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View Diary: [UPDATED] The Manassas Sexting Case, and "Known Unknowns" (167 comments)

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  •  It would seem that, if they need to have pictures (7+ / 0-)

    for comparison purposes, of his erect penis, then they have a need to be able show that the penis in the video they have is in fact his penis.  If the video is either of the girl who is recognizable, or of parts of the girl but not recognizable, they already have a witness for that--the girl.  Not only that, they don't need to identify his penis to charge him with these charges if there are pornographic portrayals of the girl because that, in and of itself, is enough to charge him under this statute.  So the only need I can see for a photograph of his erect penis is that they are alleging that the display of child pornography is in fact him displaying his own penis.  They need it in order to prove that the child (the boy) is under 18 (in this case 17).  I can't see any other need to identify his penis.  Even if the video is of him and the 15 year old having sex, they can clearly trace the pornographic video back to him to prove he disseminated it.  And they can use the girl to identify herself in the video and thus establish her age.  So the only compelling need would be to establish that the video of the penis was in fact video of a minor. The refusal of the girl to testify shouldn't create a compelling interest since the state has the power to compel her testimony.  The fact that the girl might not want to testify doesn't make it a compelling interest.  However it might ought to inform the prosecutor about whether or he should prosecute.

    This makes the statements of the lawyer and the guardian ad litem make sense when they say the state wants to create child pornography in order to prove child pornography.

    "Speak the TRUTH, even if your voice shakes."

    by stellaluna on Thu Jul 10, 2014 at 10:05:53 AM PDT

    •  I'm mostly with you on this ... (3+ / 0-)
      Recommended by:
      stellaluna, mungley, jayden

      ... except that I think the unwillingness of the 15-year-old (ostensible, because we don't know about what she sent him, and whether she felt harassed by what she received, etc) victim to testify about her 17-year-old ex-(by choice? or because her parents made her?) boyfriend is something that a judge might properly decide is worth some deference, if there are other ways to establish the facts.

      •  It does (1+ / 0-)
        Recommended by:
        Adam B

        The question is whether that deference is sufficient to create the compelling need for this kind of search.  Compelling her testimony is not great, but it's still less intrusive than compelling this operation.  

        So from a fourth-amendment perspective, I think that the government does not demonstrate a sufficiently compelling interest, because the witness chooses not to testify, and the prosecutors support her choice.  They may have to rely on the photos they have and circumstantial evidence.

      •  I haven't ever seen a judge take that approach. (5+ / 0-)

        Even young children end up having to testify.  There are lots of safeguards that judges are willing to put into place but I would be surprised to see a judge take this kind of stance just to avoid the "victim" testifying.  It's also hard to imagine them  prosecuting the case without the "victim" there.  There's going to be other evidence they will probably want to get in that will have to come in through the girl.  Also the defense could just call the girl as a witness.

        "Speak the TRUTH, even if your voice shakes."

        by stellaluna on Thu Jul 10, 2014 at 10:22:42 AM PDT

        [ Parent ]

    •  How many pictures of underage penii (0+ / 0-)

      do they have to compare it against?  Is there a database like on CSI?

      You may think that. I couldn't possibly comment.-- Francis Urqhart

      by Johnny Q on Thu Jul 10, 2014 at 12:36:35 PM PDT

      [ Parent ]

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