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Criminal Jury Instructions

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7.7-5  Affirmative Defenses to Child Pornography Possession -- § 53a-196g

Revised to December 1, 2007

The state has the burden of proving beyond a reasonable doubt that the defendant committed the crime of possessing child pornography in the (first / second / third) degree.  If you are satisfied that the state has proved the elements of this crime beyond a reasonable doubt, you must consider whether the defendant has proved by a preponderance of the evidence (his/her) affirmative defense to that crime.

<Insert Affirmative Defense, Instruction 2.9-1.> 

A.  Affirmative defense under § 53a-196g (1):

The defendant must prove by a preponderance of the evidence the following elements: 

Element 1- Number of visual depictions
The first element of the defense is that the defendant possessed fewer than three visual depictions of child pornography.

Element 2 - Unknowingly possessed
The second element is that the defendant did not knowingly purchase, procure, solicit or request such visual depictions or knowingly take any other action to cause such visual depictions to come into (his/her) possession. 

Element 3 - Reasonable steps to destroy
The third element is that the defendant promptly and in good faith took reasonable steps to destroy each such visual depiction without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof, or reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.

Conclusion

<Substitute for the concluding paragraph in the offense instruction.>  If you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements of the crime of possession of child pornography, you shall then find the defendant not guilty and not consider (his/her) affirmative defense. 

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements, then you shall consider the defendant's affirmative defense.  If you unanimously find that the defendant has proved (his/her) affirmative defense by a preponderance of the evidence, then you shall find the defendant not guilty.  If you unanimously find that the defendant has not proved (his/her) affirmative defense by a preponderance of the evidence, then you shall find the defendant guilty.

B.  Affirmative defense under § 53a-196g (2):

The defendant must prove by a preponderance of the evidence that (he/she) possessed a visual depiction of a nude person under sixteen years of age for a bona fide artistic, medical, scientific, educational, religious, governmental or judicial purpose.  <Describe the defendant's claims.> 

Conclusion

<Substitute for the concluding paragraph in the offense instruction.>  If you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements of the crime of possession of child pornography, you shall then find the defendant not guilty and not consider (his/her) affirmative defense. 

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements, then you shall consider the defendant's affirmative defense.  If you unanimously find that the defendant has proved (his/her) affirmative defense by a preponderance of the evidence, then you shall find the defendant not guilty.  If you unanimously find that the defendant has not proved (his/her) affirmative defense by a preponderance of the evidence, then you shall find the defendant guilty.


 

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