First Circuit Vacates Conviction After Finding Trial Court Erred in Limiting Expert Testimony: Soler

FACTS:  Expert Testimony Limited, then Soler Convicted At Trial

After a four-day trial, Soler was found guilty of attempting persuade, induce, or entice a minor to engage in criminal sexual activity. At trial, Soler sought to present testimony from an expert with a Ph.D in clinical psychology and who is a Board-certified psychologist working at John Hopkins University specializing in internet sexual behaviors.

Prior to trial, Soler proffered the expert witness would testify on tow subjects. First, the expert would testify on the psychology behind internet communication and messaging, specifically the frequency of role-play, imagination, or exaggeration in online messaging. Second, Soler wanted the doctor to testify about “the difference between a desire to actually engage in sexual activity with a minor and mere fantasy and role-playing related to sexual contact with children.”

Initially, the trial court granted the government’s request to exclude the expert’s testimony in its entirety. Soler moved for reconsideration which the district court denied. However, less than two hours later the district court amended its reconsideration order and added that it would allow the doctor’s testimony if Soler testified at trial.

When it eventually came time for the doctor to testify, the district court added another note-“[Y]ou have to remember the expert is just going to testify in general terms. He’s not going to testify - he hasn’t interviewed him - he hasn’t - he’s not going to come to a conclusion about him. He can’t talk about him.” (“Him” referring to Soler).

Soler presented his expert’s testimony, albeit limited by the district court’s instructions. The jury convicted Soler and Soler moved for judgment of acquittal and a new trial on grounds that there was insufficient evidence to support the verdict, the court erred in limiting the expert witness’s testimony, and a host of other evidence-related and prosecutorial issues. The district court denied the motion and Soler appealed to the First Circuit.

Appeal:  It was Error to Limit the Expert's Testimony

The First Circuit concluded that there was sufficient evidence at trial to support the jury’s guilty verdict. However, contrary to the government’s argument, the appellate court concluded that the district court did limit the expert witness’s testimony at trial. On the merits of the claim, the First Circuit was tasked with determining whether the district court was correct in barring the doctor from testifying about whether Soler’s actions fit the profile of a sexual predator. The district court relied on Rule 704(b) and 403 of the Federal Rules of Evidence to bar such testimony.

Beginning with Rule 704(b), the rule provides “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,” since “[t]hose matters are for the trier of fact alone.” The appellate court found that the doctor’s testimony would have compared the circumstances of the case to the patterns of online predators and identify inconsistencies, and that testimony would not have violated Rule 704(b). As the First Circuit noted, other courts have made similar rulings-only for government-offered expert witnesses. As such, the First Circuit held the district court abused its discretion in precluding the witness testimony under 704(b).

Turning to Rule 403, which allows a court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury . . . .” In its order limiting the testimony, the district court concluded that the probative value of the doctor’s proffered testimony would substantially outweigh by confusion Soler’s state of mind. However, the First Circuit disagreed and found that the district court erred in determining both the probative value of the evidence was substantially outweighed by a risk of confusing or misleading the jury.

Rule 403 requires a balancing test to determine whether the testimony should be excluded. The First Circuit found that the district court’s erroneous analysis of whether the expert would opine on an ultimate issue of the case unfairly tipped the scales. Finding the district court’s analysis to be flawed, the First Circuit held that the court abused its discretion in excluding the expert witness testimony under Rule 403, too.

Finally, the court addressed whether the district court’s error in limiting the expert witness testimony was harmless. Typically, non-constitutional errors in admitting or excluding evidence are harmless unless the evidence had a likely effect on the outcome of the trial. Here, the First Circuit held that, although there was substantial evidence from which the jury could conclude Soler’s guilt, Soler’s role-play defense turned almost exclusively on the credibility of his testimony. The expert witness testimony could have provided substantial support to Soler’s credibility. Since it is an open question whether the jury’s credibility determination would have been swayed by the testimony, the First Circuit concluded that the error was not harmless.

Finding that the district court abused its discretion in limiting Soler’s expert witness’s testimony, and that the error was not harmless, the First circuit vacated the district court’s judgment of conviction and remanded for a new trial.