Monday, November 5, 2007
It seems as if the R. Kelly child pornography case has been going on forever, and on Friday it produced three more interesting evidentiary issues. The R & B singer faces charges stemming from allegedly taping himself having sex with a girl who may have been as young as 13 years-old at the time of the act.
A significant obstacle faced by the Illinois prosecutors is that the girl they claim is in the video, who is now in her early 20s, claims and has provided grand jury testimony that she is not the girl in the tape. Prosecutors sought to rebut this denial through the testimony of Sharon Cooper, a developmental and forensic pediatrician, who was to testify that the girl's denial is behavior typical of victims of child pornography.
Now, if the allegd victim claimed that she was the girl in the video, Cooper could have testified that her behavior and symptoms were consistent with the behavior and symptoms of sexually abused children, and she has done so in several cases. See, e.g. State v. Hess, 632 S.E.2d599 (N.C.App. 2006). The problem in this case, however, is that the alleged victim is claiming she was not in fact the victim in the video, and the judge thus found that Cooper's testimony was inadmissible because it would have constituted an improper comment on the alleged victim's grand jury testimony.
This ruling is in accord with past Illinois decisions. For instance, in People v. Simpkins, 697 N.E.2d 302 (Ill.App. 4 Dist. 1998), the defendant was charged with aggravated sexual assualt against a child, who first made and then recanted her claim that the defendant assaulted her. At trial, an investigator from the Department of Children and Family Services testified that child victims of sexual abuse commonly recant their initial allegations of sexual abuse. See id. at 1242.
On appeal, the Illinois appellate court reversed, finding that this expert testimony was improper because it went to the credibility of the alleged victim and improperly and severly impinged upon the jury's function in determining the credibility of witnesses. See id. This finding is consistent with precedent across the country holding that determining the credibility of witnesses is the province of the jury, not expert witnesses.
In the R. Kelly case, the judge did, however, rule that Cooper could testify about the approximate age of the girl in the tape, which, again, is consistent with Illinois precedent. See People v. Normand, 831 N.E.2d 587, 594 (Ill. 2005). Presumably, Cooper will use the Tanner scale in making her age assessment. See id.
Finally, prosecutors sought to have Cooper provide testimony in which she would compare the vein pattern of Kelly's hand with the hand of the man in the video. The judge ordered a Frye hearing to determine whether the "vein pattern comparison" test to be used by Cooper has general acceptance in the scientific community.
In a quick Westlaw search, I found no cases where experts did a "vein pattern comparison," but in a quick internet search, I found a site claiming that vein pattern recognition technology is gaining momentum as one of the fastest-growing technologies. Apparently, the technology has found "easy acceptance" in parts of Asia, where there is strong resistance in fingerprinting. In fact, some sources are claiming that vein recognition technology has an advantage over fingerprint systems because vein patterns are biometric characteristics that are not left behind unintentionally in every-day activities.
It will be fascinating to see how the Illinois judge resolves this issue under the Frye test, although I doubt that the vein pattern comparison test has the required general acceptance in the scientific community (Illinois is also considering the admissibility of the Horizontal Gaze Nystagmus (HGN) test under Frye). Based upon my brief research, however, I think that the vein pattern comparison might fare better under the Daubert test followed by federal courts and many state courts.