R. Kelly: Alleged Herpes Evidence Fails Expert Witness Test
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R. Kelly Wants Witness Testimony About His Alleged Herpes Status Tossed Because the Women Are Not Medical Experts

R. Kelly wearing sunglasses

A Wednesday court filing by disgraced R&B singer Robert “R.” Kelly calls into question the empirical heft of proposed witness testimony related to allegations that he intentionally spread the human alphaherpesvirus, also known as herpes simplex, to several victims.

Prosecutors claim that six Jane Doe witnesses have evidence that can help establish a timeline of when Kelly contracted the incurable, but treatable, sexually transmitted infection–as well as when he knew about his status. The defense says that this evidence should be nowhere near a court room because, they argue, it’s unscientific.

“The Government seeks to enter Jane Doe #11’s testimony ‘to prove that the defendant, in fact, had herpes as early as 2003,'” a three-page defense letter to exclude notes.

“The government plans to do so by introducing ‘statements’ by Jane Doe #11 that after she asked [Mr. Kelly] whether he had any sexually transmitted diseases (STDs), that she thereafter contracted herpes and ‘she told the defendant she believed she got it from him.’ The government is attempting to back door evidence of whether or not Mr. Kelly did in fact have herpes by relying on a lay witness’s opinion.”

The defense notes that relying on non-expert witnesses to establish a person’s medical status or history is in violation of two separate federal rules of evidence governing the admissibility of opinions that have to do with “scientific, technical, or other specialized knowledge.”

Under Rule 701 of the Federal Rules of Evidence, lay witnesses are only allowed to offer opinion testimony that is “rationally based on the witness’s perception” and “helpful to clearly understanding the witness’s testimony or to determining a fact in issue.”

Under Rule 702, such expert witnesses have to be qualified “as an expert by knowledge, skill, experience, training, or education” to offer opinions based on “the expert’s scientific, technical, or other specialized knowledge” and, additionally, such opinions must be “based on sufficient facts or data.”

“[T]he government seeks to support the fact that Jane Doe #4 claims to have contracted herpes from Mr. Kelly in 2009 because Mr. Kelly already had herpes in 2003, based on Jane Doe # 11’s testimony,” the defense letter notes. “By allowing such testimony in, by a lay person, as proof that Mr. Kelly had herpes in 2003, would be to circumvent the requirement of having an expert testify as to whether or not Mr. Kelly had herpes.”

Kelly’s attorneys go on to argue that the government’s logical implication here–based on the statements of various witnesses who allege they contracted herpes from the defendant several years apart–are little more than an effort to evade the qualifications and other mandatory guidelines outlined in Rule 702 “through the simple expedient of proffering an expert in lay witness clothing.”

“Jane # 11’s testimony should not be admitted at trial,” they conclude.

As Law&Crime previously reported, Kelly moved to dismiss the charges related to his alleged herpes status earlier this week by arguing that the relevant public health law under which he is charged does not apply to the STI in question and was, instead, limited “to an acute, bacterial venereal disease such as syphilis or gonorrhea,” with the italicized words in the original brief.

“To allow the government to move forward with those counts would be to allow a clear mischaracterization and interpretation of the application of the statute, considering the statute clearly does not incorporate herpes,” defense attorney Thomas A. Farinella wrote in a Monday court filing.

A separate section of the latest defense letter argues that evidence related to another “Jane Doe #12” should not be admitted in court because the woman in question is dead.

Farinella also bristled at attempts by the prosecution to let the jury know that the singer entered into settlement agreements:

The government seeks to admit evidence regarding certain settlement agreements to use the fact that Mr. Kelly settled cases as proof of the supposed enterprises’ means and methods which is a pure perversion of the law and the exact purpose for which rule 408 exists. The fact that Mr. Kelly entered into certain settlements with Jane Joe #11 and Jane # 12 undermines the reality that they chose to enter into the settlement, it ignores that they were represented by counsel, and presumably, their lawyers advised them of the consequences of signing the agreements.

Under Rule 408, compromise offers and negotiations are precluded from being introduced as evidence “either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction” but occasionally can be allowed in order to prove “an effort to obstruct a criminal investigation or prosecution.”

Read the letter below:

[image via via Scott Olson/Getty Images]

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