A useful en banc win on Federal Rule of Evidence (FRE) 403 balancing and review is overshadowed by a disturbing loss on FRE 404(b). United States v. Curtin, __ F.3d __, 2007 WL 1500295 (9th Cir. May 24, 2007), decision available here.
Writing for the en banc majority, Judge Trott (left) holds that stories about sex with children -- recovered from a defendant's PDA -- were admissible FRE 404(b) evidence in a "traveler" case where intent was at issue. Judge Trott parts ways with his Brethren on the Right: Judge Kleinfeld authors a vigorous (and persuasive) "dissent" (on the 404(b) issue), joined by Kozinski (right), among others.
Players: Judge Trott writes; Kleinfeld leads "dissenters" (on FRE 404(b)). [Kleinfeld and others concur on the 403, but effectively dissent on the FRE 404(b) issue].
Facts: Curtin was charged with traveling interstate to have sex with a minor. 2007 WL 1500295, *1. To prove “intent,” at trial the government admitted lewd stories about child sex that were on Curtin’s PDA when arrested. Id. A divided Ninth Circuit panel reversed, holding that “reading material” was not fair game as FRE 404(b) “character evidence.” Id. The Ninth took the panel's decision en banc.
Issue(s): “Curtin contends . . . . that (1) the five stories amounted to inadmissible character evidence, introduced only to show propensity in violation of Rule 404(a) of the [FRE], and (2) that the probative value of the stories was exceeded by their potential prejudice, in violation of Rule 403.” Id. at *6. “Curtin objected also to the admission of the stories in the district court. . . . . [T]his appeal address[es] whether sexually explicit reading material is admissible under Rule 404(b).” Id. at *7.
Held: 1. Re: FRE 404(b): (Reverses panel) “[W]e cannot say that the district court . . . . erred in determining that the stories in Curtin’s possession contained relevant evidence of Curtin’s intent.” Id. at *14. “We come now to the central question of whether there is something about relevant literature per se such that . . .‘possession of lawful reading material is simply not the kind of conduct contemplated by Rule 404(b).’ . . . . [W]e conclude that no such blanket exclusion or privilege exists.” Id. at *17 (citations omitted). “[W]e find nothing in the Constitution or in the First Amendment's guarantees of free press and free speech that would support such an exclusion or privilege.” Id.
2. Re: FRE 403: “Was the trial court in this case required to have read every word of these stories when exercising its balancing discretion pursuant to Rule 403 to determine whether their potential for undue prejudice substantially outweighed their probative value? Our answer here is in the affirmative. The inflammatory nature and reprehensible nature of these abhorrent stories, although generally relevant, is such that a district court making a Rule 403 decision must know precisely what is in the stories in order for its weighing discretion to be properly exercised and entitled to deference on appeal. . . . In this context, reliance on an offer of proof simply is not enough.” Id. at 21. “[W]e hold as a matter of law that a court does not properly exercise its balancing discretion under Rule 403 when it fails to place on the scales and personally examine and evaluate all that it must weigh. Relying only on the descriptions of adversary counsel is insufficient to ensure that a defendant receives the due process and fair trial to which he is entitled under our Constitution, as this case demonstrates.” Id. at *22.
Of Note: Judge Kleinfeld’s "dissent" (on FRE 404(b)) is passionate and persuasive. One of his most damning points is that the stories at issue (extracted from a zip file) were three times as long as War and Peace – and there was no showing that Curtin had actually read the things! With Kleinfeld and Kozinski among the 404(b) dissenters, maybe SCOTUS will add Curtin to the long list of Ninth Circuit reversals?
How to Use: Though a bad 404(b) case, this is a great process (Federal Rule of Evidence 403) decision. At minimum, Curtin holds that a court must personally review all 404(b) evidence before admitting it. Moreover, the Court quotes very favorably (and comes precious-close to holding) that an articulated FRE 403 balancing test is a necessary prerequisite to the admission of 404(b) evidence. See id. at *21 (discussing United States v. Merriweather, 78 F.3d 1070 (6th Cir. 1996)).
For Further Reading: Senior Judge Trott is an old hand at evidence issues. He was the Ass’t A.G. who argued United States v. Abel, the lead Supreme Court decision that supports the broad use of bias evidence (by the government). And of course, this decision, Curtin, endorses the broad use of character evidence (by the government). In United States v. Collins, however, Judge Trott upheld the exclusion of bias evidence (in that case, offered by the defense . . . .). 90 F.3d 1420 (9th Cir. 1996).
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org