“The Mercer-Kinser Rule” – Sixth Circuit Endorses Use of Bookmarks and Sexualized Texts to Prove Knowledge and Intent in Digital-Age Child-Pornography Prosecutions

1. Introduction

United States v. Matthew Mercer-Kinser, No. 24-1227 (6th Cir. Aug. 13 2025), is the Sixth Circuit’s latest published decision addressing the evidentiary and constitutional contours of child-pornography prosecutions in the Internet age. The panel (Stranch, Bush & Nalbandian, J.J.) affirmed Mr. Mercer-Kinser’s conviction for knowingly receiving child pornography under 18 U.S.C. § 2252A(a)(2)(A).

Although the opinion touches familiar terrain—sufficiency of the evidence, Rule 404(b) disputes, and First-Amendment overbreadth—it also forges a notable doctrinal development: the court explicitly approves admitting (1) mere website bookmarks whose titles evince a sexual interest in minors (R-g-i-f—Raping Girls Is Fun; JBPill—Jailbait Pill) and (2) sexually charged text messages with a minor, as circumstantial proof of the defendant’s knowledge and intent. Together these holdings create what practitioners will soon call the Mercer-Kinser Rule: ancillary digital artefacts—bookmarks, search terms, and sexualized conversations—are admissible, despite First-Amendment concerns, when they make it more probable that the defendant knowingly sought or received illegal images.

2. Summary of the Judgment

The court rejected three appellate claims:

• Sufficiency of the evidence. Viewing the record in the light most favorable to the verdict, a rational juror could find that the seven contested images were child pornography and that Mercer-Kinser knowingly received them. The panel also reaffirmed that the “lascivious exhibition” determination is a fact question for the jury.
• Evidentiary error. The district court did not abuse its discretion in admitting (a) titles of bookmarks, and (b) text messages with the defendant’s daughter, because both sets of evidence were relevant to knowledge, intent, and absence of mistake under Rule 404(b).
• Constitutional attack on § 2252A. Facial and as-applied First-Amendment challenges failed. The statute’s scienter requirement cures overbreadth, and the government’s use of protected speech as evidence does not violate the First Amendment.

Accordingly, the conviction (188-month sentence and lifetime supervised release) was affirmed.

3. Analysis

3.1 Precedents Cited and Their Role

• United States v. Brown, 579 F.3d 672 (6th Cir. 2009) & Dost factors – Guided the jury-question framework for “lascivious exhibition.”
• Chance, 306 F.3d 356 – Limited sufficiency appeals to theories raised below but recognized broader review if trial colloquy shows otherwise.
• Soto, 794 F.3d 635 – Reaffirmed that juries, not judges, decide statutory elements.
• Mitchell, 508 U.S. 476 – Established that the First Amendment does not bar evidentiary use of speech to prove motive or intent.
• Tagg, 886 F.3d 579 – Confirmed scienter cures overbreadth in firearms context, cited here for analogous reasoning under § 2252A.
• Various “Rule 404(b)” precedents (Bell, Libbey-Tipton, Boyd) guided the three-step test for other-acts evidence.

3.2 Court’s Legal Reasoning

3.2.1 Sufficiency & Jury Province

The panel conducted its own in camera inspection of the seven images (a practice anchored in Bose, 466 U.S. 485) and concluded that a thousand words are not necessarily worth a picture; the explicit sexual focus and presence of adult genitalia rendered each depiction lascivious. Because the images were stored in the phone’s DCIM folder—requiring affirmative steps—the knowing receipt element was satisfied.

3.2.2 Admissibility of Bookmarks

The defense argued that bookmarks were “pure speech” and lacked proof of access. The court disagreed: Rule 401’s any tendency threshold was met because saving links with titles such as Raping Girls Is Fun makes it more likely the user intended to view illegal material. Citing Mitchell, the panel held that the First Amendment does not shield relevant speech from evidentiary use. The ruling also clarifies that prosecutors need not prove defendant opened the link; bookmarking itself can speak to intent.

