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September 18, 2012

Third Circuit finds jury unduly prejudiced by seeing too much child porn

A notable Third Circuit panel ruling today in US v. Cunningham, No. 10-4021 (3d Cir. Sept. 18, 2012) (avalable here), highlights the challenges (and the truly disgusting nature) of some federal child pornography prosecutions. Here is how the lengthy opinion gets started:

David Cunningham appeals the September 27, 2010 judgment of the United States District Court for the Western District of Pennsylvania sentencing him to 210 months’ imprisonment and 20 years’ supervised release based on his conviction for the receipt and distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2).  At trial, the District Court allowed the government, over Cunningham’s objection, to show the jury two videos containing seven different video clips totaling approximately two minutes as a sample of the child pornography that gave rise to the charges.  Cunningham contends that, because the Court permitted the videos to be shown without first viewing the videos to determine whether the danger of unfair prejudice substantially outweighed their probative value, the Court erred and his conviction must be reversed.  We agree that the District Court abused its discretion, not only by failing to review the videos prior to admitting them but also by allowing all of those videos to be shown to the jury, because the highly inflammatory nature of two of them clearly and substantially outweighed their probative value pertaining to the crimes charged.  Those errors were not harmless, and we will therefore vacate and remand for a new trial.

September 18, 2012 at 02:49 PM | Permalink

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Comments

LOL you just got to love the two-faced nazi fucktards!

" We agree that the District Court abused its discretion, not only by failing to review the videos prior to admitting them but also by allowing all of those videos to be shown to the jury, because the highly inflammatory nature of two of them clearly and substantially outweighed their probative value pertaining to the crimes charged. Those errors were not harmless, and we will therefore vacate and remand for a new trial."

So let me see if i understand the rules!

If the "error" is "HARMLESS" individual is shit out of luck!

If even in a case like this were the court rules the "ERROR" is NOT HARMLESS" your still fucked and get the prize of having to be dragged through the mud all over ago.

Just what the fuck must happen for the court to get off it's high horse and say "ENOUGH" is "ENOUGH" case is DEAD!
YOUR actions has KILLED IT.

Posted by: rodsmith | Sep 18, 2012 5:48:31 PM

How about the hypocrisy of this opinion! Look at page 37. "Although the videos in question were not presented to this Court, the detailed descriptions we have received show that at least two of them should clearly have been excluded under Rule 403." So, the Court held that it was an abuse of discretion for the District Court not to view the videos before the trial, but they can make the determination without viewing the videos themselves? Someone smarter than me want to explain that to me?

Posted by: Kim | Sep 18, 2012 6:35:11 PM

Defendants who go to trial in these cases usually are willing to stipulate that the images are child pornography, but the government insists on subjecting the jurors to a viewing of the vile images, for obvious reasons. Then, at sentencing, the government solemnly asserts that every time someone views child pornography, it harms the victim.

Posted by: C.E. | Sep 18, 2012 11:54:28 PM

yep C.E your right.

Which brings us right back to "Typical action of a govt two-faced nazi fucktard!"

Business at usual!

Posted by: rodsmith | Sep 19, 2012 2:17:57 AM

Kim, while i find this opinion completely baffling, it seems that the court has decided to create a evidentiary rule that all videos showing a child being raped or sexually tortured are inadmissible on the grounds of being inflammatory.

However, the court also says that the government can admit other non-"inflamatory" images such as showing children being forced to perform acts which are like totally not sex according to any 15 year old girl who signed a "virginity pledge:

The court also seems to indicate that its perfectly acceptable as being non-inflamatory to admit descriptions telling the jury what the video contained.

What i simply cannot possibly get is that all of the described video images made me feel physically ill and very revolted at the defendant and ready to send him to prison for a long time - and that was just from a description. In other words, if the goal was to avoid making the jury feel that the defendant is a dangerous icky perv who is likely to rape children and thus needs to be imprisoned you can't even describe the imags to the jury.

