Circuit Consensus Noted On Admission Of Modus Operandi Evidence Of Sex Offender Crimes Under FRE 413

In trial for transporting a minor for unlawful sexual relations, Tenth Circuit finds no error in expert opinion testimony on the modus operandi of sex offenders (e.g., that they are generally not strangers to their victims), noting that other circuits reached a similar conclusion that "jurors would benefit from learning of the modus operandi of sex offenders" because the "methods sex offenders use are not necessarily common knowledge," in United States v. Batton, 602 F.3d 1191 (10th Cir. April 23, 2010) (No. 09-8079)

On October 14, 2009 the Federal Evidence Blog reported on an Eighth Circuit kidnapping case that found there was no error in the trial judge admitting the defendant's two prior sexual abuse convictions "in that they demonstrated the defendant’s modus operandi" under FRE 413 in the case of United States v. Rodriguez, 581 F.3d 775 (8th Cir. Sept. 22, 2009) (No. 07-1316). Recently the Tenth Circuit considered a case involving a similar issue. In this recent case, the issue was not one of the prior crimes of the defendant, but rather the admission of expert testimony regarding the modus operandi of sex crime perpetrators and victims.

In the Tenth Circuit case, defendant Batton was prosecuted for interstate transportation of a minor for unlawful sexual relations and convicted. The victim testified at trial "that Batton had touched his genitalia on a number of occasions from the time J.D. was in second grade until he finished sixth grade. He also testified that on the second and third days of the Chicago trip [with the defendant], Batton had engaged in sexual contact with him." Batton, 602 F.3d at 1195.

In appealing his conviction, the defendant contended that the trial court erred by admitting into evidence "testimony of Dr. William Heineke, the government's expert witness" on issues of the psychology of sex crime abuse. The trial court:

"held a Daubert hearing to determine his qualifications and the reliability of his proposed testimony. After hearing arguments from both Batton and the government and after considering testimony on Dr. Heineke's experience and qualifications, the trial court ruled that Dr. Heineke had extensive expertise regarding sex offenders and their victims because of his long clinical career in treating both and by virtue of his research in the area. The district court concluded it would allow Dr. Heineke to testify, but only about the characteristics of sex offenders and their victims to dispel any of the jurors' misconceptions that the only people who commit sexual offenses are strangers, not trusted family members or friends. The trial court emphasized that Dr. Heineke was not to offer any opinions about how his testimony might relate to the facts of Batton's case, nor was he to offer any opinions about the credibility of witnesses."

Batton, 602 F.3d at 1200-01.

The circuit rejected the defendant's objection that the expert testimony was "nothing more than improper 'profile' evidence.'" In doing so, the circuit explained the crucial role modus operandi evidence might play under FRE 413:

"We have previously allowed testimony regarding criminal methods that are beyond the common knowledge of lay jurors. 'Expert testimony is properly admitted if the subject matter is closely related to a particular profession, business or science and is not within the common knowledge of the average layperson.' Our reasoning for this is rooted in Federal Rule of Evidence 702.... Dr. Heineke testified that sex offenders are generally not strangers to their victims and their families but are more often than not close family members, friends, or well-respected individuals in a community who often use their positions to groom their victims into trusting them. He also informed the trial court that many lay persons carry a common misconception that sex offenders are only strangers or fit some misconceived criminal caricature. This specialized information may very well be beyond the knowledge of many jurors."

Batton, 602 F.3d at 1201 (citations omitted).

In allowing such modus operandi evidence, the circuit noted that "[o]ther circuits have reached a similar conclusion" and cited as examples the following cases from other circuits:

  • Seventh Circuit: United States v. Romero, 189 F.3d 576 (7th Cir.1999) - "[T]he Seventh Circuit held that contemporary expert testimony regarding the modus operandi of child molesters was admissible. Id. at 585-87. In Romero, the defendant was charged with kidnapping and transporting a minor with the intent to engage in criminal sexual activity. The trial court allowed expert testimony regarding the practices of child sex abusers to dispel 'from the jurors' minds the widely held stereotype of a child molester as a "dirty old man in a wrinkled raincoat" who snatches children off the street.” Id. at 584. The Seventh Circuit approved the trial court's decision, noting that the expert testimony showed the sex abusers' grooming techniques. Id. at 585. Most notably, the testimony “illuminated how seemingly innocent conduct such as [the defendant's] extensive discussions ... [with his victim] ... could be part of a seduction technique.” Id. Batton, 602 F.3d at 1202.
  • Fifth Circuit: United States v. Hitt, 473 F.3d 146 (5th Cir.2006) - "The admission of expert testimony regarding the modus operandi of child molesters, including grooming, was not an abuse of discretion. Id. at 158. As in other cases we have discussed, in Hitt, the defendants were charged with transporting a minor across state lines for the purpose of engaging in illicit sexual activity. Id. at 150. The defendants argued that such expert testimony was inappropriate character evidence and should not have been admitted. Id. at 158. The Fifth Circuit rejected that argument, noting that several other circuits also allowed testimony regarding the grooming methods of sex offenders. Id.
  • Third Circuit: United States v. Hayward, 359 F.3d 631, 636-37 (3d Cir.2004) - The Tenth Circuit also noted that the Fifth Circuit in Hitt cited the Third Circuit in Hayward as "holding that expert testimony regarding the grooming techniques of child molesters was admissible."

The Tenth Circuit noted that this consensus properly used FRE 702 in difficult sex abuse cases. In such cases, "jurors would benefit from learning of the modus operandi of sex offenders. The methods sex offenders use are not necessarily common knowledge." As demonstrated in defendant Batton's trial, "[t]he record supports the trial court's determination that Dr. Heineke had sufficient expertise to discuss how sex offenders prepare their victims. Further, the trial court was careful to limit Dr. Heineke's testimony to only the correction of possible juror misconceptions regarding how sex offenders behave and what they look like. With those limitations in place, the trial court was well within its discretion to allow Dr. Heineke's testimony." Batton, 602 F.3d at 1202. With the decision in Batton, at least four of the circuits have come to explicitly endorse the admission of expert evidence regarding the modus operandi of offenders under FRE 702 and FRE 413.

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