Judge Leon ruled against the defense’s motion to allow expert testimony by Dr. Lawrence I. Sank, a certified sex therapist and Dr. Constance Penley, a film studies professor at UC Santa Barbara.
Stagliano's attorneys said that Stagliano should be permitted to offer expert testimony in his defense on all three prongs of the Miller test used to define obscenity.
The Miller test, as decided in the 1973 U.S. Supreme Court case Miller vs. California, has three parts: whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
The judge said that both the witnesses failed to meet the requirements of the Miller test. During Thursday's questioning session, Judge Leon indicated he was not satisfied with Dr. Penley's answer to the question, "Is all pornography art?"
When speaking about Dr. Sank's practice of showing adult films to his patients, Judge Leon said that there is no evidence of reliability of this treatment. He said there is no scientific review of his methodology.
"Just because a practice is common does not make it scientific," the judge said.
The judge said for witnesses to offer an opinion on scientific merit it must be grounded in scientific knowledge.
The judge then also ruled the prosecutor’s rebuttal witnesses were also inadmissible.
The judge’s ruling has left the defense with no witnesses to call other than the defendant himself.
After reading the opinion, Judge Leon closed the courtroom to the public for the day, leaving only the attorneys and the judge inside to question potential jurors.
It is not yet known if the defense will file an interlocutory appeal to overrule the judge’s opinion. If such an appeal is filed it could delay the start of the trial.
If the defense does not file an appeal, trial will most likely start early next week.
Court is to resume Monday at 10 a.m. to continue questioning jurors. It is also unknown whether or not those proceeding will be open to the public.