Yet the entire proof of the crime requires at least a description (and the defendant didn't even argue against that) and the file name. i don't think that anyone can argue that merely seeing that the defendant's computer had a file entitled "5 year old girl raped" would not be sufficient to have the jury ready to convict the dangerous icky perv before he rapes an actual five year old girl.

My conclusion is that if you really take the evidentiary rule seriously to exclude inflamatory evidence, all child pron evidence is so disgusting as to inflame the passions of the jury. Which effectively makes child porn cases impossible to prove according to the rule announced in this court opinion. Which is why the court reaches an essentialy nonesensical conclusion that pretty much any awful image can be shown to the jury as long as the judge looks at it first and removes something really bad like a very young child being raped or a little girl in bondage. Not that i suspect that any reasonable person sees a difference in horribleness between an image of a toddler receiving oral sex, a little girl performing oral sex, and a preschooler being raped. According to the court, the first two are okay - despite being highly inflamatory towards any reasonable person - and the third is out.

It just makes absolutely no sense to me because the issue of whether an image is so inflammatory as to make people see that this person must be a disgusting icky perv who needs to go to prison for having those images on his computer remain even if the alleged icky perv says that some one else put those images there.

And i agree with C.E. - since i do agree that additional distribution of those images does create at least some degree of additional harm for the victim - and the government makes that argument, it is hypocrtical - and downright sadistic to force a jury to have to view those images. Even reading the description of those images made me want to throw up.

It seems that if you really enforce the evidentiary rule these cases would be impossible to prosecute since any evidence of the nature of the images is sufficient to inflame and prejudice the jury against the denfedant. Does having the defense say "we stipulate to the fact that these images found on the defendant's computer show little girls being raped" really avoid the issue of inflaming the jury and making them ready to send the defendant to prison for a very long time? To me, that alone is sufficient to say that the defandant is a dangerous icky perv who needs to go to prison to keep him from raping children. And i believe that the vast majority of people would agree.

Erika :)

Posted by: Erika | Sep 19, 2012 6:30:49 AM

C.E. --

"Defendants who go to trial in these cases usually are willing to stipulate that the images are child pornography, but the government insists on subjecting the jurors to a viewing of the vile images, for obvious reasons."

Just so. How dare the government show the jury the central evidence in the case!

Then at sentencing, the defense will insist on calling the defendant's mommy and first grade teacher, etc., so the the court will have a "full presentation" of "who this man really is." The only thing to be omitted from the "full presentation" is the reason he's in court at all.

Far out!

Posted by: Bill Otis | Sep 19, 2012 9:31:10 AM

The concept underlying the best evidence rule is that -- rather than summarizing what is contained in the real evidence -- a fact-finder should be able to view the real evidence and determine the meaning of that evidence for itself.

However, what cases like this hold is that -- when the acts of a defendant are horrific -- we should set aside that principal and sanitize the evidence for the jury to prevent the jury from having a real human reaction to the evidence. Such a rule simply fails to understand why the Framers thought it important to have average people rather than judges or some mathematical formula viewing the evidence.

There is no prejudice from exhibits like this. The reaction of jurors to this evidence is the reaction is not an inappropriate reaction but rather the one that the law ultimately demands from the jurors to make -- are these images designed to appeal to the perverted sexual desires of some individuals or do they have a legitimate reason.

If a defendant does not want jurors to see these images, there is a simple solution -- don't commit the crime.

Posted by: TMM | Sep 19, 2012 10:01:56 AM

Bill, in what jurisdiction is the state or government not allowed to present the judge or jury any evidence at sentencing?

Posted by: C | Sep 19, 2012 10:06:57 AM

C --

"Bill, in what jurisdiction is the state or government not allowed to present the judge or jury any evidence at sentencing?"

I don't recall saying the government is not allowed to present ANY evidence at sentencing. Where was that?

