EvidenceProf Blog

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

Sunday, September 9, 2012

Common Law, Take 2: Were The Hearsay Statements In Drew Peterson's Trial Admitted In Compliance With Giles?

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

So, as established by my previous post, at the Drew Peterson trial, the prosecution admitted statements by Drew Peterson's third and fourth wives pursuant to the common law doctrine of forfeiture by wrongdoing and not "Drew's law." Accordingly, if Peterson is going to be successful on appeal, it will be based upon the statements being inadmissible under the common law doctrine as interpreted by the Supreme Court in Giles v. California and not based upon the statements being inadmissible under "Drew's law" (and not based upon the unconstitutionality of "Drew's law"). So, is Peterson likely to be successful?

Well, let's start with People v. Peterson, 968 N.E.2d 204 (Ill.App. 3 Dist. 2012). According to the court,

The State asked the circuit court to conduct a hearing to determine the admissibility of these hearsay statements under both the statute and the common law doctrine of forfeiture by wrongdoing and sought the admission of the statements under both the statute and the common law. In January and February 2010, the circuit court held an evidentiary hearing on the State's motion. The State argued, inter alia, that the defendant killed Kathleen with the intent of preventing her testimony at the hearing on the distribution of the marital property. The State also argued that the defendant killed Stacy with the intent of preventing her testimony not only at a future divorce and property distribution hearing, but also at a trial for Kathleen's murder. Seventy-two witnesses testified at the hearing, including three pathologists. Two pathologists testified for the State that Kathleen's death was a homicide. The defense's pathologist disagreed with the State's pathologist's conclusions and testified that Kathleen had drowned accidentally.

The circuit court took the matter under advisement and issued its written ruling on May 18, 2010. Applying the statutory criteria, the court found that the State had proved by a preponderance of the evidence that: (1) the defendant murdered Kathleen and Stacy; and (2) he did so with the intent to make them unavailable as witnesses. Further, the court found that, pursuant to the statute, 6 of the 14 proffered hearsay statements contained sufficient "safeguards of reliability" and that the interests of justice would be served by the admission of those statements into evidence. However, the circuit court excluded the remaining eight hearsay statements proffered by the State because it found that those statements did not meet the statutory standard of reliability and that the interests of justice would not be served by their admission.

As noted in my prior post, the Appellate Court of Illinois reversed with regard to the eight excluded statements, finding that "Drew's law" did not in any way abrogate the common law doctrine of forfeiture by wrongdoing, which allowed for the admission of the statements without a showing of reliability. But the prosecution did still have to show that Peterson intended to render wives #3 and #4 unavailable to testify at trial. That was the holding in Giles, in which the Court held that the doctrine of forfeiture by wrongdoing only applies when the defendant caused a witness to be unavailable at trial and "intended to prevent the witness from testifying."

Now, what does this mean for the inevitable Peterson appeal? Well, the problem for Peterson is that, at the time of Kathleen's death, there was pending litigation in which Kathleen was going to testify. These were the divorce proceedings between the two, with a hearing on property distribution, pension, and support scheduled for April 2004. Kathleen died in March 2004, so the court's conclusion that Drew killed Kathleen with the intent of rendering her unavailable for that hearing seems to hold water.

But what about Stacy's statements? The two were discussing divorce, but neither had yet filed for divorce. And Drew wasn't arrested for Kathleen's death until 2009, with Stacy disappearing in 2007. So, could the court find that Drew killed Stacy with the intent of rendering her unavailable at a potential divorce trial or a potential murder trial? I discussed this issue a bit in the immediate wake of Giles (see here), and my conclusion is that a possible future trial isn't good enough to satisfy the intent requirement on the forfeiture doctrine. So, in my opinion, the admission of Stacy's statements could form a viable basis for an appeal.



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This is fascinating stuff. I see that the Illinois Appellate Court mentions Giles once, but does not analyze the admissibility of the statements under Giles. That's a bit silly. I also think the interplay of the expansive common law doctrine and the restrictive new statute is fascinating. Are we convinced that the statute does not legally supersede the doctrine?

Posted by: Gideon | Sep 9, 2012 2:13:42 PM

Colin: I see that you made a new thread regarding the matter we were discussing under your September 7 thread. I am poviding you with my follow-up here.

I do not think the forfeiture by wrongdoings doctrine is at play here at all - especially as applicable to the admission of the alleged statements Savio (3rd wife) made. Reemphasizing the point I made above, the US Supreme Court concluded in Giles that the doctrine only applies when a party makes a witness unavailable to testify in the matter for which he is currently on trial. Point Being: Peterson did not kill Savio so she would not be a witness in his murder trial.

