OVERVIEW

The defense may file a motion to limit or exclude the material shown to the jury if its probative value is substantially outweighed by the danger of unfair prejudice. In general, the government is “entitled to prove its case free from any defendant’s option to stipulate the evidence away.”[1] However, the evidence the government is entitled to put forward is subject to Rule 403, which provides that relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of … unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”[2]

If the evidence is crucial to proving an element of the crime or establishing a fact in dispute, it may be deemed probative. However, if the introduction of such evidence risks unduly influencing the jury against the defendant or creating emotional bias, the court may exclude it under Rule 403. Courts typically conduct a careful balancing test to determine whether the probative value of admitting such evidence outweighs the prejudicial impact. The decision ultimately rests on the specific facts and circumstances of each case.

When conducting such a balancing test, there are several factors that may weigh in favor of admitting the material.

• The material is more likely to be probative if it was derived from files charged in the indictment, and therefore “a part of the actual pornography possessed” rather than something extrinsic to the crime charged.[3]
• The same can be said if there is forensic evidence that the files had actually been opened/viewed/downloaded/etc.[4]

Other factors may weigh in favor of the material being more prejudicial than probative.

• The Ninth Circuit reversed a conviction for possession of child pornography where the district court “erroneously allowed the government to show excerpts from child pornography films found in the trunk of the defendant’s car,” despite it being undisputed that the defendant had never actually seen the films – only the box covers. [5]Thus, the films were deemed considerably less probative to proving the defendant’s knowing possession than the box covers that the defendant had actually seen.
• It is prejudicial to show needlessly cumulative material. For example, the Third Circuit found that “after one excerpt from each video was displayed, the probative value of the remaining excerpts became diminished because knowledge of distribution, receipt, and possession had already been established in some degree by the prior video excerpts.”[6] It is pertinent to object to the needless showing of too many pornographic images or needlessly lengthy videos.

• Displaying material that is “deeply disturbing” due to “bondage or actual violence,” or “bestiality and sadomasochism,” have been considered to “generate even more intense disgust,” thus outweighing any probative value that they might have.[7] It is more likely admissible to display less “deeply disturbing” images, or to stipulate to the violent content of the images (if relevant to the trial issues), or to stipulate simply that the images qualify as child pornography.
• The Second Circuit determined that allowing irrelevant evidence concerning the contents of pornographic videotapes beyond those that involved child pornography was overwhelmingly prejudicial.[8] It is pertinent to limit the evidence shown to only that which is the subject matter of the case at hand.
• If the material can be shown in black-and-white rather than color, or if the audio can be removed from videos, this can help limit the prejudicial effect of the evidence.

When moving to limit the showing of child pornographic material, it might be beneficial to offer to stipulate certain facts. The court will consider an offer to stipulate to elements of a child pornography offense when weighing the prejudicial and probative value of showing the evidence. Because the National Center for Missing & Exploited Children (NCMEC) maintains a database of all identified victims of popular child pornography series, it might be better to stipulate the images as child pornography rather than potentially have the victims appear to testify in court, which is emotional both for the victims and the jury. That being said, the courts are in “near-uniform agreement that the admission of child pornography images or videos is appropriate, even where the defendant has stipulated, or offered to stipulate, that those images or videos contained child pornography.”[9]

Even when child pornography is allowed to be shown to the jury, steps can still be taken to minimize the prejudicial impact.[10] For example, the First Circuit allowed 12 photos and 10 videos depicting child pornography into evidence, reasoning that “The trial judge’s job is to avoid unfair prejudice. The court is not required to scrub the trial clean of all evidence that may have an emotional impact.” In this case, the court aimed to minimize the inflammatory nature of the images by limiting the government to 10 short clips (total duration < 1 minute), playing the images only once, and issuing two cautionary instructions directing the jury to view the images in an impartial and unbiased manner, all after careful voir dire on the subject during jury selection.

There is no rule on the number of video excerpts that can be shown or on the maximum length of time that video excerpts can last, but it can nonetheless be useful to request such limitations if it is determined that it is probative to show the evidence. Historically, courts have limited the publication of evidence to 10 video clips[11], fewer than 10 images and video clips[12], 66 still images[13], and 39 still images.[14]

Courts have broad discretion in determining whether evidence is admissible under Rule 403 (“[I]f judicial restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal.”[15]). At the same time, “it is important that a reviewing court evaluate the trial court’s decision from its perspective when it had to rule and not indulge in review by hindsight.”[16] The trial court must know precisely what the evidence contains “in order for its weighing discretion to be properly exercised and entitled to deference on appeal.”[17] For a court to properly exercise its discretion, it must review all of the evidence before deciding whether or not to admit it.

[1] Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997)

[2] Fed. R. Evid. 403

[3] United States v. Dodds, 347 F.3d 893, 898 (11th Cir. 2003); United States v. Ganoe, 538 F.3d 1117, 1124 (9th Cir. 2008)

[4] United States v. Ganoe, 538 F.3d 1117, 1124 (9th Cir. 2008)

[5] United States v. Merino-Balderrama, 146 F.3d 758 (9th Cir. 1998); United States v. Ganoe, 538 F.3d 1117, 1124 (9th Cir. 2008)

[6] United States v. Cunningham, 694 F.3d 372, 390 (3d Cir. 2012)

[7] United States v. Cunningham, 694 F.3d 372, 390 (3d Cir. 2012); United States v. Curtin, 489 F.3d 935, 964 (9th Cir. 2007); United States v. Loughry, 660 F.3d 965, 974 (7th Cir. 2011); United States v. Harvey, 991 F.2d 981, 995 (2d Cir. 1993)

[8] United States v. Harvey, 991 F.2d 981, 996 (2d Cir. 1993)

[9] United States v. Cunningham, 694 F.3d 372, 391 (3d Cir. 2012); United States v. Polouizzi, 564 F.3d 142, 153 (2d Cir. 2009); United States v. Schene, 543 F.3d 627, 643 (10th Cir. 2008); United States v. Ganoe, 538 F.3d 1117, 1123 (9th Cir. 2008); United States v. Morales-Aldahondo, 524 F.3d 115, 120 (1st Cir. 2008); United States v. Sewell, 457 F.3d 841, 844 (8th Cir. 2006); United States v. Dodds, 347 F.3d 893, 898 (11th Cir. 2003)

[10] United States v. Morales-Aldahondo, 524 F.3d 115, 120 (1st Cir. 2008); United States v. Ganoe, 538 F.3d 1117 (9th Cir. 2008)

[11] United States v. Ganoe, 538 F.3d 1117, 1124 (9th Cir. 2008)

[12] United States v. Schene, 543 F.3d 627, 643 (10th Cir. 2008)

[13] United States v. Dodds, 347 F.3d 893, 898 (11th Cir. 2003)

[14] United States v. Becht, 267 F.3d 767, 769 (8th Cir. 2001)

[15] Gov’t of Virgin Islands v. Albert, 241 F.3d 344, 347 (3d Cir. 2001)

[16] Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997)

[17] United States v. Curtin, 489 F.3d 935, 957 (9th Cir. 2007)