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Obscenity Stuart Anderson. People v. Nelson Nelson is employee of adult book store which shows films of sexual acts Nelson is charged with criminal obscenity.

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Presentation on theme: "Obscenity Stuart Anderson. People v. Nelson Nelson is employee of adult book store which shows films of sexual acts Nelson is charged with criminal obscenity."— Presentation transcript:

1 Obscenity Stuart Anderson

2 People v. Nelson Nelson is employee of adult book store which shows films of sexual acts Nelson is charged with criminal obscenity under Illinois Law

3 Criminal Obscenity Criminal obscenity, here, exhibiting obscene films Movie is obscene if: (1) the average person, applying contemporary adult community standards, would find that it appeals to the prurient interest; and (2) depicts or describes, in a patently offensive way sexual acts or sadomasochistic sexual acts; and (3) it lacks serious literary, artistic, political or scientific value. (c) Interpretation of Evidence. Evidence shall be admissible to show: (4) The degree, if any, of public acceptance of the material in this State; (5) Appeal to prurient interest, or absence thereof, in advertising or other promotion of the material The State has the burden of proving obscenity, but is not required to produce any evidence of community standards.

4 Nelson sought to enter a survey by Dr. Bell to show that a majority of Illinoisans found depictions of sexual activity acceptable Dr. Bell’s expert testimony: there was no community standard concerning the depiction of sexual activity in certain circumstances Prosecutor objected to the expert testimony, since Dr. Bell’s analysis of the inconclusive survey is an invasion of the jury’s fact-finding province (?)

5 The Trial Court The survey evidence and the expert analysis would invade the jury’s province. The Appellate Court Exclusion was an error (1)Validity: There were no attacks on the methodology or partiality (2)Relevance: It is relevant directly, under the statutes allowed evidence (c)(4). The evidence isn’t dispositive because it didn’t show the movies in question, but it is relevant to whether the majority of Illinoisans find sexually explicit films acceptable. The error was prejudicial because it is a strong case for the defendant. the admissible evidence only testified to what else was available in other bookstores, whereas the survey demonstrates grades of acceptability. The exclusion of the talk of “consensus” is proper because it is a social science concept which may be foreign to the jury, it is distracting, and the results are clear enough for the jury to interpret themselves.

6 The Survey Purpose of the survey: to find the community standards in Illinois relating to obscenity for the defense law firm, not for the particular trial. Target: Adults in Illinois Sample: 770 people chosen randomly, out of 77 areas of roughly equal population. Reliability: 99% repeatable within a confidence interval 3.5% Method: Interviewers conducted the interview with questionnaires (independently verified). Dr. Bell’s Professional opinion: 75% of the population have to agree on a proposition for it to be a “consensus.” Without a consensus as to whether these depictions are acceptable, there is no “community standard.”

7 QUESTION : Is it your opinion that in recent years the standards in Illinois have changed so that depictions of nudity and sexual activities in movies and publications available only to adults are now more acceptable or less acceptable? More acceptable 60.5%; less acceptable 25.7%; neither 7.8%; don't know 4.4%; no answer 1.3%; other.2%. QUESTION : Do you think it is acceptable or not acceptable in Illinois for the average adult to see any depiction of actual or pretended sexual activities shown in movies and publications that he or she wants to? Acceptable 58.1%; not acceptable 33.2%; neither 5.2%; no answer 3.5%. GENERAL QUESTION In your opinion, is it now all right or not all right in the State of Illinois for: QUESTION : Adults who want to view them, to purchase magazines that depict nudity and actual or pretended sexual activities? All right 63.1%; not all right 31.0%; neither 2.2%; no answer 3.6%.

8 QUESTION : Movie theaters, restricting attendance to adults only, to show films that depict nudity and actual or pretended sexual activities for adults who want to attend? All right 59.2%; not all right 32.1%; neither 4.3%; no answer 4.4%. QUESTION : Bookstores that restrict admittance to adults only to sell publications and movies? All right 54.8%; not all right 37.3%; neither 4.0%; no QUESTION : Arcades that restrict admittance to adults only to show films? All right 48.7%; not all right 42.1%; neither 3.5%; no answer 5.7%. QUESTION : Adults who want to, in the privacy of their homes, see movies and publications? All right 67.4%; not all right 25.7%; neither 2.9%; no answer 4.0%. QUESTION : We have used the phrases "nudity" and "sexual activities" in the interview. What we mean by these terms is total male and/or female nudity, and sexual intercourse including all kinds of sexual variations. Is that what you understood we meant, or did you think we meant something else? Understood 93.4%; something else 3.0%; neither 1.8%; no answer 1.8%.

