Friday, March 01, 2013

Kidnapping, Experts and Paraphilia

You’re probably aware of, if you haven’t been following, the Cannibal Cop’s trial.  This post examines a ruling the federal district court judge who has the case made on an evidentiary issue that arose before the trial began.  U.S. v. Valle, 2013 WL 440687 (U.S. District Court for the Southern District of NewYork 2013) (“U.S. v. Valle, supra”).

Gilberto Valle is not charged with cannibalism, actual or aspiring.  As far as I can tell, only one state – Idaho – makes cannibalism, as such, a crime.  My guess is that in many, if not all, of the other states, it would be prosecuted as abuse of a corpse.  That seems to be the approach the Model PenalCode, an influential template of criminal laws, takes, and it has influenced many of the states.

Valle, however, is charged with neither crime.  He is, instead, being prosecuted in federal court and is charged with two federal crimes:  “conspiracy to commit kidnapping, in violation of 18 U.S. Code § 1201(c), and accessing a federal database without authorization, in violation of 18 U.S. Code §1030(a)(2)(B).”  Indictment, U.S. v. Valle, 2012 WL 5835831 (November 15, 2012).  (I can’t find the indictment online, but the preceding Criminal Complaint, which charges the same crimes, is available here.)

At some point before the trial began, the prosecution “moved in limine for an order excluding certain proposed expert testimony.  U.S. v. Valle, supra.  As Wikipedia notes, in U.S. law, a motion in limine is used to ask the trial judge to admit or bar the admission of evidence. 

As you may already know, the prosecution is contending that Valle used “emails and Internet `chats’” to conspire

with three others to kidnap eight women. . . .The Government represents that in these electronic communications [Valle] and his alleged co-conspirators `discuss, in graphic detail, plans to kidnap, torture, kill and cannibalize specific and identified women.’ . . . The few electronic communications that have been disclosed to the Court discuss acts of extreme violence, generally in a sexual context. . . .

It appears that the `chats’ the Government intends to introduce at trial occurred over sexual fetish websites that cater to individuals interested in violent sexual fantasy, sadomasochism, and bondage, as well as topics such as rape, genital mutilation, dismemberment, and cannibalism. . . . The Government may introduce at trial images and videos [Valle] downloaded to his computer showing acts of violence, including staged torture and staged videos of women being hunted in the woods. . . .

The defense . . . will be that [Valle] had no criminal intent, and his `chats’ over the internet reflect nothing more than sexual fantasies.  [Valle] intends to assert that he suffers from a psychological condition known as `paraphilia.’ . . . This condition allegedly causes [Valle] to `derive[ ] sexual excitement from the imagined psychological or physical suffering [of women] (including the abduction and binding) of . . . female “victim[s].”’

U.S. v. Valle, supra.  If you’re interested, you can read more about all that in any of the various news stories available online.

The evidence at issue in the motion in limine was the defense’s intention to
call Park Dietz, “a forensic psychiatrist and criminologist,” as an expert witness.  U.S. v. Valle, supra.  You can find a summary of Dietz’s education and credentials here.  The opinion notes that he has “authored more than 100 articles and book chapters, and has lectured on, topics such as forensic psychiatry,  paraphilia, sexual sadism and bondage, pornography, sex offenses, sex offender profiles, predicting individual criminality, and stalking.”  U.S. v. Valle, supra. 

In offering Dietz as an expert witness, the defense explained that he would testify as

an expert in the area of forensic psychiatry and criminology, and, more particularly, as an expert in sexual fantasy, extreme or bizarre sexual role play, sexual sadism, sadomasochism and BDSM subculture, and the extent to which persons involved in such alternative sexual lifestyles carry out their fantasies or role playing. . . .

U.S. v. Valle, supra. 

More precisely, the defense said Dietz was expected to testify that Valle does not

`suffer from any major mental illness, psychotic illness, or personality disorder associated with violence or criminality. . . . Dietz will explain . . . that Valle does meet the diagnostic criteria for Paraphilia, as specified in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (`DSM–IV’)(American Psychiatric Association 1994).’

`Dietz will discuss the history of scientific understanding of Paraphilia, and will testify that the essential features of a Paraphilia are recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one's partner, or 3) non-consenting persons, that occur over a period of at least six months. . . .’

`Dietz will opine that Mr. Valle's particular Paraphilia involves recurrent fantasies of sexual sadism in which he derives sexual excitement from the imagined psychological suffering (including the abducting and binding) of a female “victim.”  Dietz will further testify that Valle's internet communications and related actions in this case are consistent with the modus operandi of fantasy role-play and storytelling engaged in by people who have a Paraphilia.’

U.S. v. Valle, supra.  Dietz was also expected to testify that Valle “`that Valle “lacks any of the risk factors for violence . . . with the exception of some bouts of intoxication . . . and various psychosocial stressors.’”  U.S. v. Valle, supra. 

