EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, August 9, 2011

Date Of Birth: Eastern DIstrict Of Arkansas Finds No Error WIth Admission Of Birth Certificate In Child Pornography Case

Federal Rule of Evidence 803(9) provides an exception to the rule against hearsay for

Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

I don't believe that I have talked about Rule 803(9) yet on this blog, but the recent opinion of the United States District Court for the Eastern District of Arkansas in United States v. Blum, 2011 WL 3418399 (E.D.Ark. 2011), gives me my first chance.

In Blum, Michael Blum was convicted of production of child pornography (Count 2—Rachael), receipt of child pornography (Count 3), and possession of child pornography (Count 4). Specifically, the prosecution proved at trial that, during an online chat, Blum caused Rachael, a minor, to produce sexually explicit images of herself.  To prove that Rachael was indeed a minor, the prosecution introduced into evidence a copy her birth certificate late in trial without any prior notice to the defense.

After he was convicted, Blum brought a pro se Motion to Vacate, Set Aside, or Correct Sentence.  In Blum's motion, one of his claims was that his trial counsel was ineffective for failing to object when the prosecution introduced the copy of Rachael's birth certificate. The Eastern District of Arkansas disagreed, concluding that under Federal Rule of Evidence 803(9) "Rachael's birth certificate was admissible as a public record." Moreover, the court held that 

Even if the Prosecution did introduce the birth certificate "late in the trial when the defense had no prior knowledge of it," as Petitioner alleges, there is no reason to believe that Petitioner was prejudiced as a result. There is no reason to believe that had the defense had "time to investigate the validity of the document," it would have helped the defense.



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