Third Circuit Notes Consensus On Declining Stipulations In Lieu Of Evidence

By stipulating to an element of a charged crime, can a criminal defendant preclude the admission of prejudicial evidence under FRE 403? The Third Circuit had "yet to explicitly address whether the distinction between an offer to stipulate and an actual stipulation is pertinent for purposes of Rule 403," and recently joined other circuits in assessing this issue, in United States v. Finley, _ F.3d _ (3d Cir. Aug. 12, 2013) (No. 12–2524)

A defendant's right to stipulate away the admission of prejudicial evidence as an exchange with the prosecution, conceding to them the point for which the prosecution would use the evidence, has been assessed by the Federal Evidence Blog in the past. See No Right To Stipulate Away Prejudicial Evidence (Dec. 5, 2010) ; Reversing Trial Court’s Refusal To Admit Stipulation (March 28, 2011). Last week the Third Circuit considered whether the offer to stipulate to evidence and an element of the offense could foreclose the government from proving its case by way of evidence and not a stipulation.

Trial Court Proceedings

In the case, defendant Finley was tried and convicted for producing, receiving, distributing and possessing child pornography. Before his trial, the defense proposed to the prosecutor an offer to stipulate that the materials seized by the agents were child pornography. In exchange for this offer, the defense wanted the government forgo introducing exhibits of the admitted pornography. If the defendant was willing to concede the point, what possible purpose would be served by having the jury examine the pornographic images themselves, other than to invite unfair prejudice?

The government rejected the idea of stipulating in the case that the materials were pornography -- although that was one element it was necessary to prove in order to convict the defendant. During the investigation, the government had identified "more than 30,000 videos and images belonging to Boys4me2010," an account associated with the defendant. The government moved to admitted thirteen videos segments and two images from the entire collection. The trial court, which "viewed the videos and images prior to admitting them into evidence," concluded that "the government was not required to accept defense counsel’s offer to stipulate to the content of the videos and images." The videos and images were introduced at trial. Following his conviction, the defendant challenged the introduction of the evidence instead of using the stipulation.

Circuit Analysis

The Third Circuit noted that it had not squarely considered the issued. As the opinion summarized:

The government contends that because [defendant] Finley’s counsel merely offered to stipulate, and did not actually stipulate, the government still had to prove that Finley produced, received, distributed, and possessed material that met the legal definition of child pornography, and thus the videos and images were of great probative value. This contention, however, is without merit. Although we have yet to explicitly address whether the distinction between an offer to stipulate and an actual stipulation is pertinent for purposes of Rule 403, we have implicitly concluded that it is not.
Finley, _ F.3d at _ (citing United States v. Cunningham, 694 F.3d 372, 391 (3d Cir. 2012) (“[C]ourts are in near uniform agreement that the admission of child pornography images or videos is appropriate, even where the defendant has stipulated, or, offered to stipulate, that those images or videos contained child pornography.”) (emphasis in original).

The Third Circuit identified the following cases that had "treated an offer to stipulate the same as an actual stipulation for purposes of analyzing the admissibility of child pornography under Rule 403” :

  • First Circuit: United States v. Morales–Aldahondo, 524 F.3d 115, 120 (1st Cir. 2008) (affirming the admission of 12 photographs and 10 video clips depicting child pornography, despite defendant's offer to stipulate)
  • Second Circuit: United States v. Polouizzi, 564 F.3d 142, 149, 153 (2d Cir. 2009) ("Although Polizzi did not contest that the images he received and possessed constituted child pornography, the stipulation was not an adequate substitute for the evidence offered. The specific nature and content of the images were relevant to the jury's evaluation of Polizzi's claim that he did not understand the wrongfulness of receiving and possessing those images.")
  • Eighth Circuit: United States v. Sewell, 457 F.3d 841, 843–44 (8th Cir. 2006) (images introduced concerned multiple elements of the offense, including whether they were child pornography and whether defendant knew this, so that defense refusal to stipulate to each of the relevant elements of the offenses did not disable prosecution to admit the evidence to show aspects of unstipulated elements))
  • Ninth Circuit: United States v. Ganoe, 538 F.3d 1117, 1123–24 (9th Cir. 2008) (even though defendant offered to stipulate, he refused to stipulate that file titles alone would convey to reasonable user that files contained child pornography, leaving government obliged to prove that he was aware of images' content)
  • Tenth Circuit: United States v. Schene, 543 F.3d 627, 642–43 (10th Cir. 2008) ("[I]n contrast to the evidence at issue in Old Chief v. United States, 519 U.S. 172 (1997), the offer to stipulate ... involved “the gist of the government's current case against [the defendant]—the two pornographic images that he allegedly transported via computer.”)

Notwithstanding these cases, the Third Circuit concluded that "the fact that defense counsel merely offered to stipulate instead of actually stipulating is of no consequence in this case." Finley, _ F.3d at _. Ultimately, the circuit concluded that the videos and images were independently probative to establish a material fact: specifically, that the defendant "knowingly received, distributed, and possessed child pornography." Finley, _ F.3d at _ (emphasis in original). Consequently, the government could not be precluded from using the necessary evidence to prove those material facts, despite defendant’s offer to stipulate to it for purposes of the charged offenses Finley, _ F.3d at _ (citing Estelle v. McGuire, 502 U.S. 62, 69 (1991) (“[T]he prosecution’s burden to prove every element of the crime is not relieved by a defendant’s tactical decision not to contest an essential element of the offense.”); Old Chief v. United States, 519 U.S. 172, 189 (1997) (“A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it.”); Cunningham, 694 F.3d at 391 (“[W]e do not hold that the admission here of video excerpts or other images was per se improper. Indeed courts are in near-uniform agreement that the admission of child pornography images or videos is appropriate, even where the defendant has stipulated, or offered to stipulate, that those images or videos contained child pornography.”))

Summary

The Finley case highlights an interesting tension between the government's ability to prove its case beyond a reasonable doubt and the ability of the defense to foreclose the introduction of prejudicial evidence. The evidence must be unfairly prejudicial before it will be excluded under FRE 403.

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Photo Description: Third Circuit Court of Appeals, James A. Byrne United States Courthouse, Philadelphia, Pennsylvania

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