Eighth Circuit Notes A "Somewhat Unusual" Order Of Proof In Reviewing Relevance Issue In Child Pornography Conviction

In possession of child pornography prosecution, even if it was not relevant that the defendant had sexually abused his wife and that she displayed symptoms of a battered woman, the admission of this evidence did not prejudice the defendant, as ultimately it rebutted defendant's anticipated defense that it was his wife who downloaded the charged pornography, and in any event, the admission was not plain error because its admission did not affect the defendant's substantial rights, in United States v. Foster, __ F.3d __ (8th Cir. Oct. 20, 2010) (No. 10-1122)

The determination that certain evidence is relevant under FRE 401 does not occur in a vacuum. Rather, the context for relevance turns on the requirements of the law applied in the case and the specific evidence the parties proffer to support their theories. Occasionally, evidence that at first seems to lack relevance to the charged crime can take on an important evidentiary role based on the theories the parties pursue in the case. A recent example of this was demonstrated in an Eighth Circuit child pornography case in which the court admitted prosecution evidence of the defendant's wife abuse behavior.

In the case, defendant Foster was convicted of possessing child pornography and he appealed the denial of his motion for a new trial based on ineffective assistance of counsel. In particular, he alleged that during the trial, the court admitted, with little interference from counsel, testimony from the defendant's wife that he had "once picked her up and threw her out of the house and that he videotaped sexually abusive encounters with her; she also said that he kicked her and choked her and sometimes had sex with her when she was asleep." Foster, __ F.3d at __.

On appeal, the Eighth Circuit observed that this evidence "initially seems irrelevant to the charge that Mr. Foster possessed child pornography and [it seems] unfairly prejudicial to him, designed to show that he was a person of bad character." Foster, __ F.3d at __. However, the circuit took a deeper look at the record in the case and noted a there was no error in admitting the bookstore proof:

We note that the order of proof in this case was somewhat unusual and that it is not common for the government to anticipate in its case-in-chief a defendant's theory of defense and to foresee so fully the prospective impeachment of its witnesses. But Mr. Foster's counsel revealed in his opening statement what his defense was going to be and he also said that Mr. Foster would challenge Ms. Foster's credibility because of her prior testimony in pretrial proceedings. The government, moreover, had had a preview of Mr. Foster's theory of the case in a previous proceeding that had ended in a mistrial. Since it developed that defense counsel's case was exactly what he had predicted it would be in his opening statement, most of the evidence that Mr. Foster complains about proved ultimately relevant.
Foster, __ F.3d at __.

Ultimately the circuit did not determine whether the evidence was relevant or not. The circuit seems to imply that it was not relevant when the trial court admitted it, but in the course of the trial it became relevant because of the theories propounded by the defendant. The circuit did not need to resolve the issue because, whether or not relevant, the evidence's admission was harmless:

After a very careful reading of the record, we are quite clear that the evidence that Mr. Foster asserts was erroneously admitted did not affect his substantial rights because the other, admittedly admissible evidence against him was so overwhelming. For instance, a police officer who had investigated a complaint of the domestic disturbance at the Fosters' residence testified that Ms. Foster told him on the scene that Mr. Foster possessed images of child pornography, and he said that Mr. Foster then admitted that he had downloaded pornographic pictures of children. Another police officer testified that Mr. Foster stated on the same occasion that he had 'illegal' images on his computer, and the officer stated as well that when Ms. Foster was searching a closet to find CDs incriminating Mr. Foster, the defendant leaned over to her and whispered, 'Baby, don't do it. You don't have to do it. Please don't do it,' and other things of like nature.
* * *

After his arrest ... he also made admissions of guilt to an agent of the United States Immigration and Customs Enforcement Service. The government, moreover, played an audiotape for the jury of a phone conversation with Mr. Foster in which he acknowledged having possessed child pornography. There was yet more testimony inculpating him, including Ms. Foster's account of how she had seen Mr. Foster viewing pornographic pictures of children and had seen the names of sexually-oriented websites featuring underage participants on his computer. Finally, a computer expert testified that he had discovered thousands upon thousands of pornographic pictures and movies on CDs and on computers to which Mr. Foster had access, one of which carried 'Keith Foster' as its account name.
Foster, __ F.3d at __.


"This was not the entire case against Mr. Foster," noted the circuit. "[B]ut this recitation suffices to show-although he denied everything ... the case against Mr. Foster was so overwhelming that we can't think that there is the remotest chance that he would not have been convicted had the evidence that he complains about not been admitted. He is therefore not entitled to plain error relief." Foster, __ F.3d at __.

Federal Rules of Evidence
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