The Colorado Court of Appeals relied on a New Yorker cartoon to illustrate the issue it confronted in People v. Battigalli-Ansell. The cartoon features a dog at a keyboard telling another dog, “on the internet, no one knows you’re a dog.”

The internet site Omegle is essentially a chat room. The site connects users randomly and encourages them to engage in anonymous conversation. Users probably won’t chat with a dog, but they might be connected to someone who has created a false persona. The site encourages users to “have fun” and does not require them to disclose their true identity.

David Battigalli-Ansell began chatting with a user who identified herself as “Brooke.” Brooke claimed to be a fourteen-year-old girl. Omegle does not require users to be adults, so it was possible that the user was telling the truth. Battigalli-Ansell is an adult.

Battigalli-Asell and Brooke exchanged sexually suggestive messages. Brooke then sent Battigalli-Asell her telephone number. To confirm that the person to whom he was chatting was actually a female and not a male engaged in role playing, Battigalli-Ansell texted the number and asked Brooke to send him a picture. In response, he received a picture of an 18-year-old woman. Battigalli-Ansell then sent Brooke a picture of his penis.

A Colorado statute makes it illegal to invite, by means of a computer network, “a person whom the actor knows or believes to be under fifteen years of age and at least four years younger than the actor, to . . . observe the actor’s intimate parts.” Battigalli-Asell was charged with violating that law.

At trial, Battigalli-Ansell testified that he assumed Brooke was a role-playing adult. If he actually made that assumption, he was correct. “Brooke” was a part played by an adult male law enforcement officer. The picture that “Brooke” sent Battigalli-Ansell was a picture of an adult intern. At no time did Battigalli-Ansell communicate with a 14-year-old.

The statute, however, makes it unlawful to send an intimate picture by text or internet message if the sender “believes” the recipient to be under the age of 15. The prosecution contended, and the jury agreed, that Battigalli-Ansell believed Brooke was a 14-year-old girl based on the law enforcement officer’s false representations about his true identity.

Exclusion of Expert Testimony

The question of what Battigalli-Ansell believed is difficult to answer. Nobody can read minds. The jury knew that Battigalli-Ansell was told that Brooke was 14, but it also knew that Battigalli-Ansell received a photo of an 18-year-old that purported to be a photo of Brooke. It is not beyond the realm of possibility that Battigalli-Ansell believed he was talking to an adult female who was playing the role of a 14-year-old girl.

To bolster his defense, Battigalli-Ansell retained an expert witness. Marty Klein, a licensed marriage and family therapist and certified sex therapist, proposed to testify that:

• scientific studies establish that fantasy role playing is a normal part of human sexual interaction;
• millions of adults play erotic games centered around age play;
• fantasy age play does not necessarily indicate a desire to have sex with actual minors or to repeat role-playing behaviors outside the realm of fantasy;
• transcripts of the chats in which Battigalli-Ansell engaged with “Brooke” are consistent with fantasy age play by an individual who has no desire to move the fantasy behaviors to reality; and
• “the normalcy of sexual fantasies is not well understood in the general population and . . . often intimate partners fail to recognize and accept, without therapeutic help, the benign nature and normalcy of such fantasies in their partners.”

The trial court agreed that Klein could explain the nature of fantasy role playing in the context of a chat room. The court also allowed Klein to give “brief testimony that sexual fantasies about adult and adolescent sex partners are common and are not abnormal,” but did not permit more extensive testimony on the ground that it would be “a needless waste of time, might create confusion and would not be helpful to the jury.”

In particular, the judge excluded the testimony summarized in the bullet points above. However, when the prosecutor asked Klein on cross-examination whether people “fantasize about having sex with children,” the question opened the door to additional testimony. The court allowed Klein to testify on redirect that people fantasize about sex with “teenagers” and that “fantasies about having sex with minors [do] not predict . . . sexual behavior with minors.”

Battigalli-Ansell was convicted. He based his appeal, in part, on the exclusion of Klein’s full opinions.

Appellate Opinion

Battigalli-Ansell argued on appeal that Klein offered additional opinions in his expert report that were improperly excluded. However, the trial judge expressly asked whether Klein would be offering opinions other than those summarized in the bullet points above. Battigalli-Ansell’s counsel said that he would not. That statement waived the right to challenge the exclusion of other opinions.

The appellate court agreed that the opinions described in the bullet points were inadmissible. The question before the jury was whether Battigalli-Ansell believed he was sending an intimate photo to a person who was 14 years old. According to the court, whether fantasy role playing is a normal part of sexual interaction, whether millions of Americans engage in age play, and whether age play is a predictor of pedophilia are not opinions that shed light on Battigalli-Ansell’s beliefs.

