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posted by martyb on Saturday September 05 2015, @12:10PM   Printer-friendly
from the sense-no-makes dept.

Later this month, a North Carolina high school student will appear in a state court and face five child pornography-related charges for engaging in consensual sexting with his girlfriend.

What's strange is that of the five charges he faces, four of them are for taking and possessing nude photos of himself on his own phone—the final charge is for possessing one nude photo his girlfriend took for him. There is no evidence of coercion or further distribution of the images anywhere beyond the two teenagers' phones.

Similarly, the young woman was originally charged with two counts of sexual exploitation of a minor—but was listed on her warrant for arrest as both perpetrator and victim. The case illustrates a bizarre legal quandry that has resulted in state law being far behind technology and unable to distinguish between predatory child pornography and innocent (if ill-advised) behavior of teenagers.

The boy is being charged with child pornography for taking pictures of himself.


[These teens were of the age of consent in North Carolina and could legally have had sex with each other. Juvenile court jurisdiction ends at age 16 in North Carolina, however, so they are being tried as adults on felony charges of possessing child porn... of themselves. -Ed.]

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  • (Score: 5, Insightful) by cyxs on Saturday September 05 2015, @12:24PM

    by cyxs (124) on Saturday September 05 2015, @12:24PM (#232596)

    This is where jury nullification is to play a role in jury trials. But then again people in power don't want "common" people to understand what and when jury nullification is to be used and why.

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  • (Score: 0) by Anonymous Coward on Saturday September 05 2015, @02:26PM

    by Anonymous Coward on Saturday September 05 2015, @02:26PM (#232613)

    Try informing potential jurors of jury nullification. It's not so easy.

    • (Score: 4, Insightful) by cyxs on Saturday September 05 2015, @02:36PM

      by cyxs (124) on Saturday September 05 2015, @02:36PM (#232617)

      That's the problem and one reason I think judges have to much power as it stands they can disallow anything they don't like inside the court. People tend to forget we elect and appoint people to positions that they have absolute power and its very hard to override that power or if we do it takes awhile to do so.
      The people were to a check upon the 3 branches of government but we haven't been we as a people have become subservient to the government. Juries are told to follow the letter of the law not the intent or your views on it. The whole idea that the police work for the people or the government works for the people isn't true anymore because they do not teach what it means to be a citizen of this country.

      • (Score: 2) by Anal Pumpernickel on Saturday September 05 2015, @02:47PM

        by Anal Pumpernickel (776) on Saturday September 05 2015, @02:47PM (#232622)

        The whole idea that the police work for the people or the government works for the people isn't true anymore

        It was never true. Being critical of the government is necessary if you want to have any hope of keeping your freedoms and maintaining some semblance of democracy.

        • (Score: 4, Interesting) by Joe Desertrat on Saturday September 05 2015, @06:39PM

          by Joe Desertrat (2454) on Saturday September 05 2015, @06:39PM (#232696)

          It was never true. Being critical of the government is necessary if you want to have any hope of keeping your freedoms and maintaining some semblance of democracy.

          That is one reason why a free press is essential. Unfortunately, the traditional media (newspapers, TV, radio) is now anything but free, with a few corporations now controlling what was once hundreds (thousands?) of competing interests. Fortunately we have the internet for now, but that seems to lack the professional standards the media once seemed to have.

          • (Score: 0) by Anonymous Coward on Saturday September 05 2015, @10:00PM

            by Anonymous Coward on Saturday September 05 2015, @10:00PM (#232762)

            > That is one reason why a free press is essential.

            FYI, when the first amendment was written "freedom of the press" meant freedom of anyone with a printing-press. The idea of "the press" as professional news organizations did not exist.

            > Fortunately we have the internet for now, but that seems to lack the professional standards the media once seemed to have.

            Such standards are great, but they are a very recent phenomenon. You might remember the terms "yellow journalism" and "muck-raking" from your american history class in high school.

