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'Highly Probative' Sexpert Questioning Doesn't Warrant Mistrial

By Robyn Hagan Cain on December 12, 2012 | Last updated on March 21, 2019

There's really no nice way to say this: Ted Grauer's expert witness got pwned on cross-examination.

Grauer was on trial for attempted enticement of a minor to engage in illicit sexual activity after soliciting 14-year-old "Jenny" — who, in reality, was Deputy Sheriff Jessup Schroeder — for sex in the Iowa Romance chatroom.

Grauer's "human sexuality expert," Dr. James Herriot, told the court that "Internet chatrooms ... are primarily an entertainment medium where adults engage in fantasy "age-play," often "a naughty schoolgirl" and older man scenario. Herriot explained that he had reviewed the chat transcripts between Grauer and "Jenny" and they had many of the signatures of adult age-play.

That seemed legit until cross-examination, when the prosecutor drew attention to the fact that Herriot had never testified in a case in which the defendant was actually chatting with a minor in a chatroom, and he had never interviewed someone charged with meeting an actual minor in an Internet chatroom.

(Perhaps that wasn't included in his doctorate program at the Institute for the Advanced Study of Human Sexuality? Yeah, that's a real school where you can study sexology. No, it's not accredited.)

Dr. Herriot responded with the sensationalized claim that it's either rare or nonexistent for adults to solicit actual minors in chatrooms.

The prosecutor proceeded to hammer Dr. Herriot on that point, highlighting cases in Iowa that involved older men soliciting teenage girls in chatrooms and later meeting them for sex. The prosecutor was allowed to question Herriot about three such cases over Grauer's objections; the judge ruled that the fourth example was cumulative.

The jury later convicted Grauer.

On appeal, Grauer argued that this line of questioning was improper and warranted a mistrial because it argued facts not in evidence and "was clearly calculated to inflame the jury." The Eighth Circuit Court of Appeals disagreed, concluding that the prosecutor's cross-examination of Dr. Herriot was "highly probative."

The Eighth Circuit noted:

Dr. Herriot's testimony on direct examination tended to support a primary defense to the enticement charge -- that Grauer believed his Internet chats with "Jenny" were with an adult. It was relevant to establish on cross-examination that Dr. Herriot's experience was limited to cases in which defendants chatted with undercover law enforcement officers posing as minors. Rather than simply admit this fact, Dr. Herriot embellished his credibility with the remarkable assertion that a highly relevant situation that was beyond his personal experience -- adults using internet chatrooms to entice actual minors to engage in sexual activity -- was "rare or nonexistent." It was not improper for the prosecutor to impeach Dr. Herriot by asking if he was aware of actual cases ... that disproved this assertion.

Attorneys get to grill the opposition's experts. Punching holes in an expert's outlandish claims during cross-examination isn't improper; it's the mark of a skilled lawyer.

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