EvidenceProf Blog

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

Wednesday, September 10, 2008

To Catch A Predator?: Second Circuit Questions Trial Judge's Decision To Exclude Expert's Testimony On Role-Playing In Internet Sex Chatrooms

In its recent opinion in United States v. Joseph, 2008 WL 4137900 (2nd Cir. 2008), the Second Circuit reversed a man's conviction based upon an improper jury charge but also made some interesting statements about expert testimony.  In Joseph, Dennis Joseph appealed from his conviction for using his computer to send messages on the Internet to entice an individual he believed to be an underaged girl to engage in unlawful criminal sexual activity, in violation of 18 U.S.C. Section 2422(b).

Specifically, at trial it was proven that Joseph visited an Internet chat room called "I Love Older Men," where he initiated a conversation with an individual with the screen name "Teen2Hot4U," who purported to be a 13-year-old girl named "Lorie."  "Teen2Hot4U" was in fact Stephanie Good, a 55-year-old woman who spends 20 to 50 hours a week surfing the Internet for those she believes to be sexual predators and reporting her finds to the FBI.  And that's exactly what she did with Joseph, later referring him to her friend "Julie," who was in fact FBI agent Austin Berglas posing as a 13 year-old girl

Joseph later arranged a meeting with these girls, whereupon he was arrested by authorities.  Joseph's defense at trial was that, inter alia,

     "when he encountered 'Lorie' in what he believed was an 'adult sex theme[d]' chat-room, he was convinced that she was an adult posing as a teenager. He claimed that her familiarity with sexual terminology convinced him that she was part of a 'make-believe, pretend world.' When 'Lorie' offered to introduce him to 'Julie,' he played along. Joseph believed 'Julie' was also a sexually experienced adult engaged in role-playing."

Joseph sought to bolster his claim through the testimony of his expert witness, Dr. James Herriot, who would have testified about role-playing in the context of sexually explicit conversations on the internet. Dr. Herriot is an Associate Professor of Clinical Sexuality at the Institute of Advanced Human Sexuality in San Francisco and proposed to testify about a distinct culture of the Internet in which one can become a "fantasy character[]."  Joseph also wanted Dr. Herriot to explain the realities and motivations of online role-playing via chatrooms and e-mail.  The trial judge, however, precluded such testimony.  The judge then proceeded to give an improper jury charge, which led to Joseph's conviction to be reversed on appeal.

The Second Circuit, however, also urged the trial court to revisit its ruling on the admissibility of Dr. Herriot's testimony.  The Second Circuit found that Dr. Herriot could likely be qualified as an expert witness under Federal Rule of Evidence 702 because he wrote his Ph.D. thesis on sexual communication on the Internet and had conducted a large number of interviews and studied chat-room conversations to understand sexual behavior on the internet.  The court also found that his testimony would assist the jury because "[a]lthough some jurors may have familiarity with Internet messaging, it is unlikely that the average juror is familiar with the role-playing activity that Dr. Herriot was prepared to explain in the specific context of sexually oriented conversation in cyberspace."  Indeed, the court noted both that "[n]umerous courts have upheld the admission of expert testimony to explain conduct not normally familiar to most jurors" and that Dr. Herriot had previously been allowed to testify on the subject in other cases in federal courts.

The Second Circuit then found that the fact that Dr. Herriot's testimony would rely on inadmissible hearsay -- the interviews and chat-room conversations -- shouldn't give the trial court pause.  That's because, in relevant part, Federal Rule of Evidence 703 states that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted."  The court then found that Dr. Herriot's testimony should be admissible because "[s]ocial science experts commonly base their opinions on interviews."

I agree with the well reasoned analysis of the Second Circuit and think that Dr. Herriot's testimony should be admissible on retrial.



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I was the trial lawyer for both of the Dennis Joseph trials. The first trial resulted in a hung jury, and the discussions of the various legal issues was wild. The government stridently opposed an entrapment charge, though there was ample evidence to support it. They changed their position and rightfully agreed to the entrapment charge during the second trial. As good a job as the opinion does in describing the arguments made during the charge conference of the second trial, you really should read the transcript-it was so detailed, and so forceful that it's hard to believe anyone could for a second believe the arguments were not preserved. I have to go back and read Judge Walker's dissent again, because as an attorney and as a trial advocacy professor I want to make sure I understand what the dissent suggests concerning the abandonment of the argument issue. What my first reading of the dissent suggests to me is that if I raise an objection at trial and the Court overrules it, I need to worry that if I ask for a curative or limiting instruction, I may be deemed to have abandoned that issue for appeal.
The trial scene surrounding the 400 or so pictures admitted into evidence at the end of the case was the stuff of movies. As the opinion describes, the evidence was admitted over objection, and then I was prevented from challenging it in any way whatsoever. I am far from the first lawyer to experience such circumstances, and sadly, it's happened to clients all too often over these past several years.
It is, however, somewhat satisfying to have the record set straight and have the case remanded.

Posted by: Robert Altchiler | Sep 12, 2008 5:45:50 AM

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