Excluding Evidence Under Rule 403--Is a Video Worth a Thousand Words?

September 30, 2012

683635_remote_control_1.jpgIs a video ever worth a thousand words? More to the point for this post, can a court commit error by failing to view videos offered by the prosecution before allowing the jury to see them? In a decision issued on September 18, the Third Circuit says yes.

In United States v. Cunningham, a case that originated from the Western District of Pennsylvania, the Third Circuit vacated the defendant's conviction and granted him a new trial because the trial court had allowed the jury to see videos after accepting the prosecution's description of the videos rather than actually viewing them. This, the appeals court panel unanimously ruled, was an abuse of discretion.

What kind of videos are we talking about? Graphic depictions of adults molesting prepubescent children, including, in the court's words, "the kind of highly reprehensible and offensive content that might lead a jury to convict because it thinks that the defendant is a bad person and deserves punishment, regardless of whether the defendant committed the charged crime."

Continue reading after the jump.

The Pennsylvania State Police had acquired the videos off the defendant's computer through a federal search warrant. Prior to trial, the defendant filed a motion in limine under Rule 403 of the Federal Rules of Evidence to prevent the jury from viewing the videos, arguing that the stipulation he reached with the government--that the videos constitute visual depictions of real children under the age of 18 engaging in sexually explicit conduct--significantly decreased their probative value, which was substantially outweighed by the danger of unfair prejudice to him. The trial court denied the motion and ruled that the government could publish representative samples of the videos to the jury as well as the names of the files in the collection.

In a subsequent motion to limit evidence, the defendant described for the court, in graphic detail, the video excerpts that the government intended to show the jury, calling them "obscene, violent, and humiliating, necessarily conjuring feelings of disgust and blind rage." In response, the government agreed only to not use audio in the video excerpts, but "strenuously object[ed] to the [other] limitations urged by [the defendant] as efforts to sanitize, distort and mitigate the force of evidence that constitutes the very evidence of the offenses charged." The government argued further that, even with the stipulation, it was still required to show the defendant's knowledge and intent and that it should not be hindered in its ability to satisfy its burden of proof. Tellingly, in arguing against the omission of excerpts that portrayed bondage and actual violence, the government contended that the jury should be allowed to see such depictions to "fully appreciate the nature of child pornography crimes, which necessitates consideration of the images themselves." Without viewing the video excerpts, the trial court again denied the defense motion.

At the final pretrial conference and in a motion for reconsideration, the defendant asked the court to view the excerpts prior to making a final ruling, but the court declined to do so, noting that the defendant had failed to cite any case law for the proposition that the court must view child pornography in exercising its discretion to decide whether such video evidence was admissible. The case proceeded to trial. The defendant was convicted and sentenced to 210 months' imprisonment followed by 20 years' supervised release.

On appeal, the Third Circuit relied upon decisions from both the Seventh and Ninth Circuits that held that it was an abuse of discretion for a trial court to fail to personally examine challenged evidence before ruling on its admissibility. In the Seventh Circuit case, the court held that the only exception to actually viewing challenged evidence would be in a case where the probative value of the evidence was so minimal that it was obvious to the court that the potential unfair prejudice to the defendant outweighed it--in other words, if the court excludes evidence rather than submits it to the jury, it need not view it.

The Third Circuit agreed: "[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." It also agreed with the Seventh Circuit that a court need not view the evidence where it is obvious that is probative value is substantially outweighed by the danger of unfair prejudice. Noting that the discretion afforded a district court under Rule 403 is not unfettered, the court, quoting from one of its earlier opinions, stated that "[t]he hackneyed expression, 'one picture is worth a thousand words' fails to convey adequately the comparison between the impact of the portrayal of actual events upon the viewer of the videotape and that of the spoken or written word upon the listener or reader."

Perhaps unwittingly, the government aided the defendant's argument for reversal of the conviction by arguing that the jury needed to see the videos to "fully appreciate the nature of child pornography crimes." Ironically for the government, the appeals court used the same logic in holding that the trial court must first view the evidence to, in effect, "fully appreciate" its prejudicial effect on the jury. It appears the one thing everyone in Cunningham agreed on was that a video is indeed worth a thousand words.