Comparison Evidence in Obscenity Trials
This Article critiques the approach endorsed in Hamling, particularly regarding the Court’s failure to consider how the presentation of proof in an obscenity trial affects the defendant’s constitutional rights. The Article urges that relevant comparison evidence should be admissible despite the risk of confusion or the opportunity to present expert testimony, and furthermore, that a court should be required to make explicit its findings regarding the relevancy of comparison evidence. Part I of the Article demonstrates the constitutional significance to the obscenity defendant of evidence, particularly comparison exhibits, bearing on prevailing community standards. Part II considers the assessment of the relevancy of comparison evidence and the need for written evaluation from a trial court excluding comparison evidence as irrelevant. Finally, part III argues that countervailing factors normally should not be considered sufficiently weighty to justify exclusion of relevant comparison evidence.