion in admitting 116 images of child pornography and allowing testimony that 13,000 of such images were found in the defendant’s possession. This appeals court considered the Rule 403 balancing test as applied to the sentencing and guilt-innocence phases. Because the forensic section employee’s testimony gave context to the admitted evidence as to its volume, coupled with the fact that she was barred by the trial court from stating that it was “the largest child pornography case she had ever worked,” the appellate court in Nicholas determined that the trial court properly admitted the evidence. “The volume demonstrated the cir- cumstances surrounding the crime and was relevant to the jury’s determination of an appropriate sentence and the trial court’s decision to cumulate the sentences.”24

Best practice
What is the best practice for admitting evidence of child pornography? Of course, we should use our best judgment when determining how much evidence the judge or jury needs to see. Be ready to articulate the need for it and to show what type of offender the defendant is and what type of images he has. If the record reflects the State’s thought process in determining the best way to present the evidence—and that we balanced the value of the evidence against the ever-so-slight possibility of unfair prejudice against the defendant—then we are arming the judge (and our appellate attorneys) with the tools needed to make a clean and successful record.

Endnotes

1  Tex. Pen. Code §43.26.

2  A third-degree felony is punishable by two to 10 years in prison and up to a $10,000 fine.

3  Tex. Code Crim. Proc. Art. 3.03(b)(3).

4  Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005).

5  Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999).

6  Tex. R. Evid. 403.

7  Pawlak v. State, 420 S.W.3d 807 (Tex. Crim. App. 2013).

8  Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990)(op. on reh’g).

9  See Moseley v. State, 983S.W.2d 249, 263 (Tex. Crim. App. 1998).

10  See Montgomery, 810 S.W.2d at 391.

11  Id. at 398.

12  Leita v. State, 2016 WL 6541843 (2016).

13  Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007).

14  Casey at 883.

15  Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002)(en banc).

16  Leita at 9.

17  Cox v. State, 495 S.W.3d 898 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).

18  See Tex. Code Crim. Proc. Art. 38.03.

19  See Cox at 908.

20  Ferguson v. State, 2016 WL 4247956 (2016).

21  Citing Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).

22  Ferguson at 4.

23  Nicholas v. State, 2008 WL 2057482 (2008).

24  See Nicholas at 3.