            • (Score: 0) by Anonymous Coward on Sunday September 06 2015, @05:21PM

              by Anonymous Coward on Sunday September 06 2015, @05:21PM (#233011)

              Such standards are great, but they are a very recent phenomenon. You might remember the terms "yellow journalism" and "muck-raking" from your American history class in high school.

              At least there were some others to call them out on it, and genuine scoops were sought out by genuine reporters. Now the few big media corporations essentially regurgitate the same "facts", with the talking heads on the screen all playing along.

    • (Score: 2) by ikanreed on Saturday September 05 2015, @02:48PM

      by ikanreed (3164) Subscriber Badge on Saturday September 05 2015, @02:48PM (#232623) Journal

      Right, because, unless you're on the jury, that's viewed by the courts are trying to influence jurors on a SPECIFIC trial. Which is incredibly illegal.

      Educate everyone in your life who gets a jury duty letter? They don't care, but nullification activists misrepresent why they're asked to stop and eventually charged.

      • (Score: 5, Insightful) by JNCF on Saturday September 05 2015, @03:13PM

        by JNCF (4317) on Saturday September 05 2015, @03:13PM (#232635) Journal

        But prosecution gets to screen jury members, and from what I hear second-hand (I have no legal background or any history of jury duty) they tend to ask jury members if they know of any reason that they might not have to convict the defendant even if the defendant had committed the crime in question. If somebody answers "no" to this and then later brings up jury nullification, they lied under oath. If they say "yes" the prosecution vetoes the jury member; the prosecution has no incentive to allow jury members with knowledge of jury nullification into the court room, so they get screened out.

        If the system is designed to have informed jury members, you'd think they would just tell the jury members about jury nullification, or at least make it so you can't screen out jury members because they know too much about the law. Instead, it feels as if knowledge of the law is being hidden from jury members. Given this system, I can't see blaming the jury nullification activists for trying to inform jury members of the law after they've passed through this dystopian screening process.

        • (Score: 2) by quacking duck on Saturday September 05 2015, @03:58PM

          by quacking duck (1395) on Saturday September 05 2015, @03:58PM (#232646)

          If they say "yes" the prosecution vetoes the jury member

          I'm sure it's not universal, but last time I was on a jury selection both prosecution and defence could each only veto up to a certain number of people. In fact, one side (the defence, IIRC) ran out of vetoes; when they tried vetoing one more, the judge actually verbally told them they'd used all of theirs.

          • (Score: 2, Interesting) by Anonymous Coward on Saturday September 05 2015, @06:06PM

            by Anonymous Coward on Saturday September 05 2015, @06:06PM (#232679)

            Last time I was a participant in jury duty the judge overruled every dismissal the defense made and dismissed jurors himself whenever the prosecutor looked at him. If that was not illegal, it surely ought to be. Then again, the prosecutor was in the room so clearly he would not pursue the case.

            It was a case where the police testimony was not readily believable* and so was already brought up during questioning. The defense tried to dismiss jurors that answered "yes" to the questions of (paraphrasing) "Do you have any friends or relatives in the police department?" and "Do police always tell the truth." Anyone that said 8"no" to the second question was dismissed as having potential bias by the judge himself.

            *Two police spotted a black pan in a car at night and tried to pull him over. He took off. The police claim to positively identify him as a specific person during the chase. The suspect then managed to outrun the police, get back into his vehicle, calmly drive away, then be pulled over by the same police hours later. Somewhere between the time the police lost the suspect and pulled him over again they found a gun that had no markings but they knew was tossed by said man. Which was unfortunately lost in evidence (this made some local news). Here is the kicker: this was a district in southeast Michigan. At the time there were no streetlights, many foreclosed homes, and the suspect was pushing the weight-limits of his court chair. So the whole thing came down to the believably of the story where a 300+ pound black man outrun police, in a circle back to his car mind you, while simultaneously being positively identified in pitch black conditions and associated with a gun that no one except the arresting officers have seen.

        • (Score: 2) by frojack on Saturday September 05 2015, @05:59PM

          by frojack (1554) on Saturday September 05 2015, @05:59PM (#232678) Journal

          Both sides get to screen the jury.

