Eighth Circuit Upholds Admission of Child Porn Videos Despite Stipulation Offer – U.S. v. Worthey
Child pornography crimes arouse strong feelings in jurors, which is not to the advantage of defendants. Prosecutors know that, and because their job is to get a conviction, they take advantage of it during trial. In U.S. v. Worthey, a defendant convicted of child pornography possession and receipt offered to stipulate that the material he was caught possessing was child pornography, in order to prevent prosecutors from actually showing the material to the jury. The prosecutors admitted the evidence anyway, over the objections of Dustin Worthey. Worthey appealed that decision and several others to the Eighth U.S. Circuit Court of Appeals after his conviction, but the Eighth Circuit ruled against him, finding no prejudice resulted from showing child pornography videos to the jury.
The Arkansas State Police found Worthey after investigating an IP address suspected of trading child pornography online. After tracing the IP address to Worthey’s home, they obtained a search warrant. Worthey let them in and verbally admitted to downloading child pornography. They found child pornography on Worthey’s laptop, in folders connected to a file-sharing software service. He was charged with both possession of child pornography and receipt. Prior to trial, Worthey moved for a change of venue for convenience reasons; this was denied. He also objected to the government’s plans to play a few seconds from each of four videos found in his possession, and offered to stipulate that they were child pornography instead. The district court ruled against him without viewing the clips. After a trial, two unsuccessful motions for a judgment of acquittal, and the revelation that Worthey had sexually abused his stepchildren, he was sentenced to 180 months in prison.
The Eighth Circuit first addressed the change of venue issue. Worthey argued that the district court failed to sufficiently weigh the two-hour commute required by the Little Rock venue. But the Eighth found that the court adequately weighed this against security factors, and in any case, there was no prejudice resulting from the decision. It next ruled that the evidence was sufficient to convict Worthey. The strong circumstantial evidence—the fact that it was Worthey’s laptop where the porn was found—and Worthey’s verbal confession were sufficient to establish that he was the person who downloaded and saved it, and he knew what it was. Finally, Worthey argued that the district court should have excluded the videos from evidence in favor of his stipulation. A 2006 Eighth Circuit panel decided otherwise, the court said, so this argument is foreclosed. Furthermore, it said, the prior case established that videos are not unfairly prejudicial. The Eighth therefore did not analyze whether the stipulation was an adequate substitute before upholding the evidence’s admission.
Interestingly, the Eighth Circuit noted in passing that it might find the district judge’s choice not to even watch the videos “suspect.” It also referred in passing to a case in which a sister circuit ruled the other way on the same issue. The defendant in U.S. v. Cunningham got a new trial because the Third Circuit found that admission of videos was prejudicial. In that case as well as this one, the trial judge did not bother to review the videos before admitting them. In my opinion as a cyber crime attorney, it’s clear that showing child pornography to the jury is inflammatory. The Eighth didn’t dispute this, though it found that it wasn’t unfairly inflammatory. But since the goal is to show that they are illegal, and the defendant is willing to stipulate that, why take the risk—or put the jury through it?
If you’re accused of child pornography crimes, you need an experienced criminal defense attorney right away. Led by former cyber crime prosecutor David Seltzer, Seltzer Law, P.A., represents people across the United States who are facing criminal charges related to technology and the Internet. For a free consultation, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.
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