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12-Aug-2019 17:09

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.

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. [a] major component of the entertainment on the Internet is the rapid repartee, in addition to having imaginative fun. Sexually explicit conversations tend to drive the chatting relationship, and are fueled by the anonymity of the created personas. The social science field was an area in which the Daubert factors involving peer review, publication, and potential error rates were not applicable.

Specifically, the defense proposed that the expert: “testify that . When engaging in Internet role-play, people love to experiment with their personas. Cross-examination could be used to expose weaknesses in the opinion. 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.

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