9 Usefulness of the Survey It was Methodologically valid by the court’s analysis Accepted by the court as evidence as to the community standards concerning the films: if a majority (58.1% presumably) find sexually films acceptable, then the majority does not find them “patently offensive” It’s more relevant than the investigation into the availability of similar films in other stores. It provides an alternative to 12 Rockford natives as a means of finding a state-wide standard It does not address the question of “patently offensive”— that is an inference not by the pollster

10 Validity of the Survey Dr. Bell’s own conclusion that there is no community standard Sample Population to whole: –Enough old people? How were the survey’s administered? –Who is most unlikely to take a survey like this? Test effect & Reactivity Desirability of a Control? –Not a causal analysis –Gauge value of the 58% “acceptable” finding—especially since Dr. Bell cannot testify to explain Disparity between description the mode of questioning and the subject-film itself False dichotomy of acceptable/not acceptable

11 Saliba v. State Saliba is owner of adult book store who showed a film of three males engaged in homosexual activity Saliba is charged with exhibiting an obscene film under Indiana Law

12 Obscenity in Indiana A person who exhibits obscene matter Movie is obscene if: (1) the average person, applying contemporary community standards, finds that the dominant theme of the move or performance, taken as a whole, appeals to the prurient interest in sex; (2) the movie depicts in a patently offensive way, sexual conduct; and (3) the movie lacks serious artistic, political, or scientific value. The State has the burden of proving obscenity, but is not required to produce any evidence of community standards

13 Saliba sought to enter a survey by Dr. Bell concerning the community standards in Marion county towards sexually explicit material The results of the survey were not discussed on Appeal. The survey was denied on the grounds of methodology and relevancy without a consideration of the results.

14 The Trial Court Excluded the survey: (1) it was relevant if valid “because the community determines whether or not it is a crime” (2) validity: Question #13 should have been at the beginning…after Dr. Vargus and Dr. Bell testified that he had pre-tested the survey…Question #13 should have been at the beginning, and other issues raised by Dr. Vargus The error with Question #13 was in leaving the level of sexual explicitness to the end

15 The Appellate Court Exclusion was an error Relevance 2 levels of relevance (1) Community standards in general: expert witness testimony based on a public opinion poll is “uniquely suited to a determination of community standards” danger of relying on a jury to make such a subjective judgment about the opinions of the whole community. (2) Community standards regarding the film: Q#13 (and pretests) defined nudity and sexual activity as total male and/or female nudity and sexual intercourse as including all kinds of sexual variation, it gauges the relevant attitudes Relevant, but not dispositive because the final question is the movie itself Trustworthiness (validity): methodological question (1)Generally accepted surveying technique (2) statistically correct methods This leads to six “foundations”—omission of one justifies exclusion, other objections only affect the weight of an admitted survey

16 The Survey Purpose of the survey: to find the community standards in Marion County relating to sexually explicit movies, done for the trial Target: Adults in Marion county Sample: 500 people selected by random digit dialing Reliability: 98% repeatable within a margin of error of 3% to 4% Method: Telephone survey Pretest: “extensive”

17 The foundations (1) expert pollster (2) relevant universe examined (3) representative sample (4) correct mode of questioning (5) study design generally acceptable (6) accurate report of data (7) correct statistical analysis Dr. Vargus’ critique (based on assumptions about Dr. Bell’s method) Clarity of the questions, ambiguity of the pretest Personal interviews would have been better 60% of interviewees were women 30% psuedo-Opinion (if Bell didn’t pretest) The Appellate court found Dr. Vargus’ critique merely an attack on “technical inadequacies”; both Dr. Bell and Dr. Vargus were qualified, and Dr. Bell’s method was generally accepted, if not ideal

18 6. In your opinion, have standards in Indiana changed in recent years so that depictions of nudity and sexual activities in movies and publications available only to adults are now more acceptable or less acceptable, or haven't they changed much? 7. Do you personally think it is acceptable or not acceptable for the average adult to see any depiction of actual or pretended sexual activities shown in movies and publications that he or she wants to? In your opinion, is it now all right or not all right in the state of Indiana for 8. adults who want to view them, to purchase magazines that show nudity and actual or pretended sexual activities? 9. movie theaters, restricting attendance to adults only, to show films that depict nudity and actual or pretended sexual activities for adults who want to attend? 10. bookstores that restrict admittance to adults to sell publications and movies depicting nudity and actual or pretended sexual activities for adults who want to go inside and buy them?

19 11. arcades that restrict admittance to adults only to show films that depict nudity and actual or pretended sexual activities? *12. adults who want to, in the privacy of their homes, to see movies and publications that depict nudity and actual or pretended sexual activities? 13. Finally, we have used the phrases "nudity" and "sexual activities" in the interview. What we mean by these terms is total male and/or female nudity, and sexual intercourse including all kinds of sexual variation. Is that what you understood we meant, or did you think we meant something else?

20 Problems Sample: 60% women [population of Marion county as a whole—by gender, race, religion, etc.?], phone as sample source, self-selection of respondents Questions: Abstractness of the survey, Specifically homosexual?, Telephone interview against film, lack of perspective, test effect and reactivity Science of the Court Experts as experts? Accepting Dr. Vargus’ testimony, but dismissing it not because his analysis was substantially based on assumptions but because his disagreement was technical while Dr. Bell’s methods were generally accepted—according to whom? Distinction between numbers and testimony Dissent : irrelevant because acceptable/unacceptable does not address community standards regarding prurient interest in sex and because it did not address the film in particular and because it is generally vague.


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