After the government provided defense counsel with the video clips that it intended to present at trial, Cunningham filed another motion to limit the evidence, describing the extraordinarily violent videos in graphic detail. Cunningham objected to admission of the excerpts and alternatively proposed that the evidence should be to still images, absent any display of bondage or actual violence, absent any audio, and with faces obscured. In response, the government agreed not to use audio, but objected to the other limitations as an attempt to "sanitize" and mitigate the force of its evidence. The government proposed to present seven, several-second video clips.
The district court denied Cunningham's motion on the papers, without viewing the evidence, concluding that the probative value of the evidence was not substantially outweighed by its prejudicial effect. Cunningham filed another motion to reconsider admissibility, arguing that his defense was that someone else had downloaded, possessed, and distributed the child pornography at issue, and, with the stipulation already made, there was little value in presenting the video excerpts. He also requested that the Court view the videos prior to ruling on his motion. The district court again denied the motion, stating that the descriptions of the video excerpts were sufficient for the court to rule.
Prior to voir dire, Cunningham requested that the district court advise all potential jurors that, if selected, they would "see a movie that shows a prepubescent minor being sexually penetrated by an adult," and "see graphic images of children, their genitals, and videos of illegal sexual acts, including oral sex, sexual intercourse, and graphic, violent, sexual images." Instead, the court advised and asked all of the potential jurors:
Some jurors were excused for cause. Other jurors were further questioned individually at sidebar, where more detailed information on the pornography was revealed, several of those were also excused.
During the trial the government presented two separate videos, containing seven video excerpts, including pre-pubescent children being bound, raped, and violently assaulted. Before and after each of the video excerpts were played, the district court read a cautionary instruction, which directed the jury to view the images in a fair and impartial manner. The jury convicted Cunningham on all counts.
On appeal, Cunningham argued that the district court erred in both failing to view the video excerpts before ruling on their admissibility and in failing to exclude or limit them given his stipulation to their criminal content. He further argued that the Court abused its discretion during voir dire by refusing to provide potential jurors with more detail describing the videos that would be presented during trial.
Procedural Error. The Circuit first found procedural error in the district court’s failure to view the challenged evidence. Relying on similar cases from the Ninth and Seventh Circuits, the Court found that the court "could not have fully assessed the potential prejudice" to Cunningham "and weighed it against the evidence's probative value" without looking at the video excerpts. Having read the written descriptions was not sufficient and should have "heightened the District Court's awareness of the need to see the videos to assess their prejudicial impact before it decided to admit them."
Substantive Error. The Court next held that the district court abused its discretion under Rule 403 by not limiting or excluding the video excerpts. The Court looked at both the elements of the charged crimes and the stipulations between the parties. Although limited by the stipulation, the Court found some probative value in the video clips, "a tendency to show that the offender knew the videos contain child pornography" and the persuasive impact of evidence. This minimal probative value, however, was subject to the law of diminishing returns, and the value of each clip was reduced by the one that preceded it. The aggregate risk of unfair prejudice was "tremendous," as the Circuit could tell just from the descriptions. Two clips in particular, caused the Court to conclude: "Even in the cesspool of evidence presented here, Excerpts 1 and 3 in the second set of video clips stand out. We will not repeat the description of them but note simply that their violent and sadistic character likely created "disgust and antagonism" toward Cunningham which risked "overwhelming prejudice" toward him." Therefore, the Court concluded, the district court abused its discretion in admitting those particular videos. Further, the Court could not conclude their admission was harmless.
Voir Dire. The Court rejected Cunningham’s argument that the district court abused its discretion by failing to publish the video excerpts to potential jurors, citing the district court’s efforts to inform the potential jurors of the graphic evidence to be expected and excusing those who indicated they could not be fair and impartial. The Court left it to the district court’s discretion on remand "to determine if more detailed information about the case would be advisable to ensure a fair and impartial jury."