Wednesday, January 10, 2018

6th Circuit issues new jury instructions for sex offenses stressing what prosecutors "need not" prove

The Sixth Circuit this morning issued three newly amended jury instructions (and additional updated commentary and title changes). Two of the changed instructions deal with sex offenses, and both were changed to highlight what prosecutors "need not" prove. Interestingly, much of the changes come from unpublished case law.  

The court provided an official summary (shown below), which isn't all that helpful:













Looking at the new instructions themselves, as to § 2251(a), the instruction now states the following:
"it is not necessary that the government prove that the defendant took the pictures," or "that the defendant knew of the interstate or foreign nature of the materials used to produce the visual depictions that the defendant knew of the interstate or foreign nature of the materials used to produce the visual depictions." 
The commentary cites the 2017 decision in United States v. Lively, for the proposition that the "government need not prove that the defendant knew of the interstate or foreign nature of the materials used to establish the jurisdictional hook."

The commentary also cites a 2017 unpublished opinion, United States v. Sibley, which "approved an instruction stating that the government need not prove that the defendant intended to share the visual depiction with others."

As to § 1591(a)(1), paragraph (1)(B)(ii) now states: 
"If you find that the defendant had a reasonable opportunity to observe [insert name of person as identified in the indictment], the government need not prove that the defendant knew or recklessly disregarded the fact that [insert name of person as identified in the indictment] was under the age of 18.]"
As support, the commentary cites the 2017 unpublished decisions in United States v. Jackson and United States v. Davis. The commentary gives this description of Jackson: "the panel concluded that the evidence was sufficient that defendant recklessly disregarded the victims' age; that defendant's initial belief that victims were of age did not warrant reversal when they later encountered reasons to doubt that belief; and that the standard of reckless disregard entitled juries to consider many different types of facts, including 'the victim's appearance or behavior, information from the victim, or others, and circumstances of which a defendant was aware, such as the victim's grade level in school, or activities in which the victim engaged.'"

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