Second Circuit on Internet Role Play

Court-Martial Trial Practice has a discussion about a Second Circuit case wherein the court reversed a conviction because the trial court did not allow an expert to testify about Internet chat role-playing. You can read the decision here. From the blog post:

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.