Legalese Column: What Happens at an Obscenity Trial

This article originally ran in the June 2017 issue of AVN magazine. Click here to see the digital magazine. In the March and April issues of AVN magazine, this columnist addressed the specter of anti-porn prosecutions and what to watch out for when the police are at your door. This month we focus on what comes next once the search, seizure, grand jury subpoenas and indictment have happened. That’s when you head to court—and the trial of an obscenity case is not a pretty picture. First, figure your attorney will file a blizzard of motions. Don’t expect a motion to dismiss to be granted. However, pretrial motions serve a very important purpose. Federal judges aren’t generally in the business of trying obscenity cases, as there have actually been damned few of them—and for that matter, neither are state judges. (The focus here is federal cases.) Pretrial motions can properly address admissibility of evidence and jury instructions; they also serve to preserve issues for appeal. Now, let’s get real here. Federal criminal prosecutions as a general proposition net a 90-something percent conviction rate. Defendants in obscenity cases do a little better, but the Department of Justice is not in the habit of getting run over by members of the First Amendment Lawyers Association. In fact, FALA was probably the motivating factor in the Meese Commission’s recommendation that the DOJ create a federal obscenity strike force of some sort. The strike force was created during the Reagan-Bush era; killed during the Clinton administration; revamped during the Bush II era; and killed during the Obama administration. You can figure a comeback now that the Republicans are back in power. So, once the judge has addressed the pretrial motions, trial time arrives—eventually. Continuances are a way of life in federal courts. First, let’s consider the jury. A defendant in a federal criminal case has a right to a 12-member jury, and if it convicts, that conviction must be unanimous; however, the defendant has little to say about who is on the jury and receives little information about the potential jurors. Rather, in most federal cases, only the judge questions the potential jurors, though attorneys for both sides are sometimes asked for input on those questions—and not that many questions are asked. The defense and the prosecution each are allowed a few “peremptory challenges,” which means the ability to bump a potential juror without giving a reason. The jury winds up being 12 people (and a few alternates) who, as the saying goes, couldn’t dodge jury duty (although doing that is becoming increasingly difficult). Consider the circumstances here: Historically (meaning thousands of years ago in England, from whence most of our law arose), the law and the church were not separate. There was the King’s Bench and the Queen’s Bench, the appellate tribunals that made the law. That is the reason courtrooms now look like churches inside—and if you don’t believe it, go into any courtroom and look at it. The seats generally resemble pews. Now, first to come up in the trial will be the evidence that isn’t very interesting: Proving that the defendant was involved in the distribution of the charged materials. Usually, for the government this is a “can of corn,” in baseball lingo. Although, the government messed that up in the Evil Angel trial some years back, resulting in the judge throwing out the case. Now, the absurd part. Here you are in a courtroom in a temple of government, a very formal setting. Twelve jurors and some alternates, who never met before, and who certainly have never discussed their sexual preferences with each other (or possibly anyone), are watching a movie that, anywhere outside this courtroom, almost always is consumed in a private setting. Look at the reality of this: American obscenity law is still mired in the morality of the Victorian Era, spurred on by the evangelicals, formerly and more accurately identified as the political religious right. And this trial is not likely to be held in Los Angeles, New York, Las Vegas or Miami, from where the material likely originates. Nope. You can almost be sure that you will be in the dock somewhere in the buckle of the Bible Belt. All of that is what makes obscenity trials fundamentally unfair. It seems obvious that if the jurors were given the movies to take home and watch, the results might be very different. Sexually explicit media is ordinarily consumed in private; in an obscenity trial, it is viewed in a public setting. That is absurd, which is why conviction rates historically have been pretty high. Here is an interesting fact: Experience teaches that women can be the best jurors in obscenity cases. There was a trial in Saint Louis many years back where the prosecutors managed to engineer an all-female jury. Not guilty! Back in the ’80s, the author of this column won an obscenity case in West Texas. Interviewing the jury after the trial, it turned out that a college-age woman told the rest of the jurors that she had no problem with the movie (a pretty rough one for those days in that neighborhood); the remainder of the jurors figured that if it was okay with her, it was okay with them. The problem with male jurors is that, if there is a woman on the jury, they feel it politically incorrect to approve of erotic media. There hasn’t been a federal obscenity trial in almost a decade. But figure there will be some once President Trump and Attorney General Jeff Sessions get the reelection engine running and begin courting evangelical voters. At press time, Trump had already floated one reelection TV ad. Even though Trump doesn’t have a history of practicing the kind of morality championed by the evangelicals, he will need their votes in the 2018 midterms and in 2020. Expect a move to make America “moral” again—or at least the evangelical version of morality, which might clash with “morality” as readers of this magazine understand it. And that could spell trouble for you, which is the reason for this series of columns. Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at [email protected]/* */ More information can be found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.