RECOMMENDATION 51

Part: 
Three
Chapter: 
 

State legislatures should amend laws, if necessary, to eliminate requirements that the prosecution identify or produce testimony from the child who is depicted if proof of age can otherwise be established.

Prosecutors are often unable to produce the victim of child pornography to testify at trial as to his or her age.[612] The amendment would allow testimony from a third party as to the age of the child depicted. The testimony may come from relatives or friends of the child if the child is identified but he or she is not located. In addition the prosecution may use an expert witness to testify as to the age of the child based upon physiological characteristics.

The testimony based upon the depictions should be used only for proof of age. The depictions, when entered into evidence, should serve as the basis for this testimony from an expert or other qualified person as to the age of the child shown.

Prior to 1985 a child pornography prosecution in Maryland could not go forward unless the child depicted in the material was present to testify that he or she was under the age of sixteen at the time the pornography was produced .[613] Many cases were not prosecuted because this element of proof could not be met when the child victims could not be located.[614] The Maryland legislature enacted a law providing that of a child's age may be proved by:

  1. personal inspection of the child.
  2. oral testimony of age.
  3. expert medical testimony.
  4. observation of the child as depicted in the material.
  5. any other method authorized by applicable law or rules of evidence.[615]

States may find the approach taken by the Maryland legislature an effective method to overcome the barriers associated with determining the age of a child pornography victim. This approach allows the use of several alternate forms of reliable evidence.

Notes

  1. Id., p. 204.
  2. Miami Hearing, Vol. II. Alfred Danna, p. 283.
  3. Id.
  4. Miami Hearing, Vol. II. Alfred Danna, p. 284J.