The Volokh Conspiracy - Reading Material as Evidence, and the First Amendment:

A fascinating opinion from a Ninth Circuit en banc panel. How Appealing summarizes the matter well; to put it briefly:

(1) The Supreme Court has held that speech may be used as evidence of someone's intent, motive, or even actions. For instance, someone's having said "I think Muslims deserve to be killed" may be evidence that his killing of a particular Muslim was deliberate (intent). It may be evidence that the killing was motivated by the target's religion and thus eligible for a hate crime enhancement (motive). And it may be evidence that the speaker was the one who did the killing (motive, which, coupled with other circumstantial evidence, can tend to show action).

(2) The First Amendment question is when this extends to evidence of what someone has read, and in particular to evidence of fiction that one has read -- here, whether defendant's likely having read explicit stories involving sex with children can be introduced to show that he really intended to seduce a 14-year-old girl, rather than just play-acting with someone he thought was an adult. Judge Trott concludes there's no First Amendment distinction there; Judge Klenfeld, joined by Judges Pregerson, Kozinski, Thomas, and Berzon concludes that there is a First Amendment distinction.

(3) There is also some disagreement, related to the constitutional question but analytically distinct from it, whether this evidence was admissible under the Federal Rules of Evidence governing relevance (Rule 401), unfair prejudice (Rule 403), and prior acts evidence (Rule 404). (If the evidence is inadmissible just because of the federal rules, then it might be admissible in state criminal prosecutions, if state courts interpret the analogous state rules differently; if it's inadmissible because of the First Amendment, then this prohibition would apply to all jurisdictions.)

In any case, a fascinating question, and one that has some relevance to debates about the possible speech-deterring effects of hate crimes laws. (See, e.g., United States v. Magleby, 241 F.3d 1306, 1318-19 (10th Cir. 2001), cited in the majority opinion, which allowed evidence that defendant had listened to racist music as evidence that defendant's cross-burning -- a punishable threat -- was racially motivated.)

(link)

Mr. Bingley (www):

I simply can not abide these 'hate crime' laws and am amazed that they have not been struck down. A murder is a murder; these laws criminalize speech, plain and simple.

5.24.2007 4:05pm

Mike Keenan:

I wonder what they would think about playing violent video games. I refer not to games with space aliens but more realistic games where you shoot (and otherwise abuse) people. There are games where you can travel around randomly shooting -- unscripted. What if you chose people of a particular race to shoot. I suppose in the opinion of Trott the saved games could be used as some kind of evidence?

5.24.2007 4:09pm

Mark Field (mail):

Some of these cases tread uncomfortably close to the disgrace of Algernon Sydney's trial.

5.24.2007 4:19pm

David M. Nieporent (www):

I don't see how there's a first amendment issue here. I do agree that there are important Rule 401/403/404 issues, and I haven't studied the details of this case to determine whether the material should be admissible. But I don't see how the first amendment is relevant.

Of course someone can't be prosecuted for a crime merely for possessing reading material, but that goes without saying even in the absence of the first amendment.

5.24.2007 4:49pm

Bob from Ohio (mail):

Amazing that people still fall for these sting operations. It should be common knowledge that all 14 year old girls in these "chat" rooms are adult male cops or FBI.

It bothers me quite much that possession of either non-fiction or fiction (no matter how offensive) can be used to convict someone of a crime. Reading something or even owning it does not mean that one believes in it or it reflects one's deepest wishes. I do think that the "literature" here in fact did reflect the deepest wishes of the defendant but sometimes bad people need to get off to perserve rights for other Americans.

5.24.2007 4:59pm

Anderson (mail) (www):

I am a little appalled to think a jury might be allowed to consider my having read Lolita were I accused of child molestation.

Just imagine what a prosecutor's summary would do to that book, and how badly "but it's literature!" would play with a Mississippi jury.

I can't see allowing evidence of such reading -- if you're charged with bombmaking and you've got a heavily underlined copy of The Anarchist's Cookbook, that might be different.

5.24.2007 5:15pm

Alex 2005 (mail):

This case raises silly doctrine issues. I wouldn't waste my time on it...but I guess lucky you Eugene, you have tenure.