Your point is well taken that if introduced to prove "intent" to kill her, they might be admissible (subject to concerns re: Sixth Amendment confrontation objections), but this would mean the statements are NOT hearsay (by definition), as they are being offered for some other reason than to prove the truth of the matter asserted.

I am truly confounded that Harry Smith, Stacy's divorce attorney, was allowed to testify as to what Kathy purportedly told him that Drew purportedly told her. It is classic double hearsay, and I suspect your first year law students would readily recognize it as such. I also maintain the statements cannot be justified as admissible to prove Peterson's "intent." It would be tantamount to a "reverse Hillman" and this is not allowed. Mutual Life Ins. Co. v. Hillman, 145 US 285 (1892) allows evidence of "future" intentions (only) as tending to prove the doing of the act intended.

Finally, putting aside the heasay-within-hersay nature of the Hary Smith's testimony, I reference you to Peek v. United States, 321 F.2d 934 (9th Cir. 1963), Cert. denied, 376 U.S. 954 (1964), "the marital privilege includes the prohibition against a third person relating a statement made by one spouse against the other which that spouse would not be allowed to relate if called as a witness." Is the reason to believe the Illinois appellate courts will not come to the same conclusion?

Bottom Line: There are a host of reasons why the third-party, hearsay statements should not have been allowed into evidence - violation of Sixth Amendment right to confrontation, inapplicability of forfeiture by wrongdoings doctrine to the case facts, double hearsay concerns, admission of confidential marital communications, etc.

Thanks for the dialogue. Let's see how it all plays out.


Posted by: Barry | Sep 9, 2012 2:30:03 PM

Barry, it is my belief that Giles adopted a transferred intent theory of forfeiture by wrongdoing, under which intent to render a witness unavailable at any trial transfers to a subsequent trial and makes the doctrine applicable at the subsequent trial. Here are my posts on the subject:



In Giles, this was discussed in the context of a husband killing a wife to prevent her from testifying at a domestic violence trial, with the intent transferring to the subsequent murder trial. I think that the same logic could apply to the Peterson trial, with the initial intent being to render Kathleen unavailable at the divorce hearing.

That said, when it comes to the Confrontation Clause, nobody knows anything.

Posted by: Colin Miller | Sep 9, 2012 2:41:55 PM

Colin: I don't want to monopolize your blog, but felt compelled to comment on the problems you perecive, under Giles, as to the admissibility of Stacy's (3rd wife's statements).

Quoting you directly, "Now, what does this mean for the inevitable Peterson appeal? Well, the problem for Peterson is that, at the time of Kathleen's death, there was pending litigation in which Kathleen was going to testify. These were the divorce proceedings between the two, with a hearing on property distribution, pension, and support scheduled for April 2004. Kathleen died in March 2004, so the court's conclusion that Drew killed Kathleen with the intent of rendering her unavailable for that hearing seems to hold water."

If you listen to the oral argument in Giles here: http://www.oyez.org/cases/2000-2009/2007/2007_07_6053, you will note Justice Scalia posed the question and answered it, "Is there any case you can cite that supports the notion the doctrine of forfeiture should apply in Case B, when the party meant to exclude the witness from case A?. I think not. The doctrine applies ONLY when a party makes a witness unavailable for the instant case (Case B) without reference to a previous case (Case A)." Counsel concurred.

Point Being: If Peterson killed Savio so she wouldn't testify in Case A (divorce proceedings) - although I think that conclusion as reached by the trial court is questionabale and matter for appellate review - it might not render the doctrine of forfeiture applicable in Case B (murder trial). I at least profer that Scalia doesn't think so.


Posted by: Barry | Sep 9, 2012 2:57:18 PM

Barry, no problem at all. Thanks for the link to the oral argument. I will have to check that out. If Scalia is indeed holding that, it would be contrary to the way that many courts have interpreted Rule 804(b)(6) and the common law doctrine of forfeiture by wrongdoing. Consider this language from United States v. Gray, 405 F.3d 227, 241-42 (4th Cir. 2005):

Gray contends that Rule 804(b)(6) should not apply in this case because she did not intend to procure Robert Gray's unavailability as a witness at this trial. “Because the Federal Rules of Evidence are a legislative enactment, we turn to the traditional tools of statutory construction in order to construe their provisions. We begin with the language itself.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988). The text of Rule 804(b)(6) requires only that the defendant intend to render the declarant unavailable “as a witness.” The text does not require that the declarant would otherwise be a witness at any particular trial, nor does it limit the subject matter of admissible statements to events distinct from the events at issue in the trial in which the statements are offered. Thus, we conclude that Rule 804(b)(6) applies whenever the defendant's wrongdoing was intended to, and did, render the declarant unavailable as a witness against the defendant, without regard to the nature of the charges at the trial in which the declarant's statements are offered. Accord Dhinsa, 243 F.3d at 652–53; Emery, 186 F.3d at 926; 4 C. Mueller & L. Kirkpatrick, Federal Evidence § 507.1, at 268 (2d ed. Supp.2004) (“It seems that there is no limit on the subject matter of statements that can be admitted under this exception, which means that statements in which the declarant implicates a defendant in a plot to kill the declarant himself can fit the exception.”).

