Facts
- Timothy D. Nelson was convicted by a jury of criminal obscenity under Illinois law and was sentenced to 45 days’ incarceration and a $1,000 fine.
- To contest the State’s claim that the charged materials were obscene under contemporary community standards, Nelson sought to introduce a statewide public-opinion survey and testimony from the survey’s author, Dr. Roderick Bell (a sociologist).
- Dr. Bell conducted a 1978 Illinois survey in which 770 Illinois residents were interviewed.
- The survey asked whether it was acceptable for adults to view or purchase depictions of actual or simulated sexual conduct in media such as magazines and movies, assuming access was limited to adults.
- The survey results reflected that, depending on the question, approximately 48% to 67.4% of respondents said such depictions were acceptable when restricted to adults.
- Dr. Bell also proposed to explain his methodology and to offer his interpretation of the results: he used a 75% agreement threshold to define a “consensus,” and because none of the questions reached that level, he concluded there was no statewide consensus and therefore no fixed Illinois community standard on acceptability for the surveyed materials.
- The State did not object that the survey was biased or methodologically flawed. Instead, the State argued that the survey did not establish a community standard and that Dr. Bell’s conclusions would take over the jury’s role.
- After a voir dire examination of Dr. Bell outside the jury’s presence, the trial court excluded both the survey results and Dr. Bell’s proposed analysis on the ground that the evidence would intrude on the jury’s function to determine community standards and obscenity.
- Nelson appealed, arguing the exclusion was error and harmed his defense on the element of community standards.
Issues
- Whether, in an Illinois criminal obscenity prosecution, a statewide public-opinion survey concerning the acceptability of sexually explicit materials is admissible as evidence bearing on contemporary community standards.
- Whether the trial court may exclude the defense witness’s testimony explaining and interpreting the survey on the ground that it invades the jury’s role.
- Whether exclusion of the survey and related testimony was prejudicial error requiring reversal and a new trial.
Decision
- The appellate court reversed Nelson’s conviction and remanded for a new trial.
- The trial court erred by excluding the survey evidence, because Illinois law permits evidence bearing on the acceptability (if any) of the subject material, and the survey was relevant to that question.
- The trial court also erred by excluding Dr. Bell’s explanatory testimony solely because it addressed community standards; the jury remained free to accept or reject the survey and any inferences drawn from it.
- The error was prejudicial because the excluded evidence went to a disputed element—contemporary community standards—and its absence materially limited Nelson’s ability to contest obscenity.
Legal Principles
- In an Illinois obscenity prosecution, evidence bearing on the degree of public acceptance or acceptability of the material may be admitted on the question of contemporary community standards.
- Public-opinion surveys, when offered to show community attitudes and not shown to be methodologically unsound or unfair, may be admissible on the community-standards element.
- Testimony explaining how a survey was conducted and what its results show may be admitted to help the jury evaluate the survey’s weight; such testimony is not excluded merely because it bears on an ultimate factual question.
- A court may not exclude otherwise relevant community-standards evidence solely on the theory that it intrudes on the jury’s role; the jury’s role is preserved by allowing jurors to decide what weight, if any, to give the evidence.
- Excluding defense evidence directed to community standards in an obscenity case can be reversible error when it affects the defendant’s ability to contest a core element of the offense.
Conclusion
The appellate court held that the trial court wrongly kept the jury from hearing a statewide survey and the defense witness’s explanation of it, even though Illinois law allows evidence of public acceptability in obscenity cases and the State did not attack the survey’s methods; because the excluded evidence bore directly on contemporary community standards and could have affected the verdict, the conviction was reversed and the case remanded for a new trial.