The government moved to bar Dietz from testifying “because (1) it will not be helpful to the jury under Federal Rule of Evidence 702 and (2) will address the `ultimate issue’ in this case, in violation of Federal Rule of Evidence 704(b).”  U.S. v. Valle, supra. 

As to the first issue, the district court judge found that “Dietz's proposed testimony is both relevant under Federal Rule of Evidence 401 and likely to be helpful to the jury under Federal Rule of Evidence 702.”  U.S. v. Valle, supra.  As Wikipedia explains, an expert witness can give his/her opinion on issues relevant to the charges in a case when he/she testifies at trial.  Rule 702 specifically allows the opinion testimony if the expert’s testimony is reliable, is based on “sufficient facts or data” and will help the jury to decide a “fact in issue”, such as what, precisely, Valle was up to online.  Rule 401 simply defines when evidence is “relevant” and therefore presumptively admissible at trial. 

With regard to Dietz and Rules 401 and 702, the judge explained that his testimony

will address a number of subjects that are highly relevant to this case, including the likelihood of violent conduct by men who are sexually aroused by sexually sadistic images; the coping mechanisms such men often develop, including role play over the internet; and the psychological condition that Valle allegedly suffers from, and how that condition has manifested itself in his actions. 

All of these topics are beyond the ken of the average juror, and Dietz is well situated by his education, training, research, and academic study and writings to address these issues.

U.S. v. Valle, supra. 

In arguing that Dietz should not be allowed to testify, the prosecution relied primarily on

U.S. v. DiDomenico, 985 F.2d 1159 (U.S. Court of Appeals for the 2d Circuit 1993), where the Second Circuit affirmed the district court's exclusion of expert testimony regarding defendant's supposed `dependent personality disorder.’ . . . 

In excluding the proposed expert testimony as unnecessary and not helpful to the jury, Judge Cabranes noted it was offered to show the defendant's `asserted vulnerability and susceptibility to being duped by her boyfriend. Expert testimony on this relatively commonplace experience is simply inappropriate.’ . . . The Second Circuit agreed, finding that the defendant's claim that she acted under the influence of her boyfriend `was not hard to assimilate and . . . addressed a subject matter within the experience of the jury.’ . . .

U.S. v. Valle, supra. 

The judge in the Valle case explained that the

proffered expert testimony here is of an entirely different nature. Dietz will not be addressing any matters that can fairly be described as `commonplace experience[s].’ The subject matter at issue is likely to be entirely foreign to the jury, and  Dietz's testimony is likely to be helpful to the jury in assessing Valle's state of mind.

U.S. v. Valle, supra. 

As noted above, the prosecution also argued that Dietz’s testimony should be excluded because it would violate Federal Rule of Evidence 704(b), which states that “[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”  U.S. v. Valle, supra. 

Valle, on the other hand, argued that Dietz’s testimony would not violate

Rule 704(b), because `[h]e will not state an opinion about whether Valle did or did not have the criminal intent to conspire or kidnap. He will not even opine about whether Valle had the capacity to form criminal intent.’ . . . (emphasis in original).

Instead, [Valle] argues, Dietz will offer testimony designed to assist the jury in understanding Valle's highly unusual psychiatric condition, which causes him to experience sexual arousal from discussing, or viewing scenes of, imagined psychological or physical suffering of women, particularly in a sexual context. 

Dietz will further testify that `Valle's internet communications and related actions in this case are consistent with the modus operandi of fantasy role-play and storytelling engaged in by people who have Paraphilia’. . . .

U.S. v. Valle, supra. 

The judge agreed with Valle, noting that

[n]one of this proposed testimony addresses the ultimate issue of criminal intent, however, nor does it improperly usurp the jury's role. The jury could accept Dietz's testimony in toto and still conclude that Valle had criminal intent - - i.e ., that he agreed with another individual to kidnap a female victim.

U.S. v. Valle, supra. 

He also explained that Dietz will not

opine as to Valle's mental capacity or whether he had criminal intent. The possibility that the jury may infer from Dietz's testimony that Valle did not intend to kidnap anyone -- and that his chats were mere sexual fantasy -- does not require exclusion of Dr. Dietz's testimony, of course. See U.S. v. DiDomenico, supra. (`Clearly, Rule 704(b) does not prohibit all expert testimony that gives rise to an inference concerning a defendant's mental state’) (citing U.S. v. Richard, 969 F.2d 849 (U.S. Court of Appeals for the 10th Circuit 1992) (`[Rule 704(b)] does not prevent the expert from testifying to facts or opinions from which the jury could conclude or infer the defendant had the requisite mental state.’); see also U.S. v. Dunn, 846 F.2d 761 (U.S. Court ofAppeals for the D.C. Circuit 1988) (`It is only as to the last step in the inferential process -- a conclusion as to the defendant's actual mental state -- that Rule 704(b) commands the expert to be silent.’)

U.S. v. Valle, supra. 

The judge therefore denied the prosecution’s motion in limine.  U.S. v. Valle, supra.  So, I assume Dr. Dietz will be testifying

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