In United States v. Cunningham, No. 10-4021 (3rd Cir. 2012), the Third Circuit held that it is substantive error for a district court to rule on a Federal Rules of Evidence 403 motion concerning the showing of child pornography videos at trial without the court first viewing the videos to determine their probative value.
Pennsylvania police had discovered child pornography being shared on Limewire and tracked it to the defendant's home where a search revealed those same files on the defendant's computer. Before trial, the defendant argued that FRE 403 prevented showing the jury videos of child pornography because he was willing to stipulate that the videos were of child pornography, thus decreasing their probative value. The court agreed to allow the videos without sound, but did not agree to review the videos prior to a decision on the 403 motion or being shown to the jury. The defendant was convicted for receipt and distribution of child pornography.
On appeal, the defendant argued that the court erred by not viewing the videos prior to ruling on their admissibility or presenting them to the jury and by not, over defendant's motion, providing potential jurors with details about the videos during voir dire (jury selection).
The Third Circuit held that unless the potential prejudice is obvious, district courts should review the evidence prior to making a 403 ruling. Because the court did not do that, the judgment was vacated and remanded for a new trial.
Here's the wording of the Third Circuit's rule:
[U]nless the Court determines that, considering the potential of unfair prejudice, the probative value of a proposed video excerpt is so minimal that it need not watch that excerpt, the Court must view the proposed video excerpts to not only assess their probative value and potential for unfair prejudicial impact but also to appropriately evaluate their admissibility in light of Rule 403's concern with redundancy.With regard to the voir dire argument, the court determined that a decision to describe the types of content jurors may see in a child pornography case is within the discretion of the district court.