Posted by: Bill Otis | Sep 19, 2012 10:26:07 AM

TMM --

"If a defendant does not want jurors to see these images, there is a simple solution -- don't commit the crime."

ALERT!!! ALERT!!! You have taken the impermissible position that the defendant might bear some responsibility for his fate. That is strictly verbotten in this venue.

Go sit in the corner.

Posted by: Bill Otis | Sep 19, 2012 10:30:28 AM

Let's be realistic. Where the defendant agrees to stipulate that the pictures depict child pornography, there is one, and only one, reason why the government seeks to introduct such graphic material. Whatever its merits, there is no reason to dispute this fact. The government hopes to rouse the anger and inflame the passions of the jury such that a not guilty verdict is impossible. It is not a factual appeal. It is a rather base, emotional appeal. As a lawyer, I've done it many times in many contexts, and I'm not coy about the reason. So when we debate the Circuit's decision, let's not pretend that we all have no "impure" motive in showing the evidence. It is not rationally necessary to present to the jury. But it sure as hell works them into a frenzy, and innocence is often lost in a frenzy.


As for sentencing, if the defendant wants to argue he is a wonderful person, I see it as more appropriate to show the pictures then, once guild has been established.

Posted by: VillageIdiot | Sep 19, 2012 11:31:19 AM

TMM:

"a real human reaction to the evidence"
"the reaction is not an inappropriate reaction but rather the one that the law ultimately demands from the jurors to make"

Abair thusa!-- You've struck gold.

Posted by: Adamakis | Sep 19, 2012 11:33:51 AM

Erika:: "My conclusion is that if you really take the evidentiary rule seriously to exclude inflamatory evidence, all child porn evidence is so disgusting as to inflame the passions of the jury. Which effectively makes child porn cases impossible to prove according to the rule announced in this court opinion."

I concur. Process over substance, so-called rights (no such thing here) over kratos nomou--rule of law.

Posted by: Adamakis | Sep 19, 2012 11:46:11 AM

Bill wrote: "The only thing to be omitted from the "full presentation" is the reason he's in court at all."

The only thing I can see that would result in the omission of a full presentation of the facts is a bar against the State presenting its evidence (I acknowledge that incompetence or malfeasance by the prosecutors is another possibility, but I am ruling that out as a reason). What then is it that I am missing that prevents the jury, assuming competent, prepared counsel on both sides, from receiving all the relevant facts relating to the sentencing decision?

Posted by: C | Sep 20, 2012 12:19:24 PM

C --

"What then is it that I am missing that prevents the jury...from receiving all the relevant facts relating to the sentencing decision?

I don't get the point of your question. This case has nothing to do with sentencing, but only with what facts the jury can be prevented from receiving at the guilt phase.

Posted by: Bill Otis | Sep 21, 2012 9:21:04 AM

Bill, you were the one who brought sentencing up in the first place as part of your brave battle against dragons made of straw. Specifically the straw dragon that the great Sir Bill Otis of Georgetown sought to slay was that a court saying that there are limits to the amount of images of children being violently sexually assaulted the prosecution can show in a case where the defendant admitted that he had illegal images of actualy children being sexually assaulted. So the illegality of the images were not in question at all.

The defendant was saying that yes the images were illegal - but that he is not guilty and not a disgusting icky perv because someone else put them on his computer. So the fact that the images included videos of preschoolers being raped was completely irrelevant to the issue of who put them on there. The court indicated that all sorts of other images which are to me just as sickening and make me ready to send that defendant to prison for a long time for being a disgusting icky perv are okay - as are file lists, summaries, etc. There is no question that the jury will be informed that the defendant's computer was found to have images of actual children experiencing horrible sexual abuse.

