Saturday, May 3, 2008
R & B superstar R. Kelly was dealt a serious blow in his upcoming child pornography trial after a pre-trial ruling by Judge Vincent Gaughan. As I noted in a previous post, the singer will soon go to trial to face 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. During closed pre-trial hearings, the prosecutors moved to present testimony at trial by a woman who allegedly will claim that she had a three-way sexual encounter with Kelly and the allegedly underage girl shown in the video. After hearing arguments from both sides, Gaughan ruled in favor of the prosecution and said testimony about the three-way would be admissible at trial.
While I don't have access to a transcript of the arguments because the hearings were closed, the ruling appears correct based upon one of two theories. First, while evidence of prior bad acts is inadmissible to prove that a person has a propensity to act in a certain manner and that the person thus acted in conformity with that manner at the time of the alleged crime, evidence of prior bad acts is admissible for other purposes, such as proving identity. See, e.g., People v. Contreras, 615 N.E.2d 1261 (Ill. App. 2 Dist. 1993). Thus, for instance, in Contreras, the Appellate Court of Illinois found that evidence that a defendant committed an incident of burglary and rape of certain victims was relevant and admissible to prove the identity of the defendant as the offender in earlier incident involving the same victims. See id. Similarly, in the R. Kelly case, probably the biggest issue is whether R. Kelly is actually the man in the video. The fact that R. Kelly allegedly previously had sexual relations with the same girl allegedly in the video helps to prove his identity as the man in the video, making testimony about the prior sexual relations admissible.
The second possible theory is that the evidence is admissible under 725 ILCS/115-7.3, which provides that defendants accused of crimes such as predatory criminal sexual assault of a child, aggravated criminal sexual assault, and criminal sexual assault can have evidence of the commission of similar acts introduced against them. Now the question is whether 725 ILCS/115-7.3 applies to defendants accused of crimes of child pornography, but I have found no cases applying it to such cases (or finding that it doesn't apply to such cases). I would guess that a court would find that 725 ILCS/115-7.3 does apply to child pornography cases, but based about the "identity" theory of admissibility mentioned above, Judge Gaughan likely didn't need to resolve this issue.