United States v. David Cunningham
694 F.3d 372
| 3rd Cir. | 2012Background
- Cunningham was convicted of receiving, possessing, and distributing child pornography under 18 U.S.C. § 2252(a)(2).
- The district court admitted seven video excerpts as samples without first viewing the clips under Rule 403, despite defense objections.
- The government sought to admit two sets of clips from multiple videos; the parties stipulated the videos depicted real minors engaging in sexually explicit conduct.
- Two excerpts from the second video depicted bondage and violence; the court did not view the excerpts before admitting them.
- Voir dire warned jurors that graphic material would be shown; several potential jurors were excused for cause, and seven excerpts were ultimately shown to the jury.
- The court later vacated Cunningham’s conviction and remanded for a new trial due to abuse of discretion in admitting the video excerpts and related Rule 403 balancing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did district court abuse Rule 403 by admitting videos without viewing them? | Cunningham: court must view challenged evidence to weighing prejudice and probative value. | Cunningham: descriptions alone suffice; viewing unnecessary. | Yes; court abused by not viewing the videos. |
| Were the two bondage/violent excerpts improperly prejudicial under Rule 403? | Excerpts highly prejudicial and not essential to proof. | Excerpts probative of knowledge and possession/receipt. | Yes; two excerpts unduly prejudicial; admission error. |
| Was voir dire adequate to inform jurors about graphic evidence? | More detailed disclosure during voir dire required. | Existing voir dire sufficient given instructions. | Not reversible on this basis; discretion to refine on remand. |
| Did stipulations about the content of videos limit their probative value sufficiently? | Stipulation minimized probative value; videos were excessive nonetheless. | Stipulation does not foreclose use of probative video evidence. | Stipulation does not cure abuse; still outweighed by prejudice for some excerpts. |
Key Cases Cited
- United States v. Curtin, 489 F.3d 935 (9th Cir. 2007) (court must view challenged material to properly weigh Rule 403)
- United States v. Loughry, 660 F.3d 965 (7th Cir. 2011) (district court must know what is in the material to assess probative value vs. prejudice)
- United States v. Ganoe, 538 F.3d 1117 (9th Cir. 2008) (recognizes need to view contested evidence under 403 when assessing prejudice)
- United States v. Dodds, 347 F.3d 893 (11th Cir. 2003) (illustrates probative value of visual evidence; supports viewing evidence)
- United States v. Martin, 746 F.2d 964 (2d Cir. 1984) (advises strong impact of visual evidence in Rule 403 analysis)
- United States v. Harvey, 991 F.2d 981 (2d Cir. 1993) (illustrates prejudice concerns with graphic videos)
- Old Chief v. United States, 519 U.S. 172 (1997) (stated limits on stipulations and probative value vs. prejudice)
- United States v. Green, 617 F.3d 233 (3d Cir. 2010) (abuse of discretion standard for Rule 403; eyesight on evidence matters)