Commonwealth v. Rex, 469 Mass. 36

Norfolk County grand jury indicted Rex on seven counts of possession of child pornography and seven counts of being a habitual offender.
Rex moved to dismiss, contending the seven photocopies of naked children did not constitute child pornography under G. L. c. 272, § 29C and were protected by the First Amendment and art. 16.
Superior Court dismissed the indictments for lack of probable cause to arrest due to absence of evidence of a lewd exhibition.
Photocopies found in Rex’s cell were seven black-and-white, grainy images of real children under 18, admitted by Rex as his and said to come from an old pamphlet sources.
Commonwealth argued the grand jury should consider whether the photos depicted a lewd exhibition; court conducted de novo review because First Amendment implications required independent assessment.
Court held the photocopies did not depict a lewd exhibition and thus did not establish probable cause to arrest Rex; the indictment was dismissed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are the photocopies a lewd exhibition under § 29C(vii)?	Commonwealth: yes, nudity with exposed genitals constitutes lewd.	Rex: no, mere nudity in these images is not lewd.	No; photocopies not lewd.
What standard of review applies to determine probable cause for grand jury dismissal in this First Amendment context?	Commonwealth: usual probable cause standard; less strict for grand jury.	Rex: not necessary to broaden review; preserve grand jury function.	De novo review of the challenged material; independent assessment required.
Did the grand jury have evidence to support probable cause to arrest Rex for possession of child pornography?	Commonwealth: the seven photocopies show naked children with genitals visible, implying lewdness.	Rex: images lack lewdness; no probable cause.	No probable cause; indictments affirmed dismissal.

Commonwealth v. McCarthy, 385 Mass. 160 (1982) (limited procedural review of grand jury evidence; probable cause needed for arrest)
Bean, 435 Mass. 708 (2002) (de novo appellate review of photographs to assess lascivious intent)
Commonwealth v. Sullivan, 82 Mass. App. Ct. 293 (2012) (Dost factors guide lewdness analysis; nudity alone insufficient)
Commonwealth v. Kenney, 449 Mass. 840 (2007) (protective state interest in banning possession of child pornography)
Osborne v. Ohio, 495 U.S. 103 (1990) (nudity alone not lewd; First Amendment protection for non-lewd images)
New York v. Ferber, 458 U.S. 747 (1982) (state interest in protecting children allows prohibition of child pornography)