Third Circuit rules that district courts must view CP videos prior to ruling on their admissibility at trial

In United States v. Cunningham, No. 10-4021 (3rd Cir. 2012), the Third Circuit held that it is substantive error for a district court to rule on a Federal Rules of Evidence 403 motion concerning the showing of child pornography videos at trial without the court first viewing the videos to determine their probative value.

Pennsylvania police had discovered child pornography being shared on Limewire and tracked it to the defendant's home where a search revealed those same files on the defendant's computer. Before trial, the defendant argued that FRE 403 prevented showing the jury videos of child pornography because he was willing to stipulate that the videos were of child pornography, thus decreasing their probative value. The court agreed to allow the videos without sound, but did not agree to review the videos prior to a decision on the 403 motion or being shown to the jury. The defendant was convicted for receipt and distribution of child pornography.

On appeal, the defendant argued that the court erred by not viewing the videos prior to ruling on their admissibility or presenting them to the jury and by not, over defendant's motion, providing potential jurors with details about the videos during voir dire (jury selection).

The Third Circuit held that unless the potential prejudice is obvious, district courts should review the evidence prior to making a 403 ruling. Because the court did not do that, the judgment was vacated and remanded for a new trial.

Here's the wording of the Third Circuit's rule:

[U]nless the Court determines that, considering the potential of unfair prejudice, the probative value of a proposed video excerpt is so minimal that it need not watch that excerpt, the Court must view the proposed video excerpts to not only assess their probative value and potential for unfair prejudicial impact but also to appropriately evaluate their admissibility in light of Rule 403's concern with redundancy.

With regard to the voir dire argument, the court determined that a decision to describe the types of content jurors may see in a child pornography case is within the discretion of the district court.

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Cal. court finds showing 25-minute video of CP to jury not overly prejudicial

A California defendant was found guilty of possession of child pornography after a 25-minute video from his computer was shown at trial. People v. Holford, 202 Cal. App. 4th 758 (2012) (Word Doc). The defendant argued the video caused undue prejudice, and in the alternative, the video should have been edited to show only part of the video.

On appeal, the California Court of Appeal noted that "child pornography is not pretty and will always be unpleasant. ... [I]t would surprise us if the jurors here were not 'sickened, disgusted, or shocked' by much of what was depicted during the video on the hard drive found in defendant's possession." Despite that, the video was highly probative and was properly admitted.

Further, the court noted that while an excerpt might have sufficed, that was not an ideal solution.

• Because of the size of the file, it would have taken approximately five minutes to transfer. Showing the entire video would prove that copying it to the computer was not accidental.
• Showing only the end of the video would have shown that it contained child pornography, but the jury might have wondered if the defendant was unaware of the end of the video.
• The first part of the video only the image of a nude child and would not have sufficiently proven sexual conduct.
• If snippets were used, the jury might have wondered what happened between the segments.

The defendant also argued that the trial court should have reviewed the video before allowing the jury to view it. The appellate court noted that the trial judge should have reviewed it, but the defendant failed to show how the decision to show the video would have been different.

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Chats between defendant and minors found inadmissible in sexual exploitation of minors case

A North Dakota man has been charged with attempted sexual exploitation of his two minor stepdaughters. Videos reveal that he used his cell phone to record the girls showering. The defendant claims he was videoing them because "he was concerned that they were taking nude pictures of themselves and texting them to friends." United States v. Rambough, 2012 U.S. Dist. LEXIS 1781 (D.N.D. 2012).

At issue is whether chat logs should be admissible where defendant, claiming to be a 19-year-old woman, communicated with both minors and adults. The government claims them to be relevant to show the defendant "has a sexual interest in minors." The defendant argues them to be irrelevant to the charge and that potential unfair prejudice outweighs probative value.

The court found that the chats with other adults "have little, if any, probative value" and do not pass the FRE 403 filter. The chats with children, however, are relevant, but should not be admissible due to potential unfair prejudice. The opinion also notes that just as the defendant claimed to be a 19-year-old woman, the minors with whom he was chatting may also have "adopt[ed] a persona." As a result, the court assumed those conversations were with adults.

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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).

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