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How Much Child Porn Is Too Much for a Jury?

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By Brett Snider, Esq. on August 14, 2013 3:54 PM

When it comes to child pornography, most would agree that viewing any child porn is sufficient for an entire lifetime. But in a case decided Monday, the Third Circuit determined that a jury didn't see too much child porn to be unfairly prejudiced.

Where does the Third Circuit draw the line between prejudice and probative value when it comes to child pornography?

Conviction for Child Porn

Pennsylvania resident Craig Alan Finley was convicted in federal court on child pornography charges including the distribution of "material depicting the sexual exploitation of a minor." Because of his collection of more than 30,000 child porn images and videos, he was sentenced to 50 years in prison with a lifetime of supervised release.

During Finley's trial, the prosecution showed the jury 11 videos and two images from Finley's collection. Each contained graphic images of children, with some showing young boys "being anally raped and crying." The court allowed all 11 videos to be shown to the jury.

Court's Rule 403 Discretion

As a reminder, under the Federal Rules of Evidence (FRE 403), courts can exclude evidence that is unfairly prejudicial or cumulative as long as its prejudice substantially outweighs the evidence's probative value.

The Third Circuit in Finley notes that as long as the court gives a reason for allowing evidence, which evinces some balancing of prejudice and probative value, in the face of a FRE 403 objection, they will typically affirm the lower court's ruling.

Although the trial court wasn't as effusive as the Third Circuit would prefer, it did proffer some explanation of its FRE 403 analysis. So the Finley court affirmed the lower court's decisions to allow the videos into evidence.

Probative Value of Videos in General

The key to these FRE 403 rulings was that the prosecution is entitled to prove up the elements of the charged crimes. In this case, the allegation that Finley "knowingly" distributed child porn could be proven by displaying the videos which were then identified as child porn.

The Third Circuit noted that the defense offering to stipulate that the videos were child porn was not dispositive; the prosecution was still allowed to present its evidence in a way that showed a narrative to the jury, even if that narrative involved graphic images.

Similarly, there is not a per se limit to how many videos can be presented if a judge, after reviewing the tapes first, decides that there is still probative value to showing the child porn videos to the jury.

Bottom Line: As long as a judge determines a jury won't be unfairly prejudiced, there is no upper limit to how much child porn can be shown.

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