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Evidence – Undue prejudice

By: WISCONSIN LAW JOURNAL STAFF//September 6, 2011//

Evidence – Undue prejudice

By: WISCONSIN LAW JOURNAL STAFF//September 6, 2011//

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Evidence
Undue prejudice

Although it was unduly prejudicial to admit hundreds of pictures of young girls in a prosecution for sexual activities with minors, the error was harmless.

“While we find the error harmless and affirm McKibbins’s conviction, we note in closing that the government could have made this case much simpler. It was unnecessary to flood the jury with the profile photographs; instead, the prosecutors could have made the point with a sample. This is not, we emphasize, a limitation on the government’s discretion to try its case. We are making a more practical point: when juries are confronted with an avalanche of images in a case otherwise supported by such strong evidence, we are more likely to worry that the line between fair and unfair prejudice has been crossed and that the government is just trying to prove the defendant is a ‘bad guy.’ This is especially true when, as here, the government argues that pornographic images convey an intent to molest a child. We have too often seen cases where the government blurs the line between possession of images and the more serious crimes charged in the indictment. See, e.g., United States v. Chambers, 642 F.3d 588 (7th Cir. 2011). As we have noted, these issues require special attention in cases involving sex crimes generally, and even more so in cases involving crimes against minors, where the nature of the crime makes the propensity inference difficult to resist. See, e.g., United States v. Courtright, 632 F.3d 363, 370 (7th Cir. 2011); United States v. Cunningham, 103 F.3d 553, 556-57 (7th Cir. 1996). Compare FED. R. EVID. 413-14 (permitting propensity evidence for certain sex crimes). In addition, we observe that a limiting instruction would have been useful here to clarify precisely what the photographs were being used for. That kind of guidance would have steered the jury away from the propensity inference it might otherwise have used.”

Affirmed.

09-2823 U.S. v. McKibbins

Appeal from the United States District Court for the Northern District of Illinois, Gettleman, J., Wood, J.

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