The majority nevertheless finds fault with the CPPA because it believes that the terms “appears to be” and “conveys the impression” are highly subjective and could be enforced “in an arbitrary and discriminatory fashion.” Majority Op. at 1095. Once again, I disagree. With regard to the apparent age of the depicted individuals, the government can use the same type of objective evidence that it relied on before the CPPA went into effect. For example, in cases involving prepubescent individuals, the government can show the jury the pictures and the jury can determine for itself whether the virtual image “appears to be” of a minor.
See e.g. United States v. Arvin, 900 F.2d 1385, 1390 n. 4 (9th Cir.1990) (citing a jury instruction that requires the members of the jury to decide whether the prepubescent girls are “minors” based upon their own “observation of the pictures”),
cert. denied 498 U.S. 1024, 111 S.Ct. 672, 112 L.Ed.2d 664 (1991). In cases in which the depicted children have reached puberty, the government can call expert witnesses to testify as to the physical development of the depicted person, and present testimony regarding the way the creator, distributor, or possessor labeled the disks, files, or videos.
See e.g. United States v. Robinson, 137 F.3d 652, 653 (1st Cir.1998) (noting that the pornographic photographs listed the ages of boys depicted). Based on these examples, I agree with the First Circuit which found that the standard for evaluating the key provisions of the CPPA “is an objective one.”
Hilton, 167 F.3d at 75. “A jury must decide, based on the totality of the circumstances, whether an unsuspecting viewer would consider the depiction to be an actual individual under the age of eighteen engaging in sexual activity.”
Id.