Commercial Litigation and Arbitration

Website Evidence — Internet Chats May Be Relevant as Probative of State of Mind or to Associate Party with Data Found on His or Her Computer

United States v. De Foggi, 2014 U.S. Dist. LEXIS 93198 (D. Neb. June 9, 2014):

"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401. Nevertheless, a "court may exclude relevant evidence if its probative value is substantially outweighed by a danger  [*17] of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. Evidence of chats between a defendant and another may be admissible to show the defendant's state of mind, his intention to possess child pornography, and his knowledge of the illegal nature of the images. See United States v. Brumfield, 686 F.3d 960, 963 (8th Cir. 2012). Chats may be "admissible for an additional reason: as circumstantial evidence (i.e., a non-hearsay purpose) associating [the defendant] with the child pornography found on his computer." United States v. Manning, 738 F.3d 937, 943 (8th Cir. 2014); see United States v. Christie, 624 F.3d 558, 570 (3d Cir. 2010) (noting notebooks and posts to website suggesting the defendant was a predator not unduly prejudicial where they indicated the defendant visited a child pornography website with the purpose of exchanging child pornography); United States v. Hite, 916 F. Supp. 2d 110, 117, 122 (D.D.C. 2013) (finding chats of a graphic nature not unfairly prejudicial when they were "relevant evidence of intent, knowledge, and absence of mistake in that it is probative of his sexual attraction to young children, and reflects [they had] previous conversations about similar topics"). In fact, images of child pornography, themselves, may not be unfairly prejudicial to a defendant, despite his willingness to stipulate to the content of the clips, to demonstrate a representative sample of images found to have been downloaded by a particular user to a computer. United States v. Worthey, 716 F.3d 1107, 1114-15 (8th Cir. 2013).

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