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Judge Should View Evidence Before Deciding FRE 403 Admissibility

By Robyn Hagan Cain on September 20, 2012 | Last updated on March 21, 2019

David Cunningham sounds like the kind of person you would want to see locked up in jail for at least 17 years.

In 2007, state and federal law enforcement agents nabbed Cunningham in a child-porn file-sharing investigation. He was arrested and charged for receiving, possessing, and distributing the illegal videos. Cunningham pleaded not guilty -- claiming the porn wasn't his -- but the court convicted and sentenced him to 210 months in jail on the receiving charge.

This week, the Third Circuit Court of Appeals ruled that Cunningham is entitled to a new trial because the trial court abused its discretion by allowing prosecutors to show jurors videos recovered from Cunningham's computer.

The appellate agreed that the "highly inflammatory nature" of the videos "clearly and substantially outweighed their probative value" under Federal Rule of Evidence (FRE) 403.

Prior to trial, Cunningham filed a motion in limine requesting an order precluding the government from showing the jury the videos. Cunningham argued that, because he was stipulating that the government exhibits constituted child pornography, the probative value of any videos was substantially decreased.

The district court denied Cunningham's motion, allowing the government to publish "representative samples of the ... 'collections,' as well as the file names of the various files in the 'collection.'"

Cunningham, again, moved to limit the evidence, offering to stipulate to the contents.

The government responded that it bore "an extremely high burden to establish" that Cunningham "knowingly distributed, received and possessed the images, that he was aware of their character ... [and] that the images depicted real minors engaging in sexually explicit conduct." Prosecutors specifically wanted to include "excerpts that portray bondage and actual violence" because "[t]he average person ... is not aware ... [that] the content at issue ... may contain depictions of sado-masochistic sexual abuse."

If that made you sick, join the club. That information, and Cunningham's motion describing that contents of the videos, literally made us ill. So think about the jurors who had to watch these montages in open court.

And that's what this appeal comes down to.

Here, the trial judge ruled that the probative value of the evidence was not substantially outweighed by its prejudicial effect, but he never examined the evidence.

The Third Circuit Court of Appeals concluded that the district court abused its discretion because, generally, a district court should personally examine challenged evidence before deciding to admit it under FRE 403. A court should know what challenged evidence actually is -- as opposed to what one side says it is -- "in order for [the court's] weighing discretion to be ... entitled to deference on appeal."

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