Rosen v. United States
16 S. Ct. 434, 1896 U.S. LEXIS 2135, 161 U.S. 29 (1896)
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Rule of Law:
An indictment for mailing obscene material is constitutionally sufficient under the Sixth Amendment if it identifies the publication with reasonable certainty and alleges the material is too indecent to be placed on the record, even without specifying the exact obscene passages. The defendant's remedy for more detail is to request a bill of particulars.
Facts:
- Lew Rosen was the owner and controller of a paper called 'Broadway.'
- Rosen caused a specific issue of the paper, the 'Tenderloin Number,' to be deposited in the United States mail.
- The paper contained pictures of females in various attitudes of indecency.
- By Rosen's own direction, the pictures in the mailed edition were partially covered with lamp black that was easily erasable.
- Rosen's stated object for obscuring the pictures was to excite curiosity about the concealed content.
- The paper was mailed in a wrapper to an address in New Jersey.
- The recipient of the paper was a government agent who had sent a 'decoy letter' to solicit the material.
Procedural Posture:
- Lew Rosen was indicted in federal court for violating Rev. Stat. § 3893 by knowingly depositing an obscene paper in the U.S. mail.
- Rosen pleaded not guilty and proceeded to trial.
- A jury in the trial court returned a verdict of guilty.
- Rosen moved for a new trial, arguing the indictment was substantively defective, but the motion was denied.
- Rosen then moved in arrest of judgment on the grounds that the indictment failed to charge that he knew the paper's contents were obscene and failed to specify the obscene parts. This motion was also denied.
- The trial court sentenced Rosen to thirteen months imprisonment and a fine.
- Rosen brought the case to the Supreme Court of the United States on a writ of error.
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Issue:
Does an indictment for mailing obscene material, which does not explicitly detail the obscene content but alleges it is too offensive for the record, violate the defendant's Sixth Amendment right to be informed of the nature and cause of the accusation against him?
Opinions:
Majority - Mr. Justice Harlan
No, the indictment does not violate the defendant's Sixth Amendment rights. An indictment for mailing obscene material is constitutionally sufficient if it informs the accused of the crime charged with such reasonable certainty that he can make his defense. Here, the indictment described the paper by name, volume, and date, leaving no doubt as to its identity. The court follows the American rule, which allows for the omission of obscene matter from the indictment to avoid polluting the public record, provided the reason for the omission is stated. If the defendant needed more specificity as to which parts of the paper were deemed obscene, his proper remedy was to apply for a bill of particulars, which he failed to do. Furthermore, the statute does not require the defendant to personally believe the material is obscene; the offense is complete if he knew the contents of the paper and the paper was, in fact, of an obscene character by objective standards.
Dissenting - Mr. Justice White
Yes, the indictment does violate the defendant's constitutional rights. While American courts permit omitting obscene matter from an indictment for decency's sake, this exception is only constitutionally permissible if the indictment provides an identifying reference to the specific matter the grand jury found to be obscene. This indictment fails that test; it identifies the 12-page paper as a whole but gives no indication as to which pictures or words the grand jury based its presentment on. This defect is a substantive failure, not a mere formal error, as it makes it impossible to determine what the grand jury actually found to be criminal. A bill of particulars cannot cure a constitutionally void indictment, because it is the grand jury, not the prosecutor, that must find the facts constituting the offense.
Analysis:
This decision established a significant procedural rule for obscenity prosecutions, solidifying the American doctrine that allows obscene content to be omitted from an indictment for the sake of public decency. It effectively balances the state's interest in not spreading obscene material through its own records against a defendant's Sixth Amendment right to notice by placing the burden on the defendant to request a bill of particulars for more detail. The case also clarifies the scienter (mental state) requirement, holding that the defendant need only know the contents of the material, not that they are legally obscene, establishing an objective standard for obscenity. The dissent raises a potent counterargument about the fundamental role of the grand jury that remains a point of tension in constitutional criminal procedure.
