As far as I was aware it is a licensed physician which makes the determination in the U.S. A forensic examiner, or jury for that matter is not medically qualified to make that determination of age.
Others may be able to make determinations on the degrees of exploitation (eg, a nude image of someone standing there, versus being positioned in another manner). I imagine this would only be relevant in cases of production anyway.
Back to showing intent, minimi and adam are spot on with their approaches and processes for intent. While the point that an examiner's responsibility is to show facts of what occurred on system was so eloquently stated, that does not mean this cannot also prove an intent at the same time.
In a murder case in which the homicide was performed execution style, the CSI team would easily show the intent of the gunman in this case. Same as in the other sample cases previously stated (sorry can't scroll back to see who posted) whereby the actions identified by the examiner/analyst would easily indicate the intent of the user at the time by virtue of no other reasonable cause being present.
I love this thread btw.
Thank you for your response.
In the US the USA makes the distinction on if it is CP or not, the Jury can just see the images to see what they are working with.
I've seen AUSA's before who asked the judge how long they can show each image and they were given a time, say 20 seconds and they would hold up the image in front of the jury box for that time and then move on to the next image. You can't win a case if you are a defendant after the jury has seen such horrific things.
If you can't see the images, whose word are you going to take?
Would you convict someone based on someone telling you that there are images there?
Would you want to be convicted based on not being able to see the evidence?
CP is just a bad example of a crime and to speak on Intent, because once again the nature of the crime and the love people have for kids.
Rarely do the jurors in CP matters (in WA anyway) actually see any offending material. The defense here will always concede that the material found is indeed CP, which takes away the need for anyone to view the material. Then it all becomes about the intent, which is where the good old traditional police work and interview techniques come in to play. So jury bias is not really a factor in any of the cases I've been involved in.
I'll second this, usually a judge will do their best to ensure that images are never seen by a jury. I've only had it in one case so far. that said with a lot of CP cases the suspect usually enters a guilty plea, often the day of the trial.
You misunderstand. The defence see the images, they agree that they are in fact IIC (Indecent Images of Children), there is therefore no reason for a jury to see them. If the defence disputes this, then they can be shown to the jury to make a decision on whether they are IIC. In UK law they are the ones who ultimately decide if they are or not.
Therefore the jury do no need to see and are not made biased by seeing the images, however a defendant is not convicted on some phantom images as you seem to suggest.
As for whether this is a good example of proving intent, it seems one of the best as there have been instances where IIC has been found without it being the intent of the user.
As mentioned before, if you leave a company and take a load of their intellectual property or commit a fraud using ebay and your computer accessed ebay on that day at that time and relating to a specific item, then intent seems more straight forward. Arguing with well I went to a porn site and some images popped up requires looking at intent more.
As far as I was aware it is a licensed physician which makes the determination in the U.S. A forensic examiner, or jury for that matter is not medically qualified to make that determination of age.
Others may be able to make determinations on the degrees of exploitation (eg, a nude image of someone standing there, versus being positioned in another manner). I imagine this would only be relevant in cases of production anyway.
Just as a point of interest, in the UK, medical experts on children are not permitted to give evidence on age as expert knowledge is only allowed on things outside a juries knowledge and it is deemed that the age of a child in a photograph is within their knowledge. Odd how different things are in different countries.
One of the things that can be used to prove intent is a pattern of behavior. For example, repeated google searches for a given subject, along with a significant number of files or file types along with real-world (non-computer) behavior by a defendant can be used as evidence in some cases.
Dom
-glad to be able to finally answer a question.
In a murder case in which the homicide was performed execution style, the CSI team would easily show the intent of the gunman in this case. Same as in the other sample cases previously stated (sorry can't scroll back to see who posted) whereby the actions identified by the examiner/analyst would easily indicate the intent of the user at the time by virtue of no other reasonable cause being present.
This is a good example of the point on which I am disagreeing.
Fact
A man has been shot twice in the chest in a motel room.
The CSI team may find out and scientifically affirm that UNdoubtedly
- there are traces of a fight in the room
- the gun that fired the shot(s) is actually "exhibit A"
- the only fingerprints on the gun "exhibit A" were of the indicted person
- the gun "exhibit A" is not traceable/not registered
- the gun "exhibit A" was found in possession of the indicted person
- there were traces of gunpowder on the hands of the defendant compattible with the kind of fired ammunition and to the other shots still inside the gun
- the defendant car GPS indicates that at the exact time the sound of shots were heard by several witnesses it was in the parking before the motel room where the murder took place
- the defendant handy was actually locked at that exact time to the cell covering the area
- the defendant was actually recorded by a security camera a few minutes before that time entering the motel parking driving his/her car and a few minutes after leaving it speeding up
The above is all IMHO scientific and "expert witness" chores.
