Rule 403:  Courts Should View Child Porn if Defense Moves to Exclude as Unfairly Prejudicial…

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


Jurors in criminal trial are sometimes called upon to view difficult, disturbing pieces of evidence. This is particularly so in cases of violence and sex offenses, especially child pornography cases. In fact, it is probably easier for jurors to view photographs and/or videos depicting images of the aftermath of a violent offense than it is to view photographs and/or videos of child pornography. Many times, when the question of whether the images are in fact child pornography is not in issue, the Government and criminal defense attorney will stipulate to the jury that evidence is in fact child pornography. In those cases where neither party wants to proceed on the basis of a stipulation, the Government must allow the defense to inspect the evidence it plans to offer into evidence so the defense lawyer can prepare a proper defense. This process provides defense counsel with graphic details of the child pornography the Government will rely upon to make its case. These details often inform defense counsel of the level of prejudice the images/videos of children being sexually exposed and/or assaulted will have on the jury.


What is the criminal defense lawyer to do? The U.S. Third Court of Appeals on September 18, 2012 offered strong suggestions on this question in United States v. Cunningham. The Third Circuit joined the Ninth and Seventh Circuits in adopting the evidentiary procedure that should be utilized by the Federal district courts in dealing with the admission of such highly prejudicial evidence.


In September 2010, David L. Cunningham was sentenced to 210 months in prison and an additional 20 years of supervised release by U.S. District Court Judge Arthur J. Schwab following Cunningham’s conviction for the receipt, possession and distribution of child pornography. At Cunningham’s trial, conducted in the Western District of Pennsylvania, Judge Schwab allowed the Government, over the objection of Cunningham’s defense counsel (Office of the Federal Public Defender), to show the jury two videos containing seven clips depicting samples of the child pornography possessed by Cunningham. The seven clips totaled two minutes. The images depicted were extremely graphic and surely caused the jurors to have tremendous prejudice against Cunningham.


Cunningham was arrested in June 2007 in connection with an undercover online investigation conducted by the Pennsylvania State Police into “peer-to-peer file sharing networks.” These file sharing networks allow individuals to share data contained in each other’s computer files, including child pornography. As part of its investigation, State Police investigators downloaded six movies depicting “prepubescent children engaging in sexual activity.” Investigators promptly obtained a court order to identity the IP address that had shared the files containing the movies. That IP address led investigators to a computer at a residence shared by Cunningham and his two siblings. They obtained a search warrant for the residence where they seized a computer from Cunningham’s bedroom. A preliminary review of the computer’s hard drive revealed that 36 of its 212 shared files contained child pornography. Cunningham admitted that 20 to 30 percent of the material on his computer was child pornography. A subsequent “forensic analysis” revealed that 46 of the computer’s 212 shared files contained child pornography.



Prior to trial, Cunningham’s attorney filed a Motion in Limine Concerning Pornographic Images and File Names under Federal Rule of Evidence 403 requesting that the trial court prohibit the Government from showing any of the child pornography videos obtained from Cunningham’s computer. Rule 403 requires the trial court to conduct a balancing test to determine if evidence has “probative value” or “is substantially outweighed by the danger of one or the more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting  cumulative evidence.”


The Rule 403 motion triggered a contentious debate between defense counsel and Judge Schwab who apparently had an ongoing strained relationship with the Federal public defender’s office. Cunningham’s attorney informed Judge Schwab that she was “stipulating that the government exhibits constituted child pornography.” The judge nonetheless denied the motion, allowing the Government to publish “representative samples of the Child Pornography instead of the entire ‘collections,’ as well as the names of the various files in the ‘collection.’” As for the defense counsel’s stipulation, Judge Schwab said “the parties may (but are not required to) stipulate that the child pornography evidence constitutes child pornography for the purposes of the Indictment.” Pursuant to the court’s directive, the Government and defense counsel agreed to the following stipulation:


“[T]hat the video files obtained from IP address  on June 19, 2007, constitute visual depictions of real children under the age of 18 engaging in sexually explicit content. The parties further stipulate and agree that the video files recovered from [Cunningham’s] computer on July 17, 2007, constitute visual depictions of real children under the age of 18 years of age engaging in sexually explicit conduct.”


Subsequent to this stipulation, the Government provided defense counsel with access to the “video clips” it planned to introduce at trial. In response, defense counsel filed a Motion to Limit Evidence of Child Pornography. The motion contained graphic descriptions of the video excerpts the Government planned to show the jury. (While most appellate court decisions dealing child prosecutions try to avoid subjecting “the reader to the graphic and disturbing details of the pornography,” the Third Circuit felt it had to recite the descriptions used in defense counsel’s motion to understand “the character of the issues” confronting the court.)


