In United States v. Thornhill, --- F.3d ---, No. 18-30046 (9th Cir. 2019), the Court affirmed the defendant's conviction for receipt of child pornography,
holding that the district court did not abuse its
discretion when it admitted, under Rule 414, evidence of the defendant’s prior state conviction for sexual abuse of a minor.
Rule 414(a) provides: “[i]n a criminal case in which a defendant is
accused of child molestation, the court may admit evidence
that the defendant committed any other child molestation.
The evidence may be considered on any matter to which it is
relevant.”
Rule 414, however, is subject to Rule 403 balancing. Previously, in Lemay, the Court set forth a multi-factor test guiding the application of Rule
403 in the Rule 414 context.
The decision in this case focused on the fifth factor: "the necessity of the evidence beyond the
testimonies already offered at trial."
The majority determined that, despite this language, a district court need not wait until the introduction of the other trial evidence before ruling on the proposed Rule 414 evidence.
Concurring in the decision, but not the reasoning, Judge N.R. Smith explained, "LeMay requires trial judges to reserve judgment on this issue
until after the other testimony has been offered." However, in this case, he found the timing error harmless.
