If child pornography is going to be admitted, the judge must read it first.
In U. S. v Curtin, acting en banc, the Ninth Circuit reversed a conviction for traveling across state lines for the purpose of enticing a minor. The issue in the case was whether 5 e-stories consisting of graphic text descriptions of adult/child sexual activity contained on the Curtin’s PDA were properly admitted into evidence. Curtin was arrested following a sting in which he arranged to meet with his IM chat partner, who had purported to be a 14 year old girl.
The Court determined the stories were relevant to rebut Curtin’s defense that he believed himself to be conversing with an adult woman who wanted to participated in his father/daughter incest fantasy. The stories revolved around tales of minor daughters having sexual relations with their fathers, not adult woman engaging in such activity. Of particular relevance was the parallel between the activities in the stories, and Curtin’s messages to his intended victim regarding the activities he hoped to engage in with “her.”
However, reversal was required because of the inadequate determination by the district court as to whether the reading material was more prejudicial than probative. Rather than reading through the stories themselves, the district court relied upon an offer of proof. The district court candidly admitted to having been able to get no further than part way through the second story.
Five judges concurred in the reversal, but disagreed that reading material is relevant to show intent. The concurring opinion asked whether possessing a copy of DVDs of The Thomas Crown Affair would be relevant to show intent to rob a bank (obviously, the concurrence refers to the 1968 version of the film) or Dirty Harry to show intent to deprive a person of their constitutional rights. Judge Kleinfeld states “The trial court should have managed the admission of evidence so as to allow the government to prove Curtin’s intent and purpose, but protect him from being convicted for his execrable taste in reading material and repulsive fantasies.”
Rulings like this can make one glad not to be a judge. Essentially, on remand, Judge Jones will be required to read all of the pornographic stories involving children having sex with adults the prosecution hopes to admit.
I believe in the 1st amendment, and therefore, would not support any attempt to outlaw such stories, because no real child is injured or exploited in the creation of the story. No thought police, please. Nor do I think that a choice in reading material is generally very probative to prove intent – I own too many murder mysteries to favor that view.
Nevertheless, this is a case where the particular defense probably opened the door to the admission of the evidence.
And I sincerely pity any person, judge or otherwise, who is forced to read the content described here. Even knowing that the presumed 14 year old was actually a male detective in his ‘40’s, I found reading the opinion, with its quotes of Curtin’s IMs with the person he believed to be a 14 year old, difficult to stomach –
