## Facts

- Federal prosecutors charged defendants connected to adult bookstores with offenses including RICO predicates based on interstate sales of allegedly obscene magazines and videos.
- The obscenity-related counts required the factfinder to apply the three-part test for obscenity under *Miller v. California* (appeal to prurient interest under contemporary community standards; patently offensive depiction of specified sexual conduct; lack of serious value).
- During trial, defendants sought to introduce public opinion polls and surveys concerning sexually explicit materials and obscenity to show community acceptance.
- Defendants also proffered expert testimony on community attitudes and on whether the charged magazines and videos were “obscene.”
- A defense sociologist (Dr. Joseph Scott) conducted a short “ethnographic study” of the Alexandria-area community by visiting numerous bookstores and video stores, speaking informally with employees and customers, and reviewing letters to editors; he did not show or discuss the specific charged works, produced no written report, and proposed to opine that sexually explicit materials were broadly acceptable in the community.
- The court reviewed the proffers, survey instruments, and methodology, and ruled on admissibility under the Federal Rules of Evidence.

## Issues

1. Whether public opinion polls and surveys are admissible to prove “contemporary community standards” or obscenity under the *Miller* framework.
2. Whether expert testimony (including Dr. Scott’s ethnographic study) is admissible under Rules 401–403 and 702 to assist the jury on community standards or obscenity.
3. Whether experts may offer opinions that effectively resolve the ultimate legal question of obscenity for the jury.

## Decision

- The court excluded the proffered public opinion polls and surveys.
- The court excluded Dr. Scott’s ethnographic testimony and other proposed expert opinions on community standards and obscenity.
- The court ruled that the jury would determine obscenity by viewing the charged works and applying the *Miller* test as instructed, without being guided by polls or experts purporting to measure community standards.

## Legal Principles

- In obscenity prosecutions, the trier of fact applies “contemporary community standards” under *Miller*; the court may exclude evidence that tends to substitute measured or asserted community attitudes for the jury’s judgment.
- Polls and surveys offered to prove community standards may be excluded where they are not tied to the specific charged works, do not adequately represent the relevant community, or create a substantial risk of confusing or misleading the jury (Rules 401–403).
- Expert testimony on community standards or obscenity may be excluded under Rule 702 when the methodology is insufficiently reliable or when the testimony is not fit to the *Miller* questions because it does not evaluate community reaction to the specific works at issue.
- Although Rule 704 does not categorically bar ultimate-issue testimony, courts may exclude expert opinions that effectively direct the verdict on obscenity or otherwise intrude on the jury’s role in making the normative *Miller* determinations.

## Conclusion

The court held that defendants could not use generalized polls, surveys, or social-science expert testimony to establish community standards or non-obscenity where the evidence was not grounded in the specific charged materials and posed a substantial risk of misleading the jury, leaving the obscenity determination to the jury’s own application of the *Miller* test.


United States v. Pryba, 678 F. Supp. 1225 (E.D. Va. 1988)