5.24.2007 5:22pm

Steve:

My first reaction is that it raises a very serious FRE 403 issue. But if we accept, for the sake of argument, that evidene of reading habits could be sufficiently relevant, it's hard to imagine that the First Amendment presents some absolute bar to introducing evidence of what the defendant has read.

Let's say, for example, that the defendant is accused of committing a gruesome murder, and the police have evidence that he recently read a work of fiction that contained an account of a precisely identical murder. Does the First Amendment really bar the jury from learning this fact?

As for the Lolita hypothetical, I think that's either a 401 or a 403 problem. But do we really need the First Amendment as a backup in case the judge screws up the evidentiary question? I don't think so.

5.24.2007 5:27pm

Justin (mail):

I'm not sure I agree with any of the opinions here. I think key to all of this is that the Defendant has already admitted that he had fantasies about pedophilia. That's going to already weigh pretty heavily against him at trial, but introducing more evidence of those fantasies by examining his reading material isn't going to prove anything that he hasn't already admitted to. Because of the cumulative nature of the books, their only point would be to inflame the jury, and the books should have been stricken.

The court in this case cites the Second Circuit Brand decision, but the relevant facts in that case were different. Brand was, at its heart, an entrapment case. Brand's defense was essentially that he was a troubled adult, who tried to break off the "cyber-relationship," but was compelled by "Julie" to continue the relationship until an agreement to meet in New York City materialized.
The secondary question was whether the child porn could *show* propensity. Here, rather, the question was not whether he had the mindset to commit statutory rape absent the undercover cop, but whether he actually intended to commit statutory rape. The Ebooks don't go directly to that issue.

I agree with the court's 404(b) decision, but disagree with their 403 decision. The books should have been excluded. Without seeing the record, I'd also be inclined to affirm the decision based on harmless error, but I assume that since there was no discussion of harmless error en banc, that facts relevant to that discussion are missing.

5.24.2007 5:30pm

I also agree with steve. While Kleinfeld makes excellent points in the context of 401/403, his strong reference to the First Amendment is somewhat bizarre.

5.24.2007 5:31pm

CheckEnclosed (mail):

How does this type of case bear on government review of library records under the Patriot Act? Seems like it cuts both ways, heightening the risk that the Feds might use one's reading history against one, but also laying foundation to show that such investigations can lead to relevant &admissible evidence.

Meanwhile, what about the underlying statutory offense -- crossing a state line for the purpose of having sex with a child? Here the defendant either smelled a set-up or got cold feet at the last minute. Should that be criminal? This plays heavily into the asserted defense, namely that the accused thought the other person was faking, and not really a little girl. If he really had approached 14 year old girl, then the intent picture would be a lot clearer, but the government's object of prosecuting someone who may have decided not to go through with it makes the whole thing more complicated. Should it be a crime to almost commit a crime -- can there be a conspiracy of one?

5.24.2007 6:02pm

neurodoc:

Here in Montgomery County, Maryland we have had two criminal prosecutions in which publications by Paladin Press figured. Among the materials offered for sale by Paladin, which "publishes books, videos and DVDs on firearms and shooting, martial arts and self-defense, knives and knife fighting, military and police...," are one with tips on how to hire a hit man and one with instructions on how to make silencers.

The how-to-hire-a-hit-man guide was introduced as evidence in the prosecution of an extraordinary triple murder of a very impaired child, his mother and his nurse by someone acting in concert with the father, who wanted for himself the money the child had received as an award in a med mal case. The prosecution pointed out correspondences between the book and the alleged plot, and both the hirer and the hiree were convicted.

The how-to-make-a-silencer guides was introduced in the prosecution of a woman attorney who tried to hire a hit man to kill her physician husband and some other attorneys she wanted to see dead. The Paladin Press book helped explain the lawnmower muffer and styrofoam peanuts the defendant had in her car.

I don't think the prosecution had any problem getting these books admitted as evidence. After the criminal prosecution, though, the question was whether Paladin had any legal liability for the murders. In the end, Paladin did wind up paying a substantial sum.