We reluctantly agree, and will recite the motion’s descriptions of the child pornography in question, but we cannot, in good conscience, recite the “more graphic detail[s]” of the child pornography evidence described by the Third Circuit in the body of its opinion.


Defense counsel’s motion described the Government proposed excerpts as follows:


“These clips include graphic and haunting images of child pornography. Specifically, they include a close up of an adult woman licking a very young female child’s genitalia – so young, in fact, the child appears to be a toddler; videos of penetration; several videos depicting children tied up and/or blindfolded, including images where a young, prepubescent girl was penetrated by an adult male while her ankles and wrists appeared to be bound to a table. Several videos showed the faces of the children. In every image where a face is shown, the body (specifically, breasts, genitalia, and lack of pubic hair) clearly, and unequivocally, proves that the image portrays a child. In one, a young girl is seen performing oral sex on an adult male, who ejaculates on her face, which is openly displayed for the camera.”


When arguing before the court about the admissibility of this evidence, the Government conveniently failed to provide Judge Schwab with a description of the video excerpts it proposed to use. Defense counsel was forced to provide Judge Schwab with the aforementioned descriptions, calling the depictions “obscene, violent, and humiliating, necessarily conjuring feelings of disgust and blind rage.” Defense counsel suggested that if the court was inclined to allow this horrific evidence, it should limit the evidence in four ways: 1) only still images of any video should be shown; 2) no images, whether still or part of a video, should display bondage or actual violence, including the penetration of prepubescent children by adults; 3) no audio should accompany any of the videos; and 4) the faces of any minors should be obscured from all images.


In response to the motion, the Government agreed not to use audio in the excerpts, but strenuously objected to the other three limitations proposed by defense counsel as an effort “to sanitize, distort and mitigate the force of evidence that constitutes the very evidence of the offenses charged.” The Government argued that even with a stipulation, it still bore the “extremely high burden” to prove that Cunningham “knowingly distributed, received and possessed these images; that he was aware of their character as child pornography; [and] that he was aware that images depicted real minors engaging in sexually explicit conduct.”


We find the Government’s argument disingenuous. First, State Police investigators could have established the knowing intent to receive, possess, and distribute child pornography by testifying about the details of their investigations and Cunningham’s damming confession, in which he admitted searching for and viewing child pornography.  In addition, Cunningham offered to stipulate that the evidence was child pornography thereby agreeing that the jury would be instructed that the images were in fact child pornography; the stipulation also expressly conceded that the images depicted minors (anyone under 18 years of age) engaged in “sexually explicit conduct.”  With the investigator’s testimony regarding the background investigation, along with Cunningham’s admissions, the Government essentially had the proverbial “open and shut” case.  But for whatever reason, it wanted jurors to view the horrible images of child pornography detailed in defense counsel’s motion to exclude.


The Government tried to justify its position by saying the jury should be allowed to see the horrific images so it could “fully appreciate the nature of child pornography crimes, which necessitates consideration of the images themselves.” That’s utter nonsense. The crime of child pornography was not on trial; Cunningham was on trial for receiving, possessing, and distributing child pornography. The Government did not bear any burden to educate the jury about the “nature of child pornography.” The term itself speaks to the “nature” of the offense. Thus, the Government’s only burden was to convince the jury beyond a reasonable doubt that Cunningham received, possessed and distributed child pornography. Federal juries do not impose, or even influence, sentencing; thus, the Government had no legitimate interest in provoking “blind rage” in the jury to secure a stiff prison sentence.


The Government’s absurd argument was sufficient for Judge Schwab. He denied defense counsel’s motion to exclude with the condition that the Government not use audio with the videos. Significantly, Judge Schwab allowed the highly prejudicial evidence without conducting a Rule 403 balancing analysis. This omission did not sit well with defense counsel who informed the judge during the last pre-trial conference held in April 2008 that it planned to motion for reconsideration of the video excerpts’ admissibility with a specific request that Judge Schwab personally review the excerpts prior to ruling. The judge was not impressed, immediately denying the motion, informing counsel that she had “had plenty of time to file motion after motion, which [counsel had] done.” Revealing his frustration with defense counsel’s tactics, Judge Schwab chastised counsel by telling her that the court had “ruled again and again and again”; and was “sorry” counsel did not “like it; but the court would not allow counsel to “come in every day and give us another snapshot and more motions, and next day another snapshot and more motions.” Although frustrated, Judge Schwab gave counsel until 4:00 p.m. that day to file its stated motion.


