EvidenceProf Blog

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

Friday, September 7, 2012

Common Law: Why Drew Peterson Shouldn't Be Able To Appeal His Verdict Based On The Unconstitutionality of "Drew's Law"

[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]

Yesterday, a jury finally convicted Drew Peterson of the murder of his third wife, Kathleen Savio. Many articles discussing the verdict made reference to hearsay statements by Savio and Stacy Peterson (Drew Peterson's fourth wife) being admitted under "Drew's law," a state counterpart to Federal Rule of Evidence 804(b)(6) enacted specifically for the Peterson prosecution (see, e.g., here and here). Indeed, many articles discussed how these hearsay statements were the key pieces of evidence in a trial that was otherwise based upon circumstantial evidence (see, e.g., this article with quotes from a holdout juror). But here's the thing: Unless I'm missing something, these statements were not admitted pursuant to "Drew's law," contained in 725 ILCS 5/115-10.6.

As noted, by enacting "Drew's Law," Illinois created a statutory counterpart to Federal Rule of Evidence 804(b)(6). This new law created a new hearsay exception, with the admissibility of statements under the exception being

determined by the court at a pretrial hearing. At the hearing, the proponent of the statement bears the burden of establishing 3 criteria by a preponderance of the evidence:        

(1) first, that the adverse party murdered the declarant and that the murder was intended to cause the unavailability of the declarant as a witness;        

(2) second, that the time, content, and circumstances of the statements provide sufficient safeguards of reliability;        

(3) third, the interests of justice will best be served by admission of the statement into evidence.

But here's the thing: In addition to Federal Rule of Evidence 804(b)(6) and "Drew's Law," there is the common law doctrine of forfeiture by wrongdoing, which allows for the admission of the same type of statements admitted under Rule 804(b)(6) and "Drew's law," but without a predicate showing of reliability. 

And, according to the Appellate Court of Illinois, Third District, in People v. Peterson, 968 N.E.2d 204 (Ill.App. 3 Dist. 2012), it was this common law doctrine that applied in the Drew Peterson prosecution and not "Drew's law." In Peterson, the circuit court had found that some of the statements eventually admitted at Peterson's trial were inadmissible under "Drew's law." In reversing, the Appellate Court found that

In contrast to the forfeiture by