State v. Dore

Issue

In a Connecticut prosecution for possessing child sexual abuse material, must the state present expert testimony to prove that the images depict real children rather than computer-generated ones, and is the statute overbroad or vague because its text might be read to reach virtual images?

Rule

General Statutes (Rev. to 2015) section 53a-196e (a) (2) makes it a crime to knowingly possess a series of images consisting of twenty or more frames, or a film or videotape of twenty or more frames, depicting a single act of sexually explicit conduct by one child. The Connecticut Appellate Court in Dore read that subdivision together with subdivision (a) (1) and with the definition of child pornography in General Statutes (Rev. to 2015) section 53a-193 (13), which the legislature narrowed in 2004 and which limits the offense to depictions of real children while excluding virtual child pornography. Section 53a-193 (13) further provides that whether the subject of a visual depiction was a person younger than sixteen when the depiction was created is a question to be decided by the trier of fact. Under Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), a statute reaching depictions that involve no actual child is unconstitutionally overbroad, and under the Connecticut Supreme Court's decision in State v. Sorabella the prosecution is not required in every case to present expert testimony that a particular image depicts a real child.

Application

Connecticut State Police downloaded a partial video file containing apparent child sexual abuse material from a user of the eMule peer-to-peer network, traced the associated IP address, and executed a search warrant at Richard Dore's home in Shelton, where he and his wife were the only residents. Dore identified four computer devices he used and supplied the password for each. Before seizing a server from the basement, a detective previewed it and saw the eMule program running with dozens of active downloads. Dore was charged with five counts under section 53a-196e (a) (2), tried to the court, and found guilty on all five. Dore raised two constitutional challenges and two sufficiency challenges. He argued that subdivision (a) (2) is facially overbroad because it does not itself use the term child pornography and so could be read to reach virtual images that Ashcroft v. Free Speech Coalition protects. The Connecticut Appellate Court rejected that reading. Subdivision (2), the court held, must be read together with the language of subsection (a) designating the crime, which does use the term child pornography, and with the definition in section 53a-193 (13), which is limited to images of an actual child. The court agreed with the state that construing section 53a-196e (a) (2) to reach virtual child pornography would place the statute in constitutional jeopardy under Ashcroft, the very result the legislature was aware of and set out to avoid when it amended the definition in 2004. The court also noted that Dore made no factual showing that anyone had ever been prosecuted under the statute on the basis of virtual child pornography, so this was not a case for the strong medicine of the overbreadth doctrine. It rejected the facial vagueness claim for the same reasons, and rejected the as-applied vagueness claim because the statute gave Dore sufficient notice of what it proscribed and his conduct fell within its unmistakable core. The more consequential ruling in Dore concerns proof. Dore argued that the evidence was insufficient because the state never established that the images depicted real children, and that advances in image generation technology should now require the state to call a computer expert on that question. The Connecticut Appellate Court declined to create that rule, giving three reasons. First, the text of section 53a-193 (13) assigns the real child question to the trier of fact and says nothing about experts, so the trial court could properly make that finding from its own viewing of the clips and its assessment of the witnesses. Second, the court was bound by State v. Sorabella, in which the Connecticut Supreme Court acknowledged that it may sometimes be difficult for a lay observer to distinguish real from virtual images but joined the large majority of courts refusing to require expert testimony in every case. Third, and most usefully for practitioners, the record in Dore was devoid of any evidence about the technology that existed in 2016, when Dore downloaded the files, or about the ability of a trier of fact in 2016 to distinguish realistic images of virtual children from images of real children. Dore offered no documentary or testimonial evidence on either point, and the trial court noted in its articulation that he produced no evidence that any image had been generated by artificial intelligence. Citing United States v. Schram, 128 F.4th 922 (8th Cir. 2025), the court held that a defendant who contends the time has come to change the rule must present evidence demonstrating the existing technology and why it prevents a layperson from telling real images from virtual ones, since otherwise the claim rests on speculation. On the evidence actually before it, the trial court could find that the five clips depicted real children based on Dore's statements to police, the file names under which he downloaded the material, the testimony of a board-certified pediatrician who reviewed the clips, and its own viewing. The court separately rejected Dore's argument that he did not knowingly possess the material because his computer could not play the partially downloaded files, holding that he had control of the password-protected machine and therefore possession of its contents.

Conclusion

The Connecticut Appellate Court affirmed Richard Dore's judgment of conviction on all five counts of possessing child pornography in the second degree. It upheld section 53a-196e (a) (2) against both the overbreadth and the vagueness attacks by construing the statute to reach only depictions of real children, and it declined to establish a new rule requiring the state to adduce expert testimony that an image depicts a real person under sixteen. The opinion is published and binds Connecticut trial courts unless the Connecticut Supreme Court holds otherwise. The panel was unanimous and drew no dissent.

limited to images of an actual child and excludes from its

Opinion of Judge Seeley, construing the statutory definition of child pornography to defeat the overbreadth challenge.

adduce expert testimony to prove that the images depict

Opinion of Judge Seeley, declining the defendant's invitation to require expert proof that an image shows a real child.

to distinguish realistic images of virtual children from

Opinion of Judge Seeley, describing the evidentiary gap in the defendant's record about lay ability to identify virtual imagery.

Why it matters. State v. Dore sets the practical burden for the AI defense in a possession prosecution: raising the possibility that images were computer generated is not enough, and counsel who wants the argument taken seriously must introduce evidence about the technology available at the relevant time and about whether a fact finder can actually tell the difference. Dore also confirms that a state statute confined by definition to real children survives Ashcroft v. Free Speech Coalition.

Read the full opinion on CourtListener

This summary was written from the opinion itself. Every quotation above was located in the text of the decision it is attributed to. It is a summary for public education and is not legal advice.

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