The opinion of the court was delivered by: Stiehl, District Judge
Before the Court are several pre-trial motions from both the government and the defendant.
The defendant is charged by the grand jury in a Second Superseding Indictment with child pornography related offenses. Specifically, Count 1 charges that between January 21 and 22, 2009, the defendant distributed and attempted to distribute child pornography, specifically, images using a minor engaged in sexually explicit conduct, all in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). Count 2 charges that on or about April 21, 2009, the defendant possessed a computer which contained a visual depiction that involved the use of a minor engaged in sexually explicit conduct, all in violation of 18 U.S.C. § 2252(a)(4)(B). Count 3 charges the defendant with receipt of child pornography on or about April 11, 2008, all in violation of 18 U.S.C. § 2252(a)(2). Counts 4 and 5 charge the defendant with possession of child pornography, both offenses allegedly occurring on or about April 21, 2009.
Upon review of the record, the Court rules as follows on the motions:
1. Defendant's Motion in Limine to Exclude More than Brief Excerpts of Child Pornography (Doc.16) to which the government has filed a response (Doc. 24). In this motion, the defendant seeks to have the Court limit the number of child pornography images which may be shown to the jury at trial, asserting that if all of the images seized were shown to the jury it would take "hours" and that the images are "profoundly disturbing and distressing."
Specifically, the defendant seeks to limit the government to presenting only 15 still images or videos, and if videos images are introduced in evidence, that the duration of the images shown to the jury should be not more than a few seconds. The government seized several computers as part of the execution of the search warrant at the defendant's home. The government has represented that one computer, the Hewlett Packard Pavilion desktop computer contained at least 20 videos with child pornography and 5 still images with child pornography. A Gateway Laptop computer contained 68 images of child pornography. In addition there were at least 14 images of child pornography on a loose hard drive. In total, the government seized 22 videos with child pornography and 85 still images.
The defendant asserts that the publication of multiple images would unfairly prejudice the jury in violation of Fed. R. Evid. 403, whichprovides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
In its response, the government asserts that it intends to offer voir dire questions which will help limit any prejudicial impact on the jury of the evidence in question. Moreover, although the evidence of the images and videos may be prejudicial, the issue is whether they are unfairly prejudicial. Limitations due to unfair prejudice are only necessary when the evidence could "lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." United States v. Old Chief, 519 U.S. 172, 180 (1997).
Part of the charge in this case is that the defendant knowingly distributed, possessed and received child pornography, which requires the government to prove the knowledge element. The images which were received by the defendant, which were on the defendant's computer and which were distributed, are part of the jury's determination as to whether the defendant knew that the images involved contained child pornography. Therefore, the Court FINDS that it is relevant what the images are which underlie the charged crimes, and the best evidence of whether these are child pornography is the images themselves.
The Court FURTHER FINDS, that it is appropriate to allow the government to introduce the actual images themselves to the jury as part of its case in chief, and that the probative value of this evidence outweighs any prejudicial affect. Rule 403. The Court will, however, limit the number of images and the videos to a representative number. The Court further finds that a total limitation of 15 is too restrictive. The Court will not allow the government to overwhelm the jury with these images, but will permit the government to present a reasonable representative number of the images and videos seized. Therefore, the Court DIRECTS the parties to meet before the scheduled Final Pre-Trial Conference and agree to a representative number of images which will be introduced at trial. If they cannot so agree, they shall submit to the Court their respective positions as to the appropriate number of images and videos on or before Wednesday, January 12, 2011.
Accordingly, the Court DENIES defendant's motion to limit the number of video and still images to 15, but will limit the evidence to a representative number.
The Court notes, however, that if the defendant opens the door by attempting to assert that another person was responsible for downloading the images, or that the images were not saved by him, but rather "popped up" then the Court may allow the government to introduce additional evidence to refute these defenses.
2. The defendant has filed (under seal) a Motion Seeking to Exclude References to Questions or Evidence Regarding Defendant's Alleged (Activity Redacted) (Doc. 18) to which the government has filed a response (Doc. 25). The government has indicated that it does not intend to introduce this evidence in its case in chief, and will ...