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July 15, 2023 Trial Tactics

Rule 414 and Detailed Evidence

Stephen A. Saltzburg

The Issue

Fed. R. Evid. 414 reads in relevant part as follows:

(a)Permitted Uses. In 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. . .(d) Definition of “Child” and “Child Molestation.” In this rule and Rule 415:(1) “child” means a person below the age of 14; and(2) “child molestation” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:. . .(B) any conduct prohibited by 18 U.S.C. chapter 110;

The issue is how detailed the evidence of other child molestation may be.

An Illustrative Case

The issue of the permissible level of detail arose in United States v. Schave, 55 F.4th 671 (8th Cir. 2022). The case arose when the Minneapolis Police Department received Cybertips, reports generated by an online service provider that illegal activity is taking place on its network, connecting child pornography to a certain residence in Minneapolis. The tips, generated by the computer search engine Microsoft Bing, flagged eight images as matching child-exploitation images associated with four IP addresses assigned to a Paul Sutton at the residence.

Minneapolis Police Officer Dale Hanson confirmed that Sutton lived at the residence, but he discovered that Gene Paul Schave lived there too. Officer Hanson learned that Sutton had a previous conviction for molesting a child, Schave had a previous conviction for possession of child pornography, and there was a room for rent at the residence.

Using his extensive experience investigating internet exploitation of children, Officer Hanson submitted a search warrant application to a Minnesota state court and obtained a warrant to search the residence. Officers executed the warrant and found child pornography on an electronic tablet that was plugged in and placed inside the nightstand next to Schave’s bed. Schave was indicted for possession of child pornography.

The government later filed a motion in limine seeking leave to admit evidence under Rule 414 that included Schave’s prior conviction for possession of child pornography and past admissions of molesting children. The trial judge admitted almost all the evidence over Schave’s objection, and a jury ultimately found him guilty as charged.

The Court of Appeals’ Analysis

The court agreed with the trial judge that the evidence was relevant and admissible:

The testimony at trial describes Schave abusing young females by touching or examining their genitalia. The indictment describes child pornography involving young females and similar conduct. Further, the district court “tempered the prejudicial effect of this evidence by providing a jury instruction on propensity evidence.” We agree with the district court that, under these circumstances, evidence related to Schave’s prior sexual abuse of young girls shows a sexual interest in prepubescent females.

We also agree with the district court that Schave’s prior conviction for possession of child pornography has probative value because of its similarity to the charged offense. A prior offense must be “similar enough” to the charged crime so as “to be probative of the defendant’s propensity to commit that specific offense.”

The court made three important observations about Rule 414: (1) it permits other acts that fall within the Rule to be used to prove propensity, (2) the trial judge must consider Rule 403 when Rule 414 evidence is offered and must determine whether the danger of unfair prejudice substantially outweighs the probative value of the evidence, and (3) unfair prejudice as “an undue tendency to suggest decision on an improper basis, including evidence which is so inflammatory on its face as to divert the jury’s attention from the material issues in the trial.” The court suggested that “[t]o decide whether a district court properly balanced the probative value of the proposed Rule 414 evidence with the risk of unfair prejudice under Rule 403, we consider whether the district court placed limits on the testimony and provided cautionary jury instructions.” The court found that the trial judge had instructed the jury on propensity evidence and had placed a limit on the evidence by excluding evidence of Schave’s sexual behavior while in treatment.

The court had little difficulty affirming the admission of Schave’s prior conviction since it agreed with the trial judge that the underlying facts showed substantial similarity to the charged facts: “In 2010, Schave was convicted of possessing child pornography depicting prepubescent females, and those images were found on an electronic device in his bedroom. In this case, Schave was charged with possession of child pornography depicting prepubescent females, and those images were found on an electronic device in his bedroom.”

The court recognized, however, that the government’s presentation of Rule 414 evidence was “expansive” and not confined to the prior conviction. The court seemed readily to approve the admission of testimony by two government witnesses while raising questions about the testimony of two other witnesses.

The court described the testimony of the two witnesses of whom it approved as providing “straightforward Rule 414 testimony.” Officer Hanson, who obtained the search warrant leading to Schave’s indictment, testified that he investigated Schave in 2010 and discovered the evidence that led to the 2010 conviction. Hanson found that Schave was using peer-to-peer file sharing to distribute child pornography and located child pornography on Schave’s computer. Bobbie Chevalier-Jones, who was one of Schave’s supervised release agents when he was released from custody, testified that she was familiar with Schave’s prior child pornography conviction and sexual interest in prepubescent girls. It is not clear from the court’s opinion whether her familiarity was based upon the evidence adduced in 2010, from conversations with Schave, or both.