          And Both sides have limited numbers of challenges (rejections) of potential jurors.

          The questions are there to detect and exclude people who have a grudge against the government, or the defendant.

          That has nothing at all to do with Jury nullification, where the jury decides by itself that the whole proceeding is unjust even if
          it can be shown that a specific act was against the law. Many juries have nullified upon hearing the evidence without any
          preconceived notion of nullification.

          Not saying this case needs jury nullification.
          The whole fiction of trying them as an adult for pictures of themselves where they are said to be children is sufficient for any jury to find them not guilty, because they can not be both adults under the law and children under the law. The prosecutor has a tough road to hoe, and simply deciding the state did not prove they were children would be sufficient.

          --
          No, you are mistaken. I've always had this sig.
        • (Score: 2) by http on Saturday September 05 2015, @07:39PM

          by http (1920) on Saturday September 05 2015, @07:39PM (#232709)

          In the course of the trial, a juror normally ends up knowing more about the case than when they were first selected. Your scenario of lying under oath just isn't true. There is at least one scenario I recall where a scumball totally committed the crime accused of, but was not convicted since it was actually done with the intent and result of preserving the lives of many people. This was not apparent to all at the start of the trial.

          --
          I browse at -1 when I have mod points. It's unsettling.
      • (Score: 3, Informative) by sjames on Saturday September 05 2015, @04:45PM

        by sjames (2882) on Saturday September 05 2015, @04:45PM (#232655) Journal

        It goes well beyond that. The last time I participated in voir dire, the judge asked us to swear that we would judge only the actions of the defendant and not the law. When I said I couldn't conscionably swear to that. She briefly attempted to convince me that it wouldn't be an ethical problem for me if society deemed the person was to be punished. I countered that because I would know the inevitable consequences of my guilty vote, those consequences WOULD ethically be attributable to me. I was dismissed.

        They would LIKE to keep people from educating friends who get a jury letter, it's just that there is no excuse for them to do so even if they could prove it. Here [nytimes.com] we have a case of someone tried for jury tampering due to him passing out nullification flyers in front of a courthouse. He had no way of knowing if any of the people who went by were jurors at all, much less what case they might be empaneled on.

  • (Score: 1, Disagree) by Francis on Saturday September 05 2015, @03:34PM

    by Francis (5544) on Saturday September 05 2015, @03:34PM (#232642)

    Jury nullification isn't a legal right that jurors possess. The jury is just there to decide whether or not the evidence supports the prosecutions case that the law was broken and the sentencing.

    Jurors do not have the right to willfully ignore the law. And with good reason. If the defense attorneys were allowed to play to the juries sympathies and convince them that the crime shouldn't even be a crime, it would break the legal system. The attorneys involved agree not to try and do that, and it's part of the juries responsibilities to just weigh the facts in the case.

    The question of whether or not something ought to be legal at all is a question for the various appellate courts to consider.

    Or to look at it another way, if juries do nullify, that doesn't change anything. There's still going to be more of those cases going to trial and perhaps the next jury isn't as generous. And ultimately, jury nullification deprives the people involved of justice. I'm sure it's great to not go to prison and to not be listed, but the only way those things ever change is either by court order or legislatively and it's a tough sell to politicians that these things should be fixed. A judge can at least hide behind precedence in most cases.

    • (Score: 2) by TheGratefulNet on Saturday September 05 2015, @04:09PM

      by TheGratefulNet (659) on Saturday September 05 2015, @04:09PM (#232649)

      ligten up, francis.

      and you happen to be very wrong about the intent of JN. the intent IS th allow common-sense to override uncaring,unfeeling,unjust laws. this is the perfect application of it!

      --
      "It is now safe to switch off your computer."
      • (Score: 1) by Francis on Saturday September 05 2015, @04:42PM

        by Francis (5544) on Saturday September 05 2015, @04:42PM (#232654)

        Jury nullification exists in so far as some jurors do it. It's not a legal construct and it's something that will rightfully get you thrown off the jury if the judge or the attorneys find out about it.

        It's astonishing to me how little respect people have for the law and yet are so unwilling to address the issue in the appropriate venue.

        • (Score: 2) by Runaway1956 on Saturday September 05 2015, @05:12PM

          by Runaway1956 (2926) Subscriber Badge on Saturday September 05 2015, @05:12PM (#232667) Journal

          The Magna Charta might be deemed a form of jury nullification. The one and only source of "justice" prior to the MC was the judgement of some pompous royal ass. The peasants of the time decided that enough was enough, and insisted that the people have a voice. The royalty yeilded, rather than be executed.

          Seeing that our law is directly based on English Common Law - yeah, the PEOPLE decide what the law is, not the ruling class.

          In another post, you mention "respect for the law"? I have none. The circus we have today is sometimes entertaining, and sometimes tragic, but it is simply not deserving of respect.

          • (Score: 3, Informative) by CRCulver on Saturday September 05 2015, @06:37PM

            by CRCulver (4390) on Saturday September 05 2015, @06:37PM (#232693) Homepage

            The peasants of the time decided that enough was enough, and insisted that the people have a voice.

            The Magna Carta was something that was drawn up by Canterbury to make peace between the king and a group of disgruntled barons. It was meant to provide a better balance of power between the king and the feudal aristocracy. While the Magna Carta had an iconic status for reformers in later centuries, the peasantry had nothing to do with the Magna Carta, and none of the freedoms it outlined were applicable for the peasantry. How could you not know this?

            • (Score: 0) by Anonymous Coward on Saturday September 05 2015, @09:51PM

              by Anonymous Coward on Saturday September 05 2015, @09:51PM (#232759)

              How could you not know this?

              What can you expect from someone who doesn't use Gamemaker for all their programming needs?

        • (Score: 2) by Anal Pumpernickel on Saturday September 05 2015, @06:14PM

          by Anal Pumpernickel (776) on Saturday September 05 2015, @06:14PM (#232681)

          It's astonishing to me how little respect people have for the law

          What's astonishing is that you're apparently foolish enough to respect the law simply because it is the law.

          You're also completely incorrect about jury nullification. It's like arguing that disobeying some unjust laws will inevitably lead to anarchy. It's not true because people generally have brains and tend to obey laws that they see will benefit their well-being (laws against murder, for example). It's not an either-or where you either obey all laws or you disobey all laws. Jury nullification is designed to be another check on government tyranny, and when the other checks fail, it needs to be used. I would not convict someone for challenging the TSA, for instance. The courts have failed to defend the constitution by ruling the TSA unconstitutional, so jury nullification can be used to reduce the harm of government tyranny in situations like that.

        • (Score: 0) by Anonymous Coward on Sunday September 06 2015, @03:09AM

          by Anonymous Coward on Sunday September 06 2015, @03:09AM (#232865)

          It's astonishing to me how little respect people have for the law

          I respect the law exactly as much as the people tasked with writing it and enforcing it do. That is, not at all.

    • (Score: 4, Insightful) by curunir_wolf on Saturday September 05 2015, @04:17PM

      by curunir_wolf (4772) on Saturday September 05 2015, @04:17PM (#232651)

      Jurors do not have the right to willfully ignore the law.

      Maybe not, but they still in all cases have that power.

      If the defense attorneys were allowed to play to the juries sympathies and convince them that the crime shouldn't even be a crime, it would break the legal system.

      That's an outrageous claim with absolutely no basis. Juries are not going to go around deciding that laws against murder and rape and armed robbery are unjust. But for those laws and prosecutions that are clearly unjust, like this case, the jury isn't breaking the legal system, they are fixing it. They are limiting the state's ability to unjustly prosecute citizens for normative behavior, where there are no victims. No victim, No crime! How many people are in prison today that because they were convicted of a crime where the "victim" was the state itself? They should not be there. The state has a right to prosecute crimes against citizens - the state does NOT have the right to jail its citizens by claiming to be the victim of a crime.

      The question of whether or not something ought to be legal at all is a question for the various appellate courts to consider.

      With this statement, you have broken the historical basis for not recognizing jury nullification in the US - the principle that it is the people that decide whether or not something ought to be legal. When you give that power to the courts, the only recourse for citizens is jury nullification, just like the situation in the pre-revolutionary US colonies.

      --
      I am a crackpot
      • (Score: 1, Disagree) by Francis on Saturday September 05 2015, @04:38PM

        by Francis (5544) on Saturday September 05 2015, @04:38PM (#232653)

        You don't solve abuses of power by abusing power. Jury nullification just ensures that the issue is never actually dealt with.

        It's not an outrageous claim, it's completely true. And just because some people consider a crime to be victimless, does not mean that it is victimless. The state steps in as the victim in cases where the damage is considered to be widespread. It also allows for the state to prosecute in cases where the victim is at risk of being intimidated by the defendant.

        The people do have the right to decide whether or not something ought to be illegal. You vote for people that support the things you support. In some parts of the country we even get to directly propose laws as initiatives or the legislators can send things to the public for a vote as a referendum. The jury box is completely the wrong place to be deciding whether or not something should be illegal.

        What you're proposing is tantamount to anarchy. We've had a system where jurors did that in a widespread way back in the "good" old days when it was damn near impossible to convict a white person of lynching a black person. The jurors didn't see a problem with that. If we open the door to jurors making their own decisions about what the law should be, there's no telling what they will and won't go for. I highly doubt it will be anything that dramatic in the modern era, but there's still a bunch of people out there that consider GLBT folks to be subhuman, not to mention illegal immigrants, so I wouldn't be surprised if it still happens.

        • (Score: 2) by curunir_wolf on Saturday September 05 2015, @09:21PM

          by curunir_wolf (4772) on Saturday September 05 2015, @09:21PM (#232751)
          So your lame response comes down to calling me a racist and a homophobe? Good job, douchebag.
          --
          I am a crackpot
      • (Score: 1, Interesting) by Anonymous Coward on Saturday September 05 2015, @08:50PM

        by Anonymous Coward on Saturday September 05 2015, @08:50PM (#232737)

        Nullification is the "ancient right" of the jury.

        "juries are not entitled as a matter of right to refuse to apply the law — but they do have the power to do so when their consciences permit of no other course." -- R. v. Krieger, 2006 SCC 47 (Canada)

      • (Score: 0) by Anonymous Coward on Sunday September 06 2015, @04:17PM

        by Anonymous Coward on Sunday September 06 2015, @04:17PM (#232998)
        >> Jurors do not have the right to willfully ignore the law.

        > Maybe not, but they still in all cases have that power.

        Undeniably true. I'd have approached the statement from the direction that jurors have the right to interpret the law such that the spirit and intent of the law is given precedence over its current wording.
    • (Score: 4, Informative) by frojack on Saturday September 05 2015, @05:47PM

      by frojack (1554) on Saturday September 05 2015, @05:47PM (#232675) Journal

      Jury nullification isn't a legal right that jurors possess.

      You might want to check your facts:

      See https://en.wikipedia.org/wiki/Jury_nullification_in_the_United_States#Court_rulings [wikipedia.org]

      If a juror indicates during voir dire that they intend to vote to nullify, they will be dismissed. But if the jury as a whole in their secret deliberations comes to that opinion, it is perfectly legal and fully within their rights.

      --
      No, you are mistaken. I've always had this sig.
    • (Score: 2, Insightful) by Anonymous Coward on Saturday September 05 2015, @08:15PM

      by Anonymous Coward on Saturday September 05 2015, @08:15PM (#232719)
      Huh if it was just about the law there wouldn't be a need for juries.

      Especially the "of your peers" thing.
  • (Score: 2) by davester666 on Saturday September 05 2015, @09:35PM

    by davester666 (155) on Saturday September 05 2015, @09:35PM (#232756)

    Doesn't matter if they are found innocent. For the rest of their lives, they will be known as child pornographers via google and their criminal history, as it will show they were arrested and charged with it.