Posted by: Colin Miller | Sep 9, 2012 3:13:55 PM

Colin: My only reply would be to a.) listen to the oral argument (about 1/3 of the way in) and Scalia's Q&A (brief though it is) on the subject of forfeiture in one case transferring to forfeiture in another and b.) Giles is a 2008 Supreme Court case v. Gray a 2005 (earlier) appellate court case.

To be sure, I am in no way suggesting I know the answers to the questions I am posing - just that I a spot many issues for appeal.

Does it not trouble you when the jury foreman states that "but for the hearsay evidence - in particular the testimony of Harry Smith - we might very well have aquitted Peterson?"

Hearsay, by it's very nature is unreliable (double hearsay even more so). I just hate that the guy was found guilty based on it.


Posted by: Barry | Sep 9, 2012 3:27:07 PM

This is great. I do believe I've effectively landed myself into the second bramble bush.

How applicable, if at all, is the common law doctrine to some of the statements proffered? Was the litigation: merely discussed, pending, or ongoing?

Also, Gray v. Giles is awesome to think about. I have only more questions, and little answers:
1. Regarding transferred intent, do we have examples of intent transferring from an upcoming civil matter to a criminal matter? How proximate must the criminal matter be? What if the unavailable party is the opposing party in both instances and not merely a witness, does that help? Does it matter?

2. When is a trial pending and when is it merely possible? I mean, when do we see items or facts in the news that are obviously going to be filed, but the State is merely taking their collective time to bolster a solid GJ or prelim? The defendant is aware the police or SA are sniffing around, and takes action…can that be enough? What about a married couple, every Friday night over wine they have a heated debate about divorce in front of relatives?
*How often is a defendant in a civil or criminal matter aware they are heading towards litigation? How often are they surprised ?

3. It appears strict construction and protection would seek to quash Gray's interpretation and apply a more rigid analysis like Giles. But if Giles leaves the door open for transferred intent…where are we then?

4. Funny, what this reminds me most of is the relatively new CIVIL pursuit of local villages in fighting street gangs. Local towns are suing gangs under our civil code. Now, what if an individual in the gang takes action to shush certain members in light of upcoming civil litigation?

- Matt

Posted by: Matt | Sep 10, 2012 12:01:56 PM

I take that my prior post did not reach Colin so I will try again.

I disagree that Giles adopted a transfer of intent theory because such a theory is inchoate under the circumstances of Giles. Too often the discussion about Giles gets attenuated from the facts. When someone is dead they are dead. This is the heart of the Souter/Ginsburg opinion which arguably is the controlling opinion in case. The problem with a forfeiture by wrongdoing argument in a murder case is that it assumes what it seeks to prove, wrongdoing.

No one disputes that Giles killed his partner. That alone makes Giles significantly different than the Peterson case because here is a dispute over whether a killing as opposed to a accident took place. If Giles couldn't be found guilty when there is an undisputed killing how on earth can Peterson be found guilty on the same type of testimony when there is such a dispute?

For me the Peterson case highlights the wisdom of the Ginsburg/Souter concurrence. If Giles would have lost it would have effectively reduced the prosecutor's burden of proof from beyond a reasonable doubt as found by a jury to a preponderance of evidence as found by a judge; that is the core of what Giles seeks to prevent.

Posted by: Daniel | Sep 10, 2012 3:34:22 PM


1. Consider the opinions of the Eastern District of Virginia and then the 4th Circuit in United States v. Lentz. First, in United States v. Lentz, 282 F.Supp.2d 399 (E.D.V.A. 2002), the EDVA found that statements made by a wife while divorce proceedings were not admissible under the doctrine of forfeiture by wrongdoing at the husband's trial for murdering her. In United States v. Lentz, 58 Fed.Appx. 961 (4th Cir. 2003), the Fourth Circuit disagreed, but Judge Traxler concurred in the result, finding,

Obviously, the “forfeiture by wrongdoing” exception allows for the admission of witness statements in a proceeding if the witness was murdered to prevent him or her from testifying in that same proceeding. See United States v. Johnson, 219 F.3d 349, 356 (4th Cir.2000) (holding that the district court did not abuse its discretion in admitting statements of a murder victim under Rule 804(b)(6) in defendant's trial for drug conspiracy and murder in aid of racketeering where the defendant “murdered [the witness] at least in part to procure the unavailability of the only witness to his murder of” another man). Thus, for example, if Lentz murdered his wife to prevent her from testifying in their divorce and child custody proceedings, Mrs. Lentz's statements would be admissible in a family court proceeding pertaining to their domestic issues (provided, of course, that the state has a similar state evidentiary rule). Like the district court, however, I am unwilling to extend the Rule 804(b)(6) exception to allow for the wholesale introduction of hearsay statements made by a murder victim against the defendant in the federal trial for the witness's murder simply because the parties were involved in state court litigation at the time of the alleged murder. Rather, I interpret the Rule 804(b)(6) exception as being generally limited to the introduction of hearsay statements in the proceeding at which the deceased was expected by the assailant to testify.