The other two witnesses went into greater detail. Ann Moran, Schave’s probation officer, described the images related to the prior conviction as depicting pubescent and prepubescent females. Moran testified that Schave told her that he searched for three- and four-year-old children but preferred eight- to 12-year-old girls because of “their slim, undeveloped shape.” Schave reported that he used the images for “arousal and masturbation purposes,” viewing child pornography on “five to six sittings for ten to 12 hours per sitting, masturbating one to two times daily.” This testimony about Schave’s sexual conduct obviously went beyond proving that he possessed child pornography, but it was not as damaging as her other testimony.

Moran also testified that she asked Schave whether he had sexual contact with any minor and that, while he originally denied any such contact, he eventually admitted to multiple instances of molesting female children whom he knew. The trial judge permitted Moran to describe each incident with each child in extended, sexually graphic, and inflammatory detail. Moran testified that the first victim was a five-year-old developmentally disabled female with whom Shave had multiple sexual contacts; the second victim was an eight-year-old female Schave abused on multiple occasions; the third victim was a seven-year-old female; and the fourth victim was a two- to three-year-old female.

Annette Maurer was Schave’s first supervised release agent. She described a letter, published to the jury, in which Schave apologized for lying to her and admitted he had “other undisclosed victims.” The letter indicated that the first victim was a two- to three-year-old girl; the second was a nine-year-old girl; and the third was a four-year-old girl. Maurer, like Moran, provided graphic descriptions of the molestation.

The court of appeals was troubled by the testimony of these two witnesses:

We are troubled by the quantity and level of detail presented to the jury as Rule 414 evidence. While Schave’s prior molestation was relevant for the purpose of establishing his sexual interest in prepubescent girls, the evidence went beyond the mere presence of his interest. When evaluating a district court’s balancing under Rules 403 and 414, the D.C. Circuit has considered, among other factors, whether the Rule 414 evidence was “especially graphic” in the context of the crimes for which the defendant was charged. United States v. Lieu, 963 F.3d 122, 128–29 (D.C. Cir. 2020). Here, the Rule 414 testimony included numerous graphic descriptions of child molestation after the government introduced evidence related to Schave’s propensity to commit the offense and sexual interest in prepubescent females. These graphic descriptions present a particular risk of undue prejudice given the prior, uncharged sexual offenses are arguably more serious and therefore more prejudicial . . . than the charged crime. (Some internal citations omitted).

The court did not hold that the trial judge abuse discretion in admitting the detailed testimony because it concluded that, even if it assumed that there had been an abuse of discretion, it would find the error harmless in light of the other overwhelming evidence of Schave’s guilt.


Recall that the individual with whom Schave shared his residence was Sutton, who was previously convicted of child molestation. At trial, Schave claimed that Sutton, whom Schave let use the tablet for three days, was responsible for the images on the electronic tablet. The court of appeals noted that Schave did not initially point to Sutton. Instead, when Officer Hanson originally asked Schave whether there was child pornography on any of his devices, he responded, “I don’t know.” After he was arrested, he told Chevalier-Jones, after being told there might be federal charges against him, “You know what’s on there and I know what’s on there and they know what’s on there, so what’s the point?” Although Schave told the jury he was not confessing to possession of child pornography, he also admitted that he lied on more than one occasion about molesting prepubescent females.

There is no doubt that there was sufficient evidence to convict Schave and for a jury to disbelieve his efforts to shift the blame to Sutton. But is it so clear that the incredibly detailed and clearly prejudicial testimony that the court of appeals found to be problematic did not influence the jury? It is hard to know from a distance, but what is clear is that the prosecution took a risk by offering testimony that troubled the court of appeals. The court could have reversed the conviction to send a message that testimony that goes far beyond showing a propensity to possess child pornography is not acceptable. Given the court’s concern that “[t]hese graphic descriptions present[ed] a particular risk of undue prejudice, prosecutors in future cases might decide that the risk of going into such graphic details is not worth taking.

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Stephen A. Saltzburg

The George Washington University Law School

Stephen A. Saltzburg is the Wallace and Beverley Woodbury University Professor at The George Washington University Law School and is a former chair of the Criminal Justice Section.