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Univ. of South Carolina School of Law

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Friday, July 11, 2008

Forfeit Victory, Take 10: Illinois Forfeiture Bill Unlikely To Have Impact On Stacy Peterson Case In Light Of Giles Opinion

The headline of a Chicago Tribune story posted late last night boldly proclaims, "Stacy Peterson allies buoyed by bill on hearsay testimony." The problem is that I don't think that the new bill helps them in any way in light of the Supreme Court's recent ruling in Giles v. California. Let's jump right to the text of the bill, Senate Bill 2718, which states:

Be it enacted by the People of the State of Illinois, represented by the General Assembly:

Section 5. The Code of Criminal Procedure of 1963 is amended by adding Section 115-10.6 as follows:

(725 ILCS 5/115-10.6 new)

Sec. 115-10.6. Hearsay exception regarding forfeiture by wrongdoing.

(a) A statement is not rendered inadmissible by the hearsay rule if it is offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

(b) While intent to procure the unavailability of the witness is a necessary element for the introduction of the statement, it need not be the sole motivation behind the wrongdoing.

(c) The wrongdoing need not be based on conduct that can constitute a criminal offense. If the wrongdoing is based on conduct that constitutes a criminal offense, the conduct need not be the basis of the offense that is the subject of the trial at which the statement is being offered. If the wrongdoing is based on conduct that constitutes a criminal offense that is not the subject of the trial at which the

(d) The proponent of the statement shall give the adverse party reasonable written notice of its intention to offer the statement and the substance of the particulars of the statement. For purposes of this Section, identifying the location of the statement or statements in tendered discovery shall be sufficient to satisfy the substance of the particulars of the statement.

(e) The admissibility of the statement shall be determined by the court at a hearing outside of the presence of a jury. At the hearing, the proponent of the statement bears the burden of proving the wrongdoing by a preponderance of the evidence.

In other words, Senate Bill 2718 would create in Illinois a "forfeiture by wrongdoing" exception to the rule against hearsay which is similar to Federal Rule of Evidence 804(b)(6), which allows for the admission of "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness."

According to the Trib article, "friends and family of missing Bolingbrook woman Stacy Peterson rejoiced after state lawmakers Thursday sent to the governor's desk legislation that could affect the possible prosecution of the chief suspect in her disappearance, her husband, Drew. 'It's a good Stacy day today,' said her close friend Sharon Bychowski. 'Now Stacy's life has more meaning than it did.'" That same article notes that critics of the proposed legislation claim that it runs counter to criminal defendant's 6th Amendment right to confront witnesses against them, as recently interpreted by the Supreme Court in Giles v. California. So, what's it all about Alfie?

Well, it seems clear to me that the proposed legislation doesn't implicate the 6th Amendment but that it also isn't the panacea Stacy's Peterson's allies hope it will be. As I have previously noted, the Supreme Court in Giles found that the common law "forfeiture by wrongdoing" doctrine, which is either broader than or coextensive with the Rules-based "forfeiture by wrongdoing" doctrine, requires a specific intent on the part of a criminal defendant to render a prospective witness unavailable to testify against him at trial. In other words, the doctrine applies in the witness tampering situation where a defendant charged with murdering his wife kills a witness who planned to testify against him, but it would not apply to statements made by the wife herself in the husband's trial for her murder.

And, unfortunately for Stacy Peterson's allies, they would be trying to introduce Stacy's own statements against Drew at a potential trial, which would be an impermissible use of the "forfeiture by wrongdoing" doctrine pursuant to both Giles v. California and the wording of Senate Bill 2718. So, is there any support for Stacy's supporters?

Well, as I also noted in a previous post, some commentators have looked at language from Giles v. California and concluded that courts could use it to apply the "forfeiture by wrongdoing" doctrine in domestic abuse cases, so that, for instance, if there is proof of an abusive relationship that ends in murder, that might support a finding that the crime represented an intent "to isolate the victim and to stop her" from reporting the abuse or cooperating with a criminal investigation. As I noted in that post, however, I think that the opinions in Giles v. California make clear that "evidence of ongoing criminal proceedings at which the victim would have been expected to testify" appears to be the sine qua non for application of the forfeiture by wrongdoing doctrine in this type of domestic violence case. And because there were no such ongoing proceedings in the Peterson saga at the time of her alleged murder, Senate Bill 2718 would seem inapplicable.

-CM

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Comments

I think the peterson allies were rejoicing about the Kathleen Savio prosecution, as Stacy may have been killed when she threatened to go to police with her husbands' actions of the night Kathleen died; and that she was divorcing him. Stacy was the witness (and then a victim). Also Kathleen had written many letters to the Ill SA that would then be allowed.

Posted by: lizanne | Aug 11, 2008 9:25:55 AM

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