2. Consider United States v. Houilhan, 92 F.3d1271 (1st Cir. 1996), in which the First Circuit found that

When a defendant murders an individual who is a percipient witness to acts of criminality (or procures his demise) in order to prevent him from appearing at an upcoming trial, he denies the government the benefit of the witness's live testimony. In much the same way, when a defendant murders such a witness (or procures his demise) in order to prevent him from assisting an ongoing criminal investigation, he is denying the government the benefit of the witness's live testimony at a future trial. In short, the two situations are fair congeners: as long as it is reasonably foreseeable that the investigation will culminate in the bringing of charges, the mere fact that the homicide occurs at an earlier step in the pavane should not affect the operation of the waiver-by-misconduct doctrine. Indeed, adopting the contrary position urged by the appellants would serve as a prod to the unscrupulous to accelerate the timetable and murder suspected snitches sooner rather than later. We see no justification for creating such a perverse incentive, or for distinguishing between a defendant who assassinates a witness on the eve of trial and a potential defendant who assassinates a potential witness before charges officially have been brought. In either case, it is the intent to silence that provides notice.

3. That's definitely a big part of the question.

4. If the court applies the logic of Houlihan, I think that forfeiture would apply.

Posted by: Colin Miller | Sep 10, 2012 4:14:48 PM

Daniel, I'm not sure that I agree with your construction of the Souter/Ginsburg concurrence. Here's what I see as the relevant portion of the concurrence:

"The importance of that intent in assessing the fairness of placing the risk on the defendant is most obvious when a defendant is prosecuted for the very act that causes the witness's absence, homicide being the extreme example. If the victim's prior statement were admissible solely because the defendant kept the witness out of court by committing homicide, admissibility of the victim's statement to prove guilt would turn on finding the defendant guilty of the homicidal act causing the absence; evidence that the defendant killed would come in because the defendant probably killed. The only thing saving admissibility and liability determinations from question begging would be (in a jury case) the distinct functions of judge and jury: judges would find by a preponderance of evidence that the defendant killed (and so would admit the testimonial statement), while the jury could so find only on proof beyond a reasonable doubt. Equity demands something more than this near circularity before the right to confrontation is forfeited, and more is supplied by showing intent to prevent the witness from testifying."

I think that Souter and Ginsburg are saying that a forfeiture by wrongdoing doctrine that only requires causation (the defendant caused the potential to witness unavailable) is insufficient for the reasons you note. But when the prosecution has proof that the defendant also intended to render the potential witness unavailable for trial, it gets around the problem you note. And, they later note "the absence from the early material of any reason to doubt that the element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process. " This seems to me to be a pretty clear indication that they accept the transferred intent theory of forfeiture by wrongdoing, under which an intent to render a DV victim unavailable for a pending or future DV trial can transfer to the defendant's trial for murdering the victim.

Posted by: Colin Miller | Sep 10, 2012 4:27:37 PM

To my mind DV is not an example of intent but an exception to the general rule because of the unique circumstances pertaining to DV. It's also worth noting that they limited their remarks to *classic* abuse. That term has a specific and precise meaning within the context of domestic violence; "classic" domestic violence is a narrow subset of all domestic violence.

The problem in the Peterson case is that none of the women were by any definition victims of classic domestic violence. There is a dispute over whether or not DV went on but there is nothing in the facts as I have read them that would indicate that even if there were DV in those relationships that such DV would fall under the classic definition of it. A woman in the middle of a divorce proceeding is not in a situation "which is meant to isolate the victim from outside help."

We may just have to agree to to disagree on this point; I know that some DV advocates want to drive a semi truck through the language on DV you quoted but I don't believe the plain language of the opinion tolerates it. The concurring opinion is not subscribing to a general theory of deferred intent; it's simply acknowledging that there is a quite narrow set of cases where they would apply an exemption to the general rule that direct intent must be shown. If you understand the concurrence in any other way, it's hard to grasp how the two judges could have joined the Scalia opinion.

Posted by: Daniel | Sep 10, 2012 10:41:32 PM

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