Important Concurrence regarding myth of image distinguishability in digital image cases
05/13/2008...juries cannot distinguish between constitutionally protected images (i.e. those only "appearing to depict" actual persons) and illegal images (those actually depicting a person engaged in prohibited conduct). It is an amazing concurrence for its truth and hammering head on of decisions like the First Circuit's own decision in Nolan which is 20 years old and useless. Yet, Nolan is the most often cited case for the proposition that juries have this magical ability to distinguish real from fake images despite testimony from experts on all sides that no such ability exists even for experts.
The pdf of the opinion with my annotations can be downloaded here.