It is true that pedophilia was not an issue in the case. Pedophilia is, by definition, a condition that describes an attraction to prepubescent children, not to 14-year-olds.

In any event, it is unlawful in Colorado to send an intimate picture to a 14-year-old, whether or not the sender is a pedophile. Whether Battigalli-Ansell actually wanted to have sex with the recipient of the photo was not relevant. Sending the photo to someone whom the sender believes to be a minor (even if the belief is mistaken) is unlawful regardless of the sender’s desire to have contact with the recipient.

On the other hand, the normalcy of age play does tend to make Battigalli-Ansell’s position easier to understand. A jury that does not know that age play is widespread might conclude that “nobody would do that.” Evidence that millions of people do, in fact, play fantasy games is relevant because it would tend to make the jury understand that Battigalli-Ansell might be part of that very large group.

Improper Comment Upon Credibility

Klein’s key opinion was that transcripts of the chat were “consistent” with fantasy age-play. The appellate court noted that prosecution experts in child sexual assault cases often testify that an allegedly abused child’s behavior (such as failing to report abuse) is consistent with the behavior of child abuse victims. Klein’s opinion that the chat was consistent with behavior observed by fantasy role players was arguably admissible on the theory that experts are generally allowed to educate jurors about common behaviors of individuals that are outside the ordinary experience of most jurors.

The court nevertheless observed that prosecution experts cannot give opinions about perceived behaviors of child abuse victims that tend to bolster the alleged victim’s credibility. Courts generally prohibit testimony when an expert’s testimony would suggest that the expert believes a child is telling the truth. The veracity of a witness is not a proper subject of expert testimony. The court saw no reason not to apply the same rule outside the context of sexual assault cases.

The issue that the court confronted is tricky. Testimony that a person’s behavior was consistent with behavior that is common to a particular group does not invariably suggest that the expert believes a witness is telling the truth. Police officers routinely testify that a driver’s behavior was consistent with the behavior of drunk drivers. Courts routinely admit that testimony on the theory that it assists the jury, even if it might suggest that the officer disbelieved the driver’s claim to be sober. There is no obvious reason to disallow expert testimony that signals a belief that a witness is telling the truth while allowing testimony that signals a belief that a witness is not telling the truth.

The court acknowledged that the “line between opinion testimony that improperly bolsters a witness’s credibility and admissible testimony that may only collaterally enhance the witness’s credibility is sometimes a difficult one to draw.” Experts who testify about the prevalence of delayed reporting by child sexual assault victims might be seen as bolstering the credibility of a child who delays reporting an alleged assault, but that testimony is routinely permitted. Doctors often diagnose health conditions by determining that a patient’s symptoms and behaviors are consistent with those of other patients who suffer from a particular condition. When doctors testify about a diagnosis that is based on symptoms disclosed by the patient and on consistency with other patients who have the same condition, the doctor signals a belief that the witness is telling the truth about her symptoms.

The court nevertheless concluded that Klein was bolstering Battigalli-Ansel’s testimony by stating that Battigalli-Ansel acted in conformity with the behavior of people who engage in age play. According to the court, Klein was signaling his belief that Battigalli-Ansel was telling the truth, at least in part because “Klein was not acting as a ‘cold’ expert —one who ‘knows little or nothing about the facts of the particular case, often has not even met the victim, and has not performed any forensic or psychological examination of the victim,’ and who educates the jury regarding certain general characteristics.” Klein’s testimony was accordingly inadmissible.

Lessons Learned

Courts are notoriously inconsistent in deciding whether an expert can opine that a person’s behavior was consistent with behaviors seen in members of particular groups. Battigalli-Ansel might have been better served by an expert opinion that simply avoided using the words “consistent with.” It isn’t clear whether Klein ever met Battigalli-Ansel, but establishing that he was a “cold” expert might have improved the chance of making his opinions admissible.

The court suggested that the outcome might have been different if Klein had confined his testimony to explaining “what characteristics of a dialogue generally inform his determination that the dialogue is ‘consistent with’ role-playing, as opposed to opining on the nature of the specific communications between Battigalli-Ansell and ‘Brooke’.” Unfortunately, the opinion does not make clear whether the trial judge gave Battigalli-Ansell the option to introduce more limited testimony. Had the trial judge parsed the testimony as carefully as the appellate court, Klein might have been able to give the limited testimony that the appellate court thought would be proper.

It is always perilous for experts to testify that the behavior of one person is “consistent with” the behavior of a group of persons. Unless precedent clearly establishes that such testimony is not an inadmissible comment upon credibility, experts might want to couch their opinions in terms that avoid making such comparisons.