When a criminal lawyer takes a possession of obscene materials case to trial, the very last thing that will happen before the jury deliberates are the jury instructions. During this phase of the trial, the presiding judge will instruct the jury on the law that they are obligated to follow when making their decision.
Jury instructions are divided into two categories. The first category includes jury instructions that are the same in every criminal trial. Such as the definition of reasonable doubt. The second category is case specific. Depending on the charges filed, the court will read a different jury instruction for each offenses charge. These instructions are not made up by the judge, but were actually written word for word by the Florida Legislature.
In some instances, a criminal lawyer may identify a unique issue or question that requires the drafting of a special jury instruction. When this occurs, both the prosecutor and the criminal defense lawyer will have the opportunity to present proposed jury instructions to the judge. Ultimately, it is the judge and not the prosecutor or the criminal defense lawyer who make the final decision about what special instruction is read to the jury, if any.
Depending on the nature of the crime charged, will depend on what the instructions say. Some instructions are tailored to address drug crimes, others violent crime, and yet others sex crimes like possession of obscene materials.
These instructions not only explain the legal elements that must be proven by the prosecution, but they often times include definitions for legal terms that are used in the instructions. For example, in a possession of obscene materials case, the jury instructions include a definition for the term “prurient interest,” which is a legal term used in the portion of the jury instructions that address the prosecutor’s burden of proof.
In a possession of obscene materials case, the jury instructions contain lengthy explanations as to what is considered obscene and what is not. While it is easy to identify some obscene materials, it may not be easy to identify materials that are not obscene, even though they may be explicitly sexual in nature. In other words, a fine line can exist between materials that are considered obscene and materials that are considered literary, artistic, political expression, or scientific.
In a possession of obscene materials case, the following jury instruction is extremely important because it addresses pornography without saying so directly. At the end of a trial for possession of obscene materials, the jury will be read the following word-for-word:
“Sex can be a legitimate subject for literature, art, scientific inquiry, or political argument, an such serious treatments of sex, even if appealing to the prurient interest and patently offensive, cannot be obscene.”
Not only does this include pornography that is in photographic or movie content, but intimate literature. Equally protected are scientific studies that concern the explicit details of sexuality, such that they may be considered prurient and patently offensive.
For example, it would not be obscene to possess a book on sexual positions or how to best give one’s partner orgasm. Clearly such subjects are prurient and would likely be considered offensive, but they are not legally obscene. Therefore, possession of such materials would not qualify within the type of conduct criminalized as possession of obscene materials under Florida Law.
Again, as a criminal lawyer it is important to emphasize that contemporary norms vary from generation to generation and community to community. What may be considered obscene in central Florida may be considered common place in Miami Beach.
Ultimately, my experience as a criminal defense lawyer has taught me a simple concept: apply common sense. If the materials in question are legit pieces of literature, art, political expression or science, then they are not obscene. If the materials fall outside of that category then the defendant may have a problem.