EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, May 3, 2008

Age Ain't Nothing But A Number, Take 2: Judge Allows Testimony About Three-Way in R. Kelly Trial

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.



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Tracked on May 6, 2008 7:57:24 PM


But how is this prior act probative of identity on anything other than a propensity theory? That is, how do you explain the prior act's relevance without saying "since defendant had sex with this woman once before, it is more likely that he had sex with her again, this time on tape"? Contreras admitted the evidence of the prior act on the theory that the crimes shared certain characteristics representing the MO of a certain criminal such that it was likely that the criminal who committed the first crime committed the second (I won't comment on the merits of this holding). Is the State in R Kelly's case making a similar argument? I think courts are far too solicitous of prosecutors asserting that a certain act "goes to identity."

Posted by: Curious | May 5, 2008 11:45:40 AM

That's a good point, and it's tough to say conclusively based upon the closed nature of the hearings. My guess would be that R. Kelly's argument is that he never met the alleged victim, making the prior act relevant to prove identity. But you are certainly right that this merely could be propensity/conformity evidence masquerading as identity evidence if the facts were different.

Posted by: Colin Miller | May 5, 2008 6:17:01 PM

If R. Kelly's argument is that he's never met the alleged victim, and we think the court didn't admit the evidence under the statute, then the evidence can come in, but not, I don't think, to prove he committed the acts on tape. If it is admissible at all, it's only then to prove the proposition that he's met the victim and / or for its impeachment value.

Maybe the court based its ruling on the statute, which wouldn't seem clearly wrong.

Or maybe the court admitted the prior act to prove motive. The theory there being that most men don't enjoy having sex with young children, but the prior act (if R. Kelly committed it) demonstrates that R. Kelly does, so the prior act is probative of motive. (This, I think, is the theory motivating statues like the one at issue here.)

Posted by: Curious | May 6, 2008 4:24:23 AM

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