Third Circuit Holds that Trial Judge Should Have Reviewed Video Evidence in Child Pornography Case Before Allowing Submission of the Tapes to the Jury

In U.S. v. David L. Cunningham, No. 10-4021 (3d Cir. Sept. 18, 2012), Defendant Cunningham was charged with receiving, possessing, and distributing child pornography. After a jury trial, Cunningham was sentenced to 210 months in prison and 20 years of supervised release for the receipt and distribution of child pornography. Before the jury trial, Cunningham attempted to prevent certain, graphic video evidence from being shown to the jury on multiple occasions, but the district court denied each of his requests. 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 argued that those “images not only reveal children engaging in sexually explicit conduct; they are obscene, violent, and humiliating, necessarily conjuring feelings of disgust and blind rage.” Cunningham at 9. Cunningham objected to the government’s video excerpts and proposed that, if the Court was going to allow the government to introduce those exhibits, they should be limited 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 video; and (4) the faces of any minors should be obscured from all images. The District Court ruled against him.

Cunningham appealed his sentence, arguing that the District Court permitted the government to show graphic video evidence without first viewing the videos, and failed to exclude or limit the video clips. The Third Circuit agreed with Cunningham and found that the District Court abused its discretion when it did not view the graphic videos before admitting them as evidence and when it failed to exclude or limit video clips. The Court noted that, “The probative value of each clip was reduced by the existence of the clips before it. Once one video excerpt from each of the two videos was shown, the fact being proven — i.e., that the person distributing, receiving, and possessing that pornography would know that it contained images of real minors engaging in sexually explicit activity — may well have been established. As a result, 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.” Id. at 45-46.

The Third Circuit vacated the District Court’s ruling and remanded the case for a new trial.

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