Expert Can Testify About “Role-Playing In ... Sexually Explicit Conversations On The Internet”


Majority panel suggests expert testimony should be permitted on retrial of charge for using the Internet to solicit sexual activity with a minor, in United States v. Joseph, 542 F.3d 13 (2d Cir. Sept. 9, 2008) (No. 06-5911-CR)

After being arrested for using the Internet to solicit sexual activity with a person the defendant believed to be a minor, can the defendant present expert testimony about Internet “role-playing” to support his defense that he thought the person he communicated with on the Internet was an adult? A divided Second Circuit panel recently addressed this issue and answered in the affirmative.

Defendant Joseph, a married father communicated in chat rooms with individuals who claimed to be female minors. In fact, they were connected with law enforcement. One individual said she was thirteen years old but actually was an agent. He was arrested when he arrived at a pre-arranged meeting place. At his trial, he offered the expert testimony of a professor of clinical sexuality concerning online “fantasy characters” and role-playing in chat rooms and by e-mail. Specifically, the defense proposed that the expert:

“testify that . . . [a] major component of the entertainment on the Internet is the rapid repartee, in addition to having imaginative fun. When engaging in Internet role-play, people love to experiment with their personas. Typically, people weave a bit of truth about themselves with a great deal of imagination and/or exaggeration. The Internet presents [a] competitive entertainment. . . . Sexually explicit conversations tend to drive the chatting relationship, and are fueled by the anonymity of the created personas. . . . Often, chatters become curious about who is ‘behind the screen.’ There are many methods chatters use to ‘de-mask’ the other participant: such as asking for a photograph, attempting a phone conversation, asking for information that can be independently verified or even attempting to meet in a public space.”
Joseph, 542 F.3d at 22. The trial court excluded the testimony. After his conviction, a Second Circuit majority reversed based on instructional error. However, in remanding the case, majority suggested the trial court reconsider the excluded expert testimony. The expert was qualified based on his Ph.D. thesis on Internet sexual communications and extensive interviews and studies on chat-room conversations focusing on sexual behavior on the Internet. 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.

Circuit Judge Walker dissented. He noted that the expert testimony, even if relevant, could be excluded under FRE 403 as on grounds of “undue delay, waste of time, or needless presentation of cumulative evidence, ” particularly after the defendant testified to present his defense about role-playing.

While it remains to be seen what the trial court will do on remand, if the majority view is applied in other cases, the door may be opened for other social science expert testimony concerning Internet practices.

Federal Rules of Evidence