It says that UNdoubtedly
- the accused was there at that time
- the accused fired the gun that killed the victim
But, for all the scientifical proofs above, start imaging different scenarios/cases.
Scenario #1
- the dead man was a known drug dealer
- the man accused of his murder is another known drug dealer
- "exhibit A" is a 9 mm UZI with silencer
Scenario #2
- the dead man was a witness in a serious case connected with Mafia
- the man accused of his murder is an ex-con, already sentenced for another shooting/murder
- "exhibit A" is a Colt Python .357 6"
Scenario #3
- the dead man was an average Joe
- the man accused of his murder is an ex-marine, ex-policeman, county champion of target shooting, and it was found that the dead man had an affair with his wife
- "exhibit A" is a Colt .45 M19A11
Scenario #4
- the dead man was a 220 pounds known pimp
- the woman accused is a 90 pounds 19 year old girl, disappeared two years before from her home
- "exhibit A" is a .22 S&W 61-2
Now, WHO will actually "show intent"? (to me is the prosecution, not the "expert witness")
Do all the scenario show the same intent? (I mean from the scientifically objective point of view)
Would someone agree with me that for the murder in scenario #4 the possibility that a couple of shots were fired by mistake or for self - defense brought up by the defense will pass more likely than in the other scenarios?
And that IF there is agreement to the above the difference in "intensity" of intent has nothing to do with the actual scientifically proven facts?
As far as I was aware it is a licensed physician which makes the determination in the U.S. A forensic examiner, or jury for that matter is not medically qualified to make that determination of age.
Others may be able to make determinations on the degrees of exploitation (eg, a nude image of someone standing there, versus being positioned in another manner). I imagine this would only be relevant in cases of production anyway.
Just as a point of interest, in the UK, medical experts on children are not permitted to give evidence on age as expert knowledge is only allowed on things outside a juries knowledge and it is deemed that the age of a child in a photograph is within their knowledge. Odd how different things are in different countries.
JFYI, there was a thread about a "very peculiar" case of alleged CP in the US, the Simon-Timmerman case
http//
http//www.forensicfocus.com/Forums/viewtopic/t=6448/
with several considerations about the differences between UK and US.
jaclaz
You think a physician comes in each time to charge someone on CP where it's not a known set or the victim is not known to the charging party?
I've been in cases in Federal Court where a Forensic Anthropologist was called in, but that is very few and very far between.
As far as I was aware it is a licensed physician which makes the determination in the U.S. A forensic examiner, or jury for that matter is not medically qualified to make that determination of age.
Others may be able to make determinations on the degrees of exploitation (eg, a nude image of someone standing there, versus being positioned in another manner). I imagine this would only be relevant in cases of production anyway.
Back to showing intent, minimi and adam are spot on with their approaches and processes for intent. While the point that an examiner's responsibility is to show facts of what occurred on system was so eloquently stated, that does not mean this cannot also prove an intent at the same time.
In a murder case in which the homicide was performed execution style, the CSI team would easily show the intent of the gunman in this case. Same as in the other sample cases previously stated (sorry can't scroll back to see who posted) whereby the actions identified by the examiner/analyst would easily indicate the intent of the user at the time by virtue of no other reasonable cause being present.
I love this thread btw.
Thank you for your response.
In the US the USA makes the distinction on if it is CP or not, the Jury can just see the images to see what they are working with.
I've seen AUSA's before who asked the judge how long they can show each image and they were given a time, say 20 seconds and they would hold up the image in front of the jury box for that time and then move on to the next image. You can't win a case if you are a defendant after the jury has seen such horrific things.
If you can't see the images, whose word are you going to take?
Would you convict someone based on someone telling you that there are images there?
Would you want to be convicted based on not being able to see the evidence?
CP is just a bad example of a crime and to speak on Intent, because once again the nature of the crime and the love people have for kids.
Rarely do the jurors in CP matters (in WA anyway) actually see any offending material. The defense here will always concede that the material found is indeed CP, which takes away the need for anyone to view the material. Then it all becomes about the intent, which is where the good old traditional police work and interview techniques come in to play. So jury bias is not really a factor in any of the cases I've been involved in.
I'll second this, usually a judge will do their best to ensure that images are never seen by a jury. I've only had it in one case so far. that said with a lot of CP cases the suspect usually enters a guilty plea, often the day of the trial.
You misunderstand. The defence see the images, they agree that they are in fact IIC (Indecent Images of Children), there is therefore no reason for a jury to see them. If the defence disputes this, then they can be shown to the jury to make a decision on whether they are IIC. In UK law they are the ones who ultimately decide if they are or not.
Therefore the jury do no need to see and are not made biased by seeing the images, however a defendant is not convicted on some phantom images as you seem to suggest.
As for whether this is a good example of proving intent, it seems one of the best as there have been instances where IIC has been found without it being the intent of the user.