5.24.2007 6:07pm

As for the Lolita hypothetical, I think that's either a 401 or a 403 problem.

Agreed, and I should've been clearer about that.

5.24.2007 6:14pm

Dave N (mail):

The "meat" of the decision is here:

This said, our holding here should not be interpreted as a holding (1) that the simple possession of any book or written materials generically similar to a charged crime is automatically admissible against the possessor defendant, or(2) that all pornography or obscenity in the possession of adefendant in these cases is admissible without undergoing the scrutiny required of Rules 401 and 403. In this respect, our holdings are properly limited to the facts of this case. For example, a book such as The Great Train Robbery would not necessarily be relevant and admissible in a run-of-the-mill theft case. On the other hand, if the crime charged happenedto be theft of a money shipment from a train, then possessionof the book might possibly be relevant — depending upon the precise facts and circumstances of the case. All we hold today is (1) that the information in the stories in Curtin’s possession in Las Vegas when he intended to contact Christy was relevant in this case, (2) that the First Amendment provides no bar to its use as evidence under these circumstances, and (3) that the district court properly exercised its discretion in so concluding. In this connection, we note that Curtin is not being prosecuted for possession of literature, but for crossing a state line with the intent to engage in sexual acts with a minor. We are confident in the ability of our trial judges to discern the difference between relevant and irrelevant written or graphic materials and that our holding will not inappropriately impinge upon or chill anyone’s legitimate First Amendment rights to possess books or other written materials.

Judge Kleinfeld's dissent is also very thoughtful and makes some excellent points. His view is synthesized in the last parapgraph of his opinion:

The law of evidence affects what kind of a country we live in. Fantasies and dreams are not intentions, or close to them. The reading material people get from libraries, bookstores, newsstands, and the internet should generally not be used to prove that they intended to do what it portrays, because such evidentiary use “would compel all persons to choose the contents of their libraries with considerable care; for it is the innocent, and not just the guilty, who are sometimes the subject of good-faith prosecutions.” However repulsive a person’s dreams or fantasies may be, they offer little support for an inference of an intention to act on them. According to Blackstone, “the tyrant Dionysius is recorded to have executed a subject, barely for dreaming that he had killed him; which was held for a sufficient proof, that he had thought thereof in his waking hours. But such is not the temper of English law.” Nor should it be the temper of ours.

(footnotes omitted).

In this case, if there were stories that parallel the discussion Curtin had with the undercover officer, those stories might be relevant--but would still require a Rule 403 analysis.

Kleinfeld also had a very good point that there was no evidence Curtin had read the stories at issue and the actual volume of stories on Curtin's PDA suggested he had not.

Two other very quick notes, after decribing the Instant Messages as purportedly being between an adult and a child, the Court footnoted (note 4), "We use the word 'adult' advisedly."

Finally, Judge Wallace is listed as a member of the en banc Court, which I thought odd, since Judge Wallace has taken senior status I believed that only active members of the Ninth Circuit sit on them. Am I wrong?

5.24.2007 6:18pm

Finally, Judge Wallace is listed as a member of the en banc Court, which I thought odd, since Judge Wallace has taken senior status I believed that only active members of the Ninth Circuit sit on them. Am I wrong?

I believe senior Judges on the original panel can elect to hear a case if it goes en banc, though they cannot vote on the en banc decision even in that situation.

5.24.2007 6:23pm

Justin,

Thanks, that makes some sense—but I am still confused based upon your explanation. Could Judge Wallace vote on the merits as a member of the en banc court? I understand he could not vote on the decision to take the case en banc.

It doesn't matter in this case, since the vote split appears to be 9-5-1. But I am curious.

5.24.2007 6:33pm

In the Hat:

Senior judges on the 3-judge panel can be drawn for the en banc panel and participate in it, including voting on the outcome, etc., but they cannot participate in the decision on whether or not to go en banc.

See sources cited below.

Ninth Circuit General Order 5.1(a)(3):
"Judge eligible to vote" - means any active judge who is not recused or disqualified and who entered upon active service before the date of a request for an en banc vote pursuant to GO 5.4.c.1. Notice of recusal or disqualification shall be given to the full court. No senior judge is eligible to vote on whether to take a case en banc.

