In England and Wales expert evidence of age is not admissible, the relevant case law is generally quoted as
MICHAEL LAND, R v. [1997] EWCA Crim 2409 (10th October, 1997)
In the judgement it is explained that the original judge directed the jury that in deciding whether it was proved that the photographs were of a child
"You can do no more than use your own experience, your judgment and your critical faculties in deciding this issue. It is simply an issue of fact for you, the jury, to decide what you have seen with your own eyes…"
The judgement in the appeal agreed with the original judge adding -
In our judgment this direction is not open to question. In any event such expert evidence tendered by either side would be inadmissible. The purpose of expert evidence is to assist the court with information which is outside the normal experience and knowledge of the judge or jury. Perhaps the only certainty which applies to the problem in this case is that each individual reaches puberty in his or her own time. For each the process is unique and the jury is as well placed as an expert to assess any argument addressed to the question whether the prosecution has established, as it must before there can be a conviction, that the person depicted in the photograph is under 16 years.
As a matter of principle we tend to err on the side of caution and do not include pictures where it could be argued that the person in the picture might be 18 (currently under 18 is the age for the purposes of the UK law on indecent photographs).
H
My apologies if I am repeating comments that may have already been made; I have not read all the replies but wanted to respond as honestly as I could.
In my experience if you have any doubt with regard to whether a young person in an image or video is under 16/18, I would err on the side of caution and identify the file as notable so that the SIO can make that determination.
It is my experience that when you have no such doubts about the subject’s age, it is very likely that you are correct and will face no resistance to your opinion even when you have no obvious qualification to support your opinion.
…COMPLETELY outside of the field of digital forensics…
Which is why I would politely decline the request of the attorney to further narrow the provided set.
The detective I worked with lumped images into two groups One was "clearly underage" (prepubescent, obviously children, etc), and the other was "possibly underage" (could be 15, could be 19 and a late-bloomer).
From what he told me, the first category was usually large enough to make the second category an "added bonus" in terms of prosecution.
What training did he have to be able to make the assumption of clearly underage and possibly underage?
From a defense standpoint, I love it when people just guess at things, or they don't even take the time to run the pics against any of the known databases.
There is a right way and a wrong way to go about those things and a sad fact is that a lot of people can't afford experts to fight evidence against them, so they go to jail or prison.
Also, the detective in Lafayette should have kicked it to Indy and let it go Federal as they have more resources and conduct very thorough investigations. In addition if the goal is to give someone time, everyone knows charge Federally 97.3% win rate for the government and mandatory minimums for the mostly indigent defendants.
The detective I worked with lumped images into two groups One was "clearly underage" (prepubescent, obviously children, etc), and the other was "possibly underage" (could be 15, could be 19 and a late-bloomer).
From what he told me, the first category was usually large enough to make the second category an "added bonus" in terms of prosecution.
Normally, I'd advocate going Federal as well. However, the Feds won't take every case, at least in my jurisdiction. We've had several turned down, and then have to take them through State court. That generally means, at least in my county, that the suspect, if convicted, gets less (sometimes much less) time to serve than had a similar judgment come from Federal court. But what other options are there? If the Feds decline, then we either take it to State court, or let the perp go. I, for one, prefer to go with the former.
As to what is underage and what is not. I will note what appear to be underage images/movies to the case agent, labeling them "suspected". I would not, however, feel comfortable saying 100% that the images or movie files are underage children. I'll instead note that the case agent should talk to a forensic pediatrician or other qualified individual, as that lies completely outside of the realm of Digital Forensics.
Thanks everyone for the contributions. Some examiners suggest that a pediatrician might determine the age from a computer screeen.
I think the problem lies here. In my opinion, even a pediatrician can not be %100 sure about that, as visual depictions do not reflect the physical reality as is, and it is a scientific fact that physical development of humans depends on some factors like race, population, nutrition, exercising, geography, height, and genetics.
So, in my opinion, age estimation from a computer screen is intrinsically a problem for pediatricians, too. Anyone from any job and any pediatrician would have to use their eyes when they have to make age estimation from a computer screen, and having eyes won't make pediatricians different from us.
In physical life, where pediatricians could come together with the person in the picture and make some tests and measurements for age estimation, they might provide much more solid evidence about what they do. However, they can't make use any of measurements when it comes to persons depicted on screen. So, a pediatrician and an examiner would only have to use their eyes when age estimation has to be made on the screen. And human eyes err.
To put it shortly, how can we ensure that the age estimation made by a pediatrician from a screen is really correct? You will never know unless you physically have the person in the picture with you.
What do you think?
A pediatrician may not be 100% sure about whether a given image may (or may not) be an underage child. That much is true.
However, I'll wager, they are much more suited to make the decision of what and what not is an underage child, given the years of training, experience, and medical certifications they have, rather than a forensic examiner who might have minimal training, or who knows "that's a kid" when they see one. It all comes down to courtroom credibility. I'll make the statement that I believe, based on my experience, that a given image is a child, but I also indicate that a forensic pediatrician be contacted to potentially confirm that. Most the time, there are never any questions. If I have a doubt about the age of a child, I usually seek guidance from the case agent. Most of the time, there are substantial images or movies that I don't have any doubt on, so I'll likely not even bookmark the image.
What's the approach if the photographs are of female genitals or breasts only with no other context?
