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Friday, August 8, 2008

Impulse Control: Seventh Circuit Finds That Psychologist Should Have Been Allowed To Testify In Internet Sex Sting Operation Case

The Seventh Circuit's recent opinion in United States v. Gladish  , 2008 WL 2927127 (7th Cir. 2008), contains an interesting discussion of Federal Rule of Evidence 704(b).  In Gladish, Brian E. Gladish was convicted of violating two federal statutes:  18 U.S.C. Section 1470, which prohibits knowingly transferring or attempting to transfer obscene material to a person under 16, and 18 U.S.C. Section 2422(b), which, as was relevant to Gladish's case, forbids knowingly attempting to persuade, induce, entice, or coerce a person under 18 to engage either in prostitution or in any sexual activity for which one could be charged with a criminal offense.

The facts of the case were as follows:

Gladish, a 35-year-old man, was caught in a sting operation in which a government agent impersonated a 14-year-old girl in an Internet chat room called "Indiana Regional Romance." Gladish visited the chat room and solicited "Abagail" (as the agent called herself) to have sex with him. Gladish lived in southern Indiana while "Abagail" purported to live in the northern part of the state.  "Abigail" agreed to have sex with Gladish, and in a subsequent chat he discussed the possibility of traveling to meet her in a couple of weeks, but no arrangements were made.  Gladish did, however, send "Abigail" a video of himself masturbating.

Based upon these facts, Gladish was convicted of violating the aforementioned statutes, and he acknowledged that he was guilty of violating 18 U.S.C. Section 1470 based upon sending the masturbation video to Abigail.  However, he claimed that he was not guilty of violating 18 U.S.C. Section 2422(b) because he did not take a "substantial step" toward persuading/inducing/enticing/ coercing "Abigail" to engage in "prostitution or in any sexual activity for which one could be charged with a criminal offense."  The Seventh Circuit agreed, finding that "[t]reating speech (even obscene speech) as the 'substantial step' would abolish any requirement of a substantial step."

It further resolved this "attempt" issue by noting that the trial court had erred by precluding Gladish from presenting the testimony of a psychologist.  Specifically, that psychologist had examined Gladish and prepared a report which stated that Gladish sought sexual gratification in Internet chat rooms and in watching pornographic films because he has a "character pathology” that has produced “a pervasive interpersonal apprehensiveness with the expectation that others will reject and disparage him."  According to the report, Gladish explained to the psychologist that he uses the Internet to gratify his sexual desires because "it's safer and less expensive-it's a cheap date and I don't have to worry about all the sexually transmitted diseases."  In other words, Gladish wanted the psychologist to testify to these facts to prove that he would never engage in sexual activities with "Abigail" in real life, meaning that he could not be guilty of "attempt."

The trial court, however, circumscribed this avenue of defense, finding that the psychologist's proposed testimony was inadmissible under Federal Rule of Evidence 704(b), which states that "[n]o expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone."

The Seventh Circuit rejected this conclusion, finding that Rule 704(b) itself (implicitly) states that experts can testify "with respect to the mental state or condition" of the defendant.  Thus, while Rule 704(b) precluded the psychologist from testifying that Gladish did not intend to have sex with "Abagail," he could have testified that it was unlikely, given Gladish's psychology, that he would act on his intent.  As the Seventh Circuit analogized, "You can sincerely intend to stop smoking, yet a psychologist might conclude that you had such poor impulse control that it was exceedingly unlikely that you would stop."

While it seems as if the Seventh Circuit was making a fine line distinction, I agree with its conclusion.  The point of Rule 704(b) is to preclude expert witnesses from force feeding the jurors the disposition in a case.  In other words, if a particular verdict is compelled if the jury accepts an expert's testimony, that testimony is improper.  So, if the psychologist testified that Gladish did not intend to have sex with "Abigail," jurors would be forced to find Gladish "not guilty" if they accepted his testimony because he could not be guilty of "attempt."  But if the psychologist merely testified that Gladish was unlikely to act upon his intent/desire, jurors could accept that such action was "unlikely" but still believe that Gladish planned to act upon his intent/desire in this case.  Thus, the Seventh Circuit properly found that the psychologist should have been allowed to testify.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/08/704b-us-v-gladi.html

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Last week I mentioned U.S. v. Gladish because of the substantial step analysis in the opinion. EvidenceProf focused on a different portion of the opinion:The Seventh Circuit's recent opinion in United States v. Gladish , 2008 WL 2927127 (7th Cir. [Read More]

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