Last week, I blogged about the Ninth Circuit’s reading-material-as-evidence case. Defendant was accused of attempting to seduce a 14-year-old girl. His defense was that he expected all along that the girl was actually an adult (which was indeed the case, though he didn’t expect that the adult was an FBI agent) who was pretending to be 14. He thought, he argued, that their exchange was acting out a fantasy, and he was expecting to meet and have sex with an adult woman. The prosecution introduced evidence that the defendant had read explicit stories involving sex with children, in order to show that he really was intending to seduce a 14-year-old.
The defendant raised several arguments: He argued that the evidence was irrelevant, and thus violated Rule 401. He argued that the evidence was an impermissible attempt to infer conduct from past behavior, which violated Rule 404 (and maybe the First Amendment, given that the past behavior involved reading). And he argued that the potential of at least some of the evidence to create unfair prejudice substantially exceeded its probative value, which violated Rule 403. The en banc court rejected his Rule 401 and 404 arguments, but held that the conviction had to be reversed because the trial court had refused to read all the evidence before admitting it, and thus couldn’t perform the proper unfair prejudice / probative value balancing required by Rule 403.
Judge McKeown, joined by Judges Pregerson, Kozinski, Thomas, and Berzon, concurred in the judgment, and wrote:
All fifteen judges on the en banc court agree on one undisputed fact and on the single reason to remand this case: the district judge did not read all of the pornographic stories admitted into evidence to weigh their probative value against the potential for unfair prejudice. Nothing more needs to be said.
Instead of simply stopping at deciding the case, the majority goes on at length about whether to overrule Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir. 1998), which has nothing to do with the failure to review the evidence [but focuses on the Rule 404 question], and speculates about how the Federal Rules of Evidence might play out on
remand. The bulk of the majority