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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