As mentioned before, if you leave a company and take a load of their intellectual property or commit a fraud using ebay and your computer accessed ebay on that day at that time and relating to a specific item, then intent seems more straight forward. Arguing with well I went to a porn site and some images popped up requires looking at intent more.
In Australia a physician may be called only when the jury cannot reach a decision about the child being over or under. I'm not aware of it actually happening but that is the only instance it may happen here.
In all other matters the Police tag the images as suspect. The defense view the images and agree/disagree then the prosecution may knock some of the images out depending on how close a call it is. Then the defense will concede the rest.
The next time the images are viewed by anyone it's the judge at the end (assuming a guilty verdict) and he views for sentencing only.
But it is very interesting the different approaches in different countries. Even within Australia there are wide variances in the way the law is applied. In NSW for example it's very difficult to have any evidence admitted that is found in unallocated space, so as a general rule it's largely ignored…..any fellow Aussies please correct me if I'm wrong. )
That's not necessarily the only way that determination can be made in Australia. In Queensland for example, the state censor can decide that an image is CP and "refuse classification" which then makes possession of that image an offence. For the vast majority of cases I worked in Queensland, we worked off the censor's certificate. One time I was testifying in a commital hearing, and it was based on the certificate, but the defence asked to see an email which contained a contraband image. I opened it up as requested in closed court on a projector. I wasn't surprised when the magistrate returned an indictment that afternoon.
For the defense, it's generally best if the images aren't seen by the jury.
Of course I should have qualified by saying "in WA"…interesting that the censor is used in QLD as I had always been under the impression that QLD was the most similar to WA in criminal law.
How does that work when you have hundreds of thousands of suspect CP images and videos? Do you send them all to him/her and then wait until they have viewed them all and commented one way or another?
armresl - No I'm not saying that a physician would be used in every case. The identification of specific age is rarely of value to the case. But I am saying that as far as I was aware, in a case in which age was indeterminable, though specifically held value to a case for whatever reason, the lay person would not be the ones consulted to make a determination. The other example where this point is relevant is when/if a forensic examiner is asked to opine on the age of the subjects. That's not his/her place.
jaclaz - I can see your point but at the same time you have to admit those scenarios are far more convoluted than the execution example (as well as the digital forensics equivalent) I cited. My point was simply to define a scenario outside of the tech world in which analysts would be able to make an identification of intent, just as there are straight forward cases within the tech world in which the same can be performed. Not saying that is there job, nor should they approach their cases with the mindset that they will be providing such statements at the end. However there are very clear cut cases in which historical chains of events identified by a forensic examiner can reasonably draw conclusions of intent. It is no where near as impossible nor unreasonable as some make it sound. Going back to your example, in the event that there are other reasonable possibilities which cannot be accounted for by other artifacts, the examiner should yield their opinion on intent and strictly state the activities identified and let defense account for those activities.
jaclaz - I can see your point but at the same time you have to admit those scenarios are far more convoluted than the execution example (as well as the digital forensics equivalent) I cited. ….
It is no where near as impossible nor unreasonable as some make it sound. Going back to your example, in the event that there are other reasonable possibilities which cannot be accounted for by other artifacts, the examiner should yield their opinion on intent and strictly state the activities identified and let defense account for those activities.
Sure, but the point is still open.
In my view the "expert witness" should
- limit his/her "base" statements to facts - and more specifically to those facts that are scientifically (and within the strict limits of the "expert witness" qualifications/experience) UNdoubtable/proven
- provide his/her (BTW professional and qualified) opinions, possible explanations, logical deductions, etc. keeping them well distinct from the scientific work and limiting them strictly to the specific field he/she is qualified/expert
- if specifically asked for in court by the judge*, provide additional explanations and or opinions on how/why something has been done and by whom
*BTW and JFYI in Italy "expert witnesses" (and also "common" witnesses, eyewitnesses, etc.) are NEVER questioned directly by prosecution or defense, I know that it may look "silly" and overly complex to a lot of you, but as a further guarantee (to the witnesses, to the indicted and to the jury) the lawyers (both prosecution and defense) ask their questions to the judge, and then the judge - if it finds it allowable - asks the question to the witness (using the exact same question/wording or changing/re-wording it as he/she sees fit) or rejects it.
Our friends "down under" have a
Expert witnesses in proceedings in the Federal Court of Australia
http//
which I personally find a simple, effective and clear example of how exactly an "expert witness" should act and behave.
And still as I see it "showing intent" (on the basis of the "expert witness" report/hearing) is a duty of the prosecuting office, and "proving intent" is something only the judge and jury can do with their sentence.
BTW, you didn't read attentively the fake scenarios I posted, or you would have found a small paradox I included in scenario #1 wink .
jaclaz