Ninth Circuit General Order 5.1.(a)(4):
4. A Judge eligible to serve on the en banc court @ - means any active or senior judge who is not recused or disqualified and who entered upon active service prior to the date the court is drawn. Senior judges shall not serve on an en banc court except: (i) a senior judge who was a member of the three-judge panel that decided the case being reheard en banc may elect to be eligible to be selected as a member of the en banc court. Any senior judge who elects to be eligible shall notify the Clerk's Office prior to the date the panel is drawn; (ii) a senior judge who takes senior status while serving as a member of an en banc court may continue to serve until all matters pending before that en banc court, including remands from the Supreme Court, are finally disposed of.

5.24.2007 6:42pm

In the Hat,

Thanks for the information--that makes a great deal of sense and clarifies the issue for me completely.

5.24.2007 7:00pm

ATRGeek:

It seems to me that Professor Volokh's summary is incorrect. As far as I can tell, Kleinfeld did not argue that there was a relevant First Amendment distinction between what you read and what you say (Part Two of the summary). Rather, his argument was entirely about whether this evidence satisfied the Rules of Evidence (Part Three of the summary). Again, as far as I can tell he raises the First Amendment just to point out that one could not be punished just for reading the material, but the First Amendment similarly protects much speech that can nonetheless be used as evidence for another crime.

5.24.2007 7:28pm

Eugene Volokh (www):

ATRGeek: It seems to me that Kleinfeld's discussion of the First Amendment cases on p. 53 of the PDF -- cases that are about the First Amendment, and say nothing about Rules 401/403/404 or general principles of relevance -- suggests that he thinks there is a First Amendment right not to have evidence of the defendant's reading materials introduced, at least in certain cases.

5.25.2007 12:43am

ReaderY:

In State v. Leslie Jean, the Supreme Court of North Carolina upheld the State's could introduction of evidence that the defendant viewed pornographic movies in its case-in-chief in a rape prosecution (for rape of an adult), holding that such evidence tended to show an intent to rape.

5.25.2007 2:37am

ReaderY, while there is a possible 14th Amendment issue there, states are free to reject the statutory protections to criminals that FRE 403 tends to provide, which goes further than what the 14th Amendment requires. I think the NC court got it wrong (badly), but getting SCOTUS to grant cert would be a tall proposition.

5.25.2007 9:55am

chuckc (mail):

Bob from Ohio states:
"Amazing that people still fall for these sting operations. It should be common knowledge that all 14 year old girls in these "chat" rooms are adult male cops or FBI."

Actually, according to the indictment, "Curtin asked if 'Christy' was 'working or cooperating with any police or law enforcement agency' ... [and] that he 'just wanted to know if you're working with the police ... to get guys who might want to make out with 14 year old girls' "

5.28.2007 12:55am

Professor Volokh,

This is not exactly a timely response, but it seems to me this is the upshot of Kleinfeld's First Amendment analysis:

"Based on Stanley and Jacobson, Curtin had a First Amendment right to possess and read the disgusting stories he downloaded from the internet and to fantasize about the criminal sexual conduct they describe. He emphatically did not have a right to attempt to persuade a person under 18 to have sex with him or to travel from California to Nevada 'for the purpose' of having sex with a person under 18. 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."

I don't see how this is different than the analysis a court would have to apply to a speaking case rather than a reading case. So, for example, Curtin would have had a First Amendment right to publish (non-obscene) stories describing criminal sexual conduct. Accordingly, the trial court would have to make sure to apply the evidentiary rules in a way that kept Curtin from being de facto convicted for such protected speech acts.

Again, as far as I can tell, Kleinfeld just discusses the relevant First Amendment cases to emphasize that Curtin had a First Amendment right to possess and read this material. The analysis that follows after that First Amendment discussion doesn't seem to depend at all on this being a reading case rather than a speaking case.

5.29.2007 8:29am

To clarify, the subsequent analysis arguably does distinguish reading from speech on evidentiary grounds. I just don't think it distinguishes them on First Amendment grounds.

5.29.2007 8:32am