Seventh Circuit sets rules for CP evidence

An Indiana man was found guilty of distribution of child pornography. The problem? There was no evidence to demonstrate that he distributed any child pornography.

He was a second-level administrator of a website that was used to share child pornography, and he admitted to viewing images on the site. He thanked users for posting, promoted and deleted users, and other administrative tasks. Nearly 100 of the 450 or so users posted images, but no evidence was admitted to show that he was one of them.

The prosecution sought to admit photos of hardcore child pornography found in the defendant's home in order to demonstrate "'intent and motive' to join the conspiracy to distribute child pornography." The problem, as the Seventh Circuit found, was that these images were not posted on the site and only demonstrated possession. Further, the government had less prejudicial images that could have been introduced instead of the hardcore images.

On appeal, the Seventh Circuit reversed, finding that the court (1) did not exercise its FRE 403 discretion because it did not review the images before presenting them to the jury, (2) "its probative value was not substantially outweighed by the risk of unfair prejudice," and (3) the admission was not harmless error. With regard to 403 discretion, the court noted, "One cannot evaluate in a Rule 403 context what one has not seen or read."

The case is United States v. Loughry, 660 F.3d 965 (7th Cir. 2011).