3.2.3 Rule 404(b) & Sexualized Texts

Because the defense theory was I seek only legal “child erotica,” not pornography, and the illegal images were accidental, intent and mistake were squarely in dispute. The father-daughter texts—probing her views on child–adult sex and urging secrecy—directly rebutted accident. The panel reviewed for (1) occurrence, (2) proper purpose, (3) unfair prejudice. Finding the texts “no more lurid than the charge itself,” the court deemed them admissible. Importantly, this is the first published Sixth Circuit opinion expressly allowing sexually graphic conversations with minors as Rule 404(b) proof of intent in a digital-image case.

3.2.4 First-Amendment Challenge

Relying on longstanding precedent (Brown, § 2252A’s mens rea), the court rejected facial overbreadth. The as-applied claim failed because the government used the defendant’s protected speech as evidence of mindset—a practice the Supreme Court expressly permits.

3.3 Potential Impact

• Evidentiary Playbook. Prosecutors in the Sixth Circuit (and likely beyond) can confidently introduce digital artefacts—bookmarks, search history, text conversations—to prove knowledge/intent, even without direct proof the defendant opened a link or where the artefact involves otherwise protected speech.
• Defense Strategy Adjustments. Defense counsel must now anticipate that “innocent-speech” evidence can still come before the jury. Pre-trial suppression motions may need to focus on Rule 403 balancing rather than First-Amendment theory.
• Child-Pornography Jury Instructions. The opinion re-emphasizes that the Dost factors are non-exclusive, and juries remain the ultimate arbiters—courts should resist defense invitations to rule images non-pornographic as a matter of law.
• Digital-Privacy Investigations. Agents can rely on phone-forensics showing gallery placement (DCIM folder) to infer user-initiated saving; this will likely be cited in future sufficiency disputes.
• First-Amendment Litigation. The decision adds Sixth-Circuit weight to the proposition that scienter-based criminal statutes survive overbreadth attacks, and that protected speech is admissible when used for non-speech purposes (intent, motive).

4. Complex Concepts Simplified

• Lascivious Exhibition. A photo need not show nudity; it is enough that the image focuses on a child’s genitals in a sexualized manner. Jurors use six “Dost factors” as guideposts, not a rigid test.
• Rule 404(b). Generally bars “bad-character” evidence but allows “other acts” to show things like intent or absence of mistake. Courts follow a three-step analysis: (1) Did the act occur? (2) Is it offered for a proper, non-propensity purpose? (3) Is its probative value substantially outweighed by unfair prejudice?
• Overbreadth. A statute is facially overbroad if it punishes a substantial amount of protected speech relative to its plainly legitimate sweep. Requiring the defendant to know the material is illegal (scienter) narrows the statute and usually cures overbreadth.
• Sufficiency vs. Admissibility. Sufficiency asks whether admitted evidence could convince a rational juror; admissibility asks should that evidence have been shown in the first place. The Sixth Circuit reviewed both but stressed their conceptual separation.

5. Conclusion

United States v. Mercer-Kinser will stand as a pivotal Sixth-Circuit decision for digital-era child-pornography cases. Its two chief takeaways are:

1. The Mercer-Kinser Rule: Bookmarks, search terms, and sexualized texts—even if “pure speech”—are admissible to prove intent and knowledge, so long as their probative value is not substantially outweighed by unfair prejudice.
2. Jury Primacy in Lasciviousness. Courts should rarely, if ever, remove allegedly pornographic images from the jury’s consideration; whether an image is lascivious remains a classic fact question.

By harmonizing digital-forensic realities with established evidentiary doctrine, the Sixth Circuit has supplied prosecutors with a robust toolkit and signalled to defendants that arguments grounded solely in the First Amendment will have limited traction where ancillary speech is marshalled to prove mental state. Future panels—and perhaps other circuits—are poised to cite “the Mercer-Kinser Rule” when similar evidentiary battles arise in the ever-evolving landscape of cyber-sexual-exploitation litigation.