EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, October 2, 2008

They Know It When They See It: 10th Circuit Finds Trial Court Did Not Err In Allowing Testimony Regarding Gender Differences In Child Pornography

The recent opinion of the Tenth Circuit in United States v. Schene, 2008 WL 4379509 (10th Cir. 2008), reveals that courts don't need to be concerned with the reliability/admissibility of "expert" testimony under Federal Rule of Evidence 702 when such testimony is not offered to prove the truth of the matter asserted in the testimony.  This situation is thus similar to the situation where courts don't need to be concerned with the reliability/admissibility of out-of-court statements under Federal Rule of Evidence 802 when such statements are not offered to prove the truth of the matter asserted in the statement, making them nonhearsay.

In Schene, Jay Martin Schene was convicted by a jury of five counts of knowingly possessing material that contained an image of child pornography that was produced using materials that had been mailed, shipped, or transported in interstate commerce, in violation of 18 U.S.C. Section 2252A(a)(5)(B).  Here is an abbreviated version of the facts that led to these convictions:

     The FBI executed a search warrant on the house of Donald Black and seized four computers. Black admitted trading child pornography with a number of individuals online, although he could not remember any of their names or screen names.  The FBI thereafter performed a search of Black's computer, and one of the screen names that they uncovered was "outdoorguy104166."  The FBI then served a subpoena on AOL, and AOL disclosed that the screen name corresponded to the account of Schene and that several other screen names were associated with his account, including "ccarlin317," "myebayshades," "ebayshades," and "okseecat."

     FBI agent William Weaver then tracked down and interviewed Schene, who stated that he had never used, or heard of, outdoorguy.  He admitted, however, that he used two of the other screen names: ccarlin317 okseecat.  Schene stated that he worked as a financial advisor for Chase Bank, and that he was married to Cathy Carlin.  Schene subsequently consented to a search of his home computer and told the agents that only he and his wife used the computer.

     Computer forensics expert  Bryan Carter conducted the search of the computer and found over 1900 images of child pornography, about half of which the user had attempted to delete. He discovered most of the images in emails associated with outdoorguy and ccarlin317, and he also found pornographic movies involving children, as well as a history of movies that had been "created" and viewed on the computer.

At trial, "Schene d[id] not contest that the computer contained the charged images of child pornography, or that the only people with access to the computer were Schene and his wife;" instead, his sole argument was that the child pornography could have belonged to his wife, not him.  In furtherance of this argument, Schene got Weaver and other law enforcement officials to admit that they had not focused much, if any, attention on determining whether the child pornography could have belonged to Carlin, and instead focused mainly, if not exclusively, on Schene.  For instance, Schene got Weaver to admit that he never attempted to interview Carlin and never searched her business computer.

The prosecution then had these officials testify as to why they focused mainly or exclusively on Schene, resulting in Q&A's such as the following:

     [Prosecutor] Q: You never considered the possibility of a woman viewing these images, did you?

     [Weaver]     A: We tried to consider all people in the house. In this case, the images were of young boys, young mostly males, and generally you can consider men, but we try to consider both parties. * * *

                        Q: You just assumed that a man looked at these images?

                        A: Yes. * * *

                        Q: Has your training with the FBI taught you about the frequency with which women  traffic in child pornography?

     [Defense Counsel]: Your Honor, I'm going to object. Calls for speculation, and there's no foundation for this, and it's beyond Daubert and Kumho Tire.

     THE COURT: Overruled.

                        Q: You may answer the question.

                        A: Yes. It's usually men.

On appeal, Schene claimed, inter alia, that the trial court erred by allowing this testimony because it was unreliable and failed to meet the standards established in Daubert, Kumho Tire, and Federal Rule of Evidence 702.  The Tenth Circuit rejected this argument, determining that it didn't need to find this testimony to be reliable and/or admissible under Rule 702.  As the Tenth Circuit noted with regard to the testimony of Weaver,

     "Agent Weaver's testimony came on redirect examination after Schene had cross-examined him regarding his failure to investigate Carlin with respect to the images of child pornography. The clear purpose of the questioning on redirect was to explain why Agent Weaver had focused his attention on Schene. For that purpose, it was unnecessary to establish the 'scientific' basis for Agent Weaver's testimony. The point was not that the information he received in training was correct; it was that he was acting in accordance with his training."

This ruling seems correct to me.  As long as the prosecution was solely using this testimony to establish why the officials did not investigate Carlin and not as substantive evidence that it is mostly men who traffic in child pornography (particularly when it involves young males), it was not offered to prove the truth of the matter asserted and did not need to qualify for admission under Rule 702.   



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