Defense counsel complied with Judge Schwab’s directive. In this motion, defense counsel asserted that “someone else” had downloaded the videos in question, and in addition to his stipulation, Cunningham agreed that “whoever possessed, received and distributed those images would know that they depicted real children engaging in sexually explicit activity.” Defense counsel, therefore, posited there was “little value in presenting the video excerpts,” especially considering “the uniqueness and significance of this type of contraband.” Defense counsel concluded her motion with a request that the video excerpts either be declared inadmissible or subject to further limitations. The motion also closed with a request that Judge Schwab “view the video excerpts prior to making a ruling on their admissibility.”


Four days later Judge Schwab denied defense counsel’s motion, saying that she had cited “no case precedent for its proposition that the child pornography must be viewed by the Court or that it is a necessary exercise of the Court’s discretion to do so.” Judge Schwab added that the “descriptions [of the video excerpts] [were] sufficient for [him] to rule [on the past and pending motions], since the descriptions [were] quite telling of the images and their graphic nature.”

The case then proceeded to trial, and as anticipated by defense counsel, “several jurors” on voir dire responded they would “have difficulty being impartial” and had to be excused. When informed that the video excerpts would show children under eight, one juror in a sidebar with the judge stated it would be difficult to be impartial and another said she would be distressed by “portrayals of children as young as toddlers being molested.” Both were also excused.


The Third Circuit then described the video excerpts in complete detail—something we elect not to do here. Suffice it to say that the excerpts would put almost any juror in a state of “blind rage” against the defendant. On appeal, the Third Circuit addressed the primary issue associated with the admission of the excerpts—that Judge Schwab should have viewed the excerpts prior to allowing them into evidence. The Government justified this judicial omission, telling the appeals court that Judge Schwab had “no duty to view the video excerpts because [he] understood the content and character of the excerpts … from the summary that Cunningham had provided to the [judge].”


While announcing that “the question presented for resolution has seldom been addressed,” the Third Circuit found that Judge Schwab should have indeed viewed the video excerpts under Rule 403 prior to allowing them in evidence. The appeals court secured guidance from a 2007 en banc decision by the Ninth Circuit in United States v. Curtin and a 2011 decision by the Seventh Circuit in United States v. Loughry to reach its conclusion that Cunningham’s conviction should be reversed.


“In sum, we find both Curtin and Loughry persuasive. We agree that a district court should know what the challenged evidence actually is – as opposed to what one side or the other says it is – ‘in order for [the court’s] weighing discretion to be properly exercised and entitled to deference on appeal.’ We also agree that there may be instances where a district court can properly decline to view challenged evidence when it is obvious to the court that the danger of unfair prejudice from such evidence substantially outweighs any probative value that it might have.


“Thus, we conclude that, speaking generally, a district court should personally examine challenged evidence before deciding to admit under Rule 403. However, as Loughry reflects, while that is the best course (‘The safest course, however, is for the court to review contested evidence for itself’), it may be that, when a court has been provided with a sufficiently detailed description of the challenged evidence, it need not undertake that further review. In other words, if, after reviewing a detailed description of the evidence, it is obvious to the court that the probative value of the evidence is so minimal that it is substantially outweighed by the danger of unfair prejudice, a court need not personally examine it. This ought not be seen as an invitation to freely deny the admission of evidence that no one of ordinary sensibilities would want to review. Any such approach would, of course, be out of keeping with the district court’s obligation, however uncomfortable, to weigh the potential probative and prejudicial impact of evidence, while considering the legitimate interests of both the prosecution and the defense.


“The video excerpts here included ‘the kind of highly reprehensible and offensive content that might lead a jury to convict because it thinks the defendant is a bad person and deserves punishment, regardless of whether the defendant committed the crime charged.’ Although we accord district courts broad discretion in making a Rule 403 determination, that discretion is not unfettered. ‘The hackneyed expression, ‘one picture is worth a thousand words’ fails to convey adequately the comparison between the impact of the … portrayal of actual event upon the viewer of the videotape and that of the spoken or written word upon the listener or reader.’ The District Court’s refusal to here to view the video excerpts to assess their prejudicial impact and instead, over objection, rely on written descriptions prior to admitting them, was ‘arbitrary … [and] unreasonable.’”


While we wholeheartedly agree with the Third Circuit, we would take it step further. A district judge should always be required to personally view challenged evidence. That is why the judge is the judge. He or she is the arbiter of what evidence to admit in a criminal trial. Evidence is sometimes difficult to view as crimes are sometimes difficult to comprehend, but anytime a judge is prepared to let a jury view a piece of evidence, she should be prepared to view that evidence before the jury does. In this case Judge Schwab had an obvious problem with the way the Federal public defender was representing her client. This was evidenced by the judge’s sarcastic comments prior to the trial and afterwards when Judge Schwab voluntarily recused himself while the case, thus preventing the Third Circuit from having to address the issue on appeal. Thus, enormous resources were expended – actually wasted – apparently because the Government was overzealous and the Judge intransient.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Specialization