Now nobody is saying that the judge in issuing a sentence should not know that the defendant had the two excluded video clips - the sentencing guidelines take that into acocunt and that is the proper place to determine exactly how disgusting a particular icky perv is. However, at teh time of the trial the fact that this was allegedly an extra disgusting icky perv is irrelevant to the determination of whether he is an icky perv. i'm sorry, but if i find out that someone had a video of a preschooler being raped, all i'm thinking about is that guy needs to be locked up before he rapes an actual preschooler. And i believe that most reasonable people would feel the same way - reasonable doubt is out of the window when you place the possibility that this is someone who wants to rape preschoolers in the minds of a jury - especially since that is irrelevant to determine actual guilt. Of course, i think teh court is wrong in thinking that the jury will think that based upon only seeing images of preschoolers being raped and not other young children experiencing horrific sexual abuse.

So honey, bsaically you introduced a completely irrelevant straw dragon topic, then you boldly slayed the straw dragon. And then when someone pointed out that all you did was slay the straw dragon you created yourself you claimed that is not the topic. And it wasn't the topic was to show what a strong and skilled knight Sir Bill Otis of Georgetown is wnen it comes to battling straw dragons. In fact, i think you are the best :)

Bravo brave knight,

The Faire Maiden Erika :)

Posted by: Erika | Sep 21, 2012 2:37:31 PM

no erika! what we are saying is that the govt itself says EACH and EVERY VIEWING of child porn is DAMAGING to the child and is currently DEMANDING those convicted of viewing it...pay through the nose OVER AND OVER AND OVER AND OVER even DECADES after the photo first showes up.

So kind of friggin TWO-FACED to DEMAND the right to show them over and over to a JURY once the DEFENDANT has AGREEDED THEY ARE CHILD PORN!

to do it anyway is what most people call a "NO-BRAINER' it's being done to PISS OFF THE JURY to GUARANTEE a conviction!

and only a fucktard politician or one of the sick suckers involved in the current sex offender witch hunts! wouldn't admit it!

Posted by: rodsmith | Sep 21, 2012 8:17:53 PM

I would have to agree rodsmith. Even the defendants attorney has to be supervised by the government to view the evidence because it is so "damaging." You hear over and over and over again that every time the image is viewed the victim is re-victimized. With a 12 person jury, now you have 12 times the victim is re-victimized.

These defendants pay large amounts of money in restitution and too many years in prison to only be punished further by the sex offender registry, up to life, when they are finally released, for files that if from a file sharing program most likely were mislabeled to begin with. Using this visual evidence is just like the media looking for an emotional reaction by a headline that states "sex offender found dead in pond." The witch hunt is on for the downloaders, who aren't always looking for what they end up getting. What about going after the producers and why are we not holding the ISP's responsible or least having them block the files that are known child porn that have been identified and labeled by our own government?

Posted by: Jsmith | Sep 22, 2012 8:07:31 PM

don't forget Jsmith that damage according to the govt is counter PER PHOTO! NOT one charge for them all. EACH AND EVERY PHOTO IS A NEW CHARGE! i.e. NEW DAMAGE!


according to this!

"At trial, the District Court allowed the government, over Cunningham’s objection, to show the jury two videos containing seven different video clips totaling approximately two minutes as a sample of the child pornography that gave rise to the charges."

2 video's with 7 diff clips.... that 's the same is 14 photo's what is the average sentence per photo these days 3 to 5 years PER?

SOUNDS like the jury and the DA is liable for a h ell of a prison sentnece for the posession and DISTRIBTUION of child porn!

Posted by: rodsmith | Sep 23, 2012 1:29:02 AM

last time i looked the child porn laws DON'T say it's ok if it's in a trial. What they do say is IF you got it...No matter HOW you got it. YOUR guilty of POSESSION OF CHILD PORN!

yes i know it's stupid since if the defense doesn't stipulate it is in fact such...what do you do.

But i'm not one of the govt fucktard stooges who have no clue what they are doing.

Posted by: rodsmith | Sep 23, 2012 1:33:34 AM

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