GA Court Again Excludes Psychosexual Expert in Child Sex Case

The testimony was being offered by the defense in order to establish an entrapment defense.

The defendant responded to a Craigslist ad posted by an undercover police officer. In the post, the officer stated he was looking for a “discreet male who would like to teach the finer aspects of life to a young female friend of mine.” The officer stated in a subsequent email that he was looking for someone to have sex with his two stepdaughters, ages 12 and 14. The defendant agreed to meet them and he arrived at the arranged time and place with a pack of condoms and some wine coolers.

Following his conviction, Young argued on appeal that the trial court erred by refusing to permit him to introduce testimony from an expert witness who would have supported his sole defense of entrapment. The expert, Dr. Davis, would have testified that Young was not predisposed to having sexual contact with underage children. He would have testified that because he lacked such a predisposition, the defendant would not have committed the offenses absent the inducement of law enforcement officers.

The Court stated that where the “the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge,” and “the conclusion determines the ultimate issues of fact in a case,” the jury must decide the case without the aid of expert testimony. The Court noted that in previous decisions, expert testimony that a defendant does not have a psychological predisposition toward having sexual contact with underage children has generally been excluded because it invades the province of the jury as to the ultimate issue in the case.

The Court of Appeals previously affirmed the exclusion of expert testimony in Lopez v. State, and it found that Lopez’s reasoning was applicable in this case. In Lopez, another Craigslist sting case, the expert similarly testified that the defendant lacked a sexual interest in children and, therefore, would not have committed the offense absent the inducement of law enforcement officers. Reiterating its decision in Lopez, the Court held that whether the defendant would have committed the crimes without the inducement of law enforcement was a question for the jury to answer without the aid of expert testimony.

The mistake made in both Young and Lopez is that the testimony of the defense expert went too far. No court will allow an expert to testify as to whether the defendant would have committed the crime absent inducement from law enforcement. As noted by the Court above, that is the ultimate issue of fact that must be decided by the jury. However, the expert should be permitted to testify that a particular defendant does not exhibit a sexual interest in children. This type of testimony would be based on psychological testing that is outside the knowledge of the average juror. Additionally, this testimony would be admissible as evidence that could support a conclusion by the jury that a defendant lacked the predisposition to commit the crime. The difference here is that the expert is not giving his opinion on the ultimate issue but rather is providing evidence that could be used by the jury to decide that issue.

Hopefully, the Georgia appellate courts will be able to readdress this issue at some point and answer the question of whether expert testimony could ever be introduced to support an entrapment defense in these cases. I believe that if the testimony of the expert is limited, and does not address the ultimate issue for the jury, our courts will conclude that the evidence is admissible.