The Circuit Court held that the defense's proposed expert testimony was analogous to the type of expert testimony that is frequently introduced by the Government.
In U.S. v. Soler, a federal internet sting prosecution in Puerto Rico, the First Circuit Court of Appeals found that the defendant was entitled to a new trial as the district court improperly limited the testimony of his expert witness.
The defendant was a 64-year-old retired New York City police officer living in Puerto Rico. He was separated from his wife and began using dating apps. He responded to an ad on Craigslist of a woman purporting to be “69 years old” stating that she was going to be in Mayaguez for a few weeks. This was an ad posted by a Homeland Security agent.
After responding to the ad, the defendant received an email stating, “Hey, what’s up can you send me a message on Kik Messenger at JanisN666. If you’re into young thin girls say hi.” During the ensuing conversation on Kik, “Janis” stated that she was only 13 and the defendant initially laughed thinking that she was joking.
The agent sent him pictures of “Janis” which were childhood pictures of a female law enforcement officer. According to the Court, the pictures clearly depicted a minor. They then engaged in sexually explicit conversation over the next several days.
They discussed meeting up and ways in which “Janis” would be able to get away from her family without getting caught. They eventually agreed to meet at a nearby Walmart where the defendant was arrested.
The defendant was then indicted in federal court with the offense of attempting to persuade, induce, or entice a minor to engage in criminal sexual activity. He was convicted at trial and he then filed an appeal.
The defendant retained Dr. Chris Kraft to testify as an expert at trial. Dr. Kraft is a board-certified psychologist at Johns Hopkins University who specializes in internet sexual behaviors. The defense sought to elicit testimony from Dr. Kraft on two issues central to the case.
The first issue, which the district court permitted him to testify to, was related to the psychology of internet sexual communication and the frequency that people engage in role-playing, imagination, and exaggeration when communicating online.
The second area of proposed testimony from Dr. Kraft was the differences between mere fantasy and role-playing versus a desire to actually engage in sexual acts with a minor. The defense sought to elicit Dr. Kraft’s opinion that the communications in this case were more consistent with role-playing by adults and not consistent with the conduct of actual online predators. The district court excluded this testimony at trial.
The Court found no meaningful difference between the type of testimony that was being excluded by the district court and expert testimony that is frequently presented by the government in drug trafficking prosecutions (eg., testimony about the operations, coded language, organization, and manners of drug distribution).
The Court also pointed to a decision out of the Seventh Circuit where the government was permitted to introduce expert testimony that the defendant engaged in conduct that was consistent with those who molest children. The Court in that case similarly found that the expert testimony was akin to the type permitted in drug prosecutions.
Therefore, the Court found that Dr. Kraft’s proposed testimony was admissible and that the district court’s exclusion of it was an abuse of discretion. The defendant’s sole defense was that he was merely role-playing and that he did not believe that “Janis” was a minor. Dr. Kraft’s testimony would have provided an explanation for this as well as educated the jury as to how the defendant’s seemingly sinister conduct could actually be just innocent sexual fantasy or role-playing.
Therefore, the Court concluded that Dr. Kraft’s testimony was highly relevant to the issue of whether the defendant believed “Janis” was a minor. This was a central issue in the case and it was a fact that the government had to prove beyond a reasonable doubt.
As a result, the Court reversed the defendant’s conviction and remanded his case back to the district court for a new trial.
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