Internet crimes & experts & role-play.

Expert Can Testify About “Role-Playing In … Sexually Explicit Conversations On The Internet”, Federal Evidence Review, 25 September 2008.

For those of us who have done internet solicitation cases, the concept of role-playing and lying amongst participants is a known serious issue. These cases, as have mine, usually come up because the client shows up to meet the too young for prime time player. Low and behold blow, it’s a cop. The defense then is “I didn’t believe she was under age, I thought this was all part of the game, and that I was going to meet an adult interested in some role-play sex.” Of course these police stings are the ultimate role-playing game.

In United States v. Joseph, 542 F.3d 13 (2d Cir. 2008), the divided court reversed the conviction. In dicta, the court said the court should reconsider the denial of expert testimony about role-playing in internet chat sessions, at retrial.

The expert testimony would assist the jury since it was “unlikely that the average juror is familiar with the role-playing activity” and the expert could explain in the context of sexually oriented conversations on the Internet. The social science field was an area in which the Daubert factors involving peer review, publication, and potential error rates were not applicable. Cross-examination could be used to expose weaknesses in the opinion.

Dr. Herriot’s field of study and experience qualified him to offer relevant testimony…. Dr. Herriot’s opinions appear to be highly likely to assist the jury to ‘understand the evidence.’ … Although 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…. Obviously a jury would not have to accept Joseph’s claim that he planned only to meet ‘Julie’ to learn who she was and that he lacked any intention to engage in sexual conduct with her, but the frequent occurrence of such ‘de-masking’ of chat-room participants might provide support for the defense.”

See also, Prosecuting Internet-based sex crimes, 11 September 2008, for more background on the case and the players. Dr. Franklin points to United States v. Wragg, a case in which the same expert was allowed to testify, and in which there was an acquittal.

The expert(s) can be found at Institute of Advanced Human Sexuality.

tip: Federal Evidence Review.