Friday, February 09, 2007

Expert Testimony and Non-Virtual Children

In a prosecution for possession of child pornography, must the government offer expert testimony that a particular pornographic image is of a real, non-virtual child, in order to meet its burden of proof by a preponderance of evidence at sentencing?

No, says the First Circuit, over a strong dissent from Judge Torruella. See United States v. Rodriguez-Pacheco, No. 05-1815 (1st Cir. Feb. 5, 2007).

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posted by pn at 3:24 PM  

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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.