Third Circuit Orders New Trial for Defendant Whose Jury Saw Child Pornography Videos – U.S. v. Cunningham

September 27, 2012 by David S. Seltzer

A challenging part of my work as a criminal defense attorney who handles child pornography cases is the visceral reaction many jurors have to child pornography itself. The materials are offensive to many people, and because they feel so strongly, many will judge the defendant based solely on an accusation. Showing the materials is therefore highly likely to evoke a strong reaction from the court and create a strong reaction. That’s exactly what happened in United States v. Cunningham, and the Third U.S. Circuit Court of Appeals decided it was enough to require a new trial for the defendant. David Cunningham of western Pennsylvania was discovered sharing child pornography through the Internet and prosecuted for both receipt and distribution of child pornography. He appealed on the basis that the court should not have shown samples of the materials in question to the jury, and the court agreed.

Law enforcement officers identified files Cunningham was sharing on peer-to-peer networking sites as child porn. They traced the IP address to his home and identified him as the sharer. Though he admitted to police that he had downloaded the files, he pleaded not guilty. At trial, he filed a motion to prevent the prosecutors from showing the actual files to the jury, arguing that their value would be outweighed by the danger of unfair prejudice, particularly since his defense was that someone else had possessed and distributed the videos and he stipulated that they were really child pornography. The district court denied this and permitted a two-minute excerpt from seven videos to be shown. After the defense saw the video, it filed another objection seeking to remove certain images and the audio, but the court, without seeing the excerpts, ordered only the removal of the audio. Cunningham made one more request to the court to view the excerpts before trial, which was again denied. He was convicted and sentenced to 17.5 years in prison, plus 20 years of supervised release during which he may not use the Internet except at work.

On appeal, Cunningham argued that the district court should have viewed the videos before deciding whether to show them to the jury, and also should have excluded or limited them as having little value. He also argued that the court erred by failing to adequately describe them to potential jurors during voir dire. The Third Circuit agreed that the court abused its discretion by failing to review the videos. Because of the “deeply disgusting, inflammatory character” of the materials, the court could not have made a proper decision about their value or prejudice to Cunningham without viewing them. Thus, the Third said, the district court abused its discretion. It further ruled that some of the images in the videos had no probative value. While they did show that Cunningham knew their content, a smaller number of images would have sufficed. And those images, particularly two violent ones, created a “tremendous” risk of unfair prejudice, the appeals court added, making their admission another abuse of discretion. Declining to rule on the voir dire issue, the court vacated the conviction and remanded for a new trial, with orders to watch videos if it wished to admit any as evidence.

As a child pornography defense lawyer in Miami, I am pleased that the Third Circuit ordered a new trial for this defendant. Though the court made it clear that it did not enjoy the descriptions of the videos’ content, it made a distinction between disgust for that content and the rights of the defendant. This is exactly the distinction that federal law is concerned with helping juries to make. In this case, Cunningham was accused of distributing and receiving child porn, and was not attempting to argue that the materials were not child porn. Thus, showing them to the jury was not very valuable as evidence, as the Third detailed—but it was likely to provoke strong negative feelings about Cunningham. While this would certainly have helped the prosecutors get a conviction, the appeals court was right that it was unfair to Cunningham.

If you’re accused of child pornography crimes or any other serious crime involving technology and the Internet, don’t hesitate to call the experienced cyber crime defense attorneys at Seltzer Law, P.A. Based in Miami, we represent clients around the United States facing state and federal Internet crime charges. For a free, confidential case evaluation, send us an email or call 1-888-THE-DEFENSE (1-888-843-3333).

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