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Univ. of South Carolina School of Law

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Wednesday, June 4, 2008

Age Ain't Nothing But A Number, Take 4: Impeachment of Prosecution Witness Through Prior Consistent Statements Allowed In R. Kelly Trial

The R. Kelly child pornography case continues to be the source of numerous interesting evidentiary rulings.  The latest relates to the testimony of the final prosecution witness:  Lisa Van Allen.  Like 14 previous prosecution witnesses, Van Allen identified Kelly and his then-minor goddaughter as the participants in the 27 minute-video.  She further testified that the Grammy Award winner made a similar sex tape with herself and the alleged victim in late 1998. Van Allen testified that this video, which she said was filmed in the same location as the one at the center of the trial, could not be entered into evidence because she sold it to the singer's business manager for $20,000 last year.

This testimony, of course, is extremely damaging to R. Kelly's defense, but shortly before Van Allen's testimony, Kelly's team was able to get a favorable ruling from Judge Vincent Gaughan, which will allow them to impeach Van Allen's testimony through a surprise witness:  Van Allen's ex-beau Damon Pryor.  According to defense counsel, Pryor will testify that Van Allen told him that the video at the center of the case is a fake created by two gentlemen from Kansas City named Chuck and Keith as a scheme to extort money from Kelly.  The prosecution objected that testimony concerning Van Allen's alleged statements would constitute hearsay, but Judge Gaughan overruled the objection.  Why?

Well, Van Allen testified that she never told Pryor that the video was a fake and denied knowing that two men called "Chuck and Keith" had staged the tape at the center of the case to get money from Kelly.  Thus, her alleged prior statements to Pryor are admissible as prior inconsistent statements. See, e.g., People v. Newbill, 873 N.E.2d 408, 416 (Ill.App. 4 Dist. 2007).  Now, what's important to note is that Van Allen's alleged prior statements to Pryor are only admissible to impeach her testimony, i.e., to show that the jury that it has reason to doubt her veracity; they are not admissible to prove that the video is in fact a fake or that it was made by "Chuck and Keith" as part of an extortion scheme.  Under Illinois Law (Section 115-10.1 of the Illinois Code of Criminal Procedure), the only way that Van Allen's alleged prior statements to Pryor would have been admissible as prior inconsistent statements to prove the truth of the matter asserted in those statements would have been if Van Allen made those prior statements "under oath at a trial, hearing, or other proceeding."

So, Pryor's testimony will not be as damaging to the prosecution's case as it might have appeared.  Also militating against potential damage to the prosecutin's case is that fact that defense lawyer Sam Adams Jr. has already stipulated that Pryor is a "con man."

-CM

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