The opinion of the court was delivered by: Joseph N. Laplante United States District Judge
Defendant Jonathan Tanguay has filed motions in limine, see L. Cr. R. 12.1(c), seeking rulings on the admissibility of evidence at his upcoming trial on one count of possessing child pornography, see 18 U.S.C. § 2252A(a)(5)(B). After receiving a report from a visitor to Tanguay's home, Joshua Wiggin, that Tanguay had displayed images of child pornography on his computer, the New Hampshire State Police secured a warrant to search the home for those materials. This search allegedly turned up child pornography on the computer. See United States v. Tanguay, ___ F. Supp. 2d ____, 2012 DNH 187 (denying Tanguay's motion to suppress the evidence allegedly seized in the search).
Tanguay has filed three separate motions in limine dealing with various items of anticipated evidence at trial. First, Tanguay seeks to preclude, as untimely disclosed expert testimony, anticipated testimony by a prosecution witness about "digital photography and video and the process by which a virtual image or video might be made." Second, Tanguay also seeks to preclude, as irrelevant or overly prejudicial, evidence of (a) his sexual orientation, (b) other sexually suggestive materials allegedly found in his possession, and (c) the fact that the police seized the alleged child pornography pursuant to a search warrant. Third, Tanguay seeks to preclude testimony by the prosecution's designated forensic expert about findings made by a different forensic examiner, arguing that such testimony is inadmissible hearsay and would violate the Confrontation Clause. Fourth, Tanguay seeks to prevent the prosecution from referring to the fact that his counsel has had access to the forensic evidence in the case, arguing that this would improperly suggest that Tanguay should have come forward with his own expert analysis of that evidence. Fifth, and finally, Tanguay seeks to admit a statement that an Assistant United States Attorney formerly assigned to this case made about a potential witness.
After the prosecution filed its objections to Tanguay's motions, the court heard oral argument on them following the final pretrial conference in this matter. The court now makes the following rulings on the motions in limine. These rulings, of course, are subject to reconsideration in light of developments at trial.
1. Testimony about creating virtual images
"The prosecution must prove beyond a reasonable doubt that the image is of an actual child in order to establish guilt" on a federal child pornography charge. United States v. Rodriguez-Pacheco, 475 F.3d 434, 439 (1st Cir. 2007).*fn1 In January 2012, the prosecution provided defense counsel with a report by one John Madama, expressing his opinions that certain pornographic materials allegedly found in Tanguay's possession depicted real children, and setting forth the methodology he used to reach those opinions. But, as the prosecution acknowledges, it did not provide defense counsel with a copy of Madama's curriculum vitae, or anything else describing his qualifications, until November 20, 2012, which is less than 30 days before the upcoming trial (in which the jury was selected on December 5, 2012, and evidence is scheduled to commence on December 12, 2012).
Under Rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure, "[a]t the defendant's request, the government must give to the defendant a written summary of any testimony that the prosecution intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial." This summary "must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Id. This court's Local Rules require this disclosure to occur either within 14 days of the arraignment or, if the expert witness is not at that point known to the prosecution, no later than 30 days prior to trial. L. Cr. R. 16.1(b)(3).
Tanguay argues that the prosecution missed this deadline by not giving his counsel a copy of Madama's curriculum vitae until 15 days before jury selection and that, as a result, the prosecution should be prohibited from introducing Madama's testimony at trial. The prosecution maintains that, because Madama's proffered testimony does not amount to expert testimony under Rule 702 of the Federal Rules of Evidence, it had no duty to make any Rule 16(a)(1)(G) disclosures as to Madama's testimony. The court disagrees.
Under Rule 702 of the Federal Rules of Evidence, "[a] witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise," provided, among other things, that the expert's "specialized knowledge will help the trier of fact to understand the evidence or to determine a fact at issue." The prosecution explains that Madama has experience in the area of digital photography. He will provide background information on digital photography and video and the process by which a virtual image or video might be made, including describing the complexity and cost of such an endeavor.
He will also describe certain features in the images and video (including skin appearance, hair appearance, light and shadow placement and the depiction of expressive features) that the jury should consider in reaching its conclusion on whether a particular image or video depicts a real child.
This description of Madama's anticipated testimony makes it abundantly clear that his testimony will impart his "specialized knowledge" of digital photography and video and is therefore testimony by an expert witness under Rule 702.
The prosecution nevertheless argues that Madama will offer not expert testimony under Rule 702, but "lay testimony" under Rule 701, arguing that the comment to Rule 701 "makes clear that lay testimony is permissible when the opinion is based on a layperson's personal knowledge gained through experience." But, in limiting permissible lay opinions to those "not based on scientific, technical, or other specialized knowledge within the scope of Rule 702," Fed. R. Evid. Rule 701(c), Rule 701 in fact "makes clear that any part of witness's testimony that is based upon scientific, technical, or other specialized knowledge within the scope of Rule 702 is governed by the standards of Rule 702 and the corresponding disclosure requirements of the Civil and Criminal Rules," id. advisory committee's note (2000).
The dividing line between lay opinion testimony under Rule 701 and expert opinion testimony under Rule 702, then, is marked by whether the opinion is based on the witness's specialized knowledge--rather than, as the prosecution suggests, whether the witness came by the knowledge "through experience" as opposed to training, education, or the other ways that a witness can qualify to give expert testimony. Indeed, the advisory committee's note explains that "the distinction between lay and expert witness testimony is that lay testimony results from a process of reasoning familiar in everyday life, while expert testimony results from a process of reasoning which can be mastered only by experts in the field." Id. (quotation marks omitted). The process of creating virtual images, and discerning whether that process has been employed in creating a particular image, is not "familiar in everyday life" like the subjects of permissible lay testimony recognized in the advisory commitee's note. See id.
This includes whether a particular substance appears to be a narcotic based on the witness's familiarity with that narcotic, see id., to which the prosecution attempts to analogize Madama's proffered testimony. The "process of reasoning" employed in concluding that a substance is cocaine because it looks and tastes like the cocaine the witness has used in the past, see United States v. Paiva, 892 F.2d 148, 157 (1st Cir. 1989), is familiar to laypeople and, indeed, self-evident. It is like the reasoning employed in concluding, for example, that a firearm has traveled in interstate commerce because it was found in Puerto Rico but manufactured in Massachusetts. United States v. Colon Osorio, 360 F.3d 48, 52-53 (1st Cir. 2004) (ruling that this was permissible lay opinion testimony under the "familiar process of reasoning" test). In contrast, the "process of reasoning" employed in explaining why an image depicts an actual child rather than a virtual one is ...