Commonwealth v. Trainor

Neil Trainor and New England News (defendants) were found guilty of possessing obscene material with intent to distribute it. Trainor and New England News appealed, asserting that the trial judge’s exclusion of a survey of public opinion was erroneous. Trainor and New England News had made an offer of proof regarding the survey. For the survey, 100 male and 100 female adult residents from all areas of Boston were interviewed by trained personnel. Survey participants were solicited via telephone calls in the evenings and offered $10 to sit for an in-person interview downtown. Trainor and New England News had planned to have an expert witness testify regarding a six-to-10 percent margin of error. The survey questions asked interviewees about their willingness to allow movies and magazines to depict a variety of human sexual conduct in locations ranging from residential neighborhoods to clearly marked places in adult-entertainment areas that did not serve minors. The results showed that interviewees were more willing to allow the depictions as the place where the sexual content would be viewed or sold shifted from residential neighborhoods to clearly marked places in adult-entertainment areas that did not serve minors. Generally, males showed a greater willingness to permit the sale or viewing of sexual material than females. However, the offer of proof did not state that the persons to be interviewed were selected in a manner that would ensure that the sample was representative of all Bostonians. Additionally, the offer of proof lacked an indication that the survey participants’ willingness or unwillingness to permit the viewing or sale of sexually explicit material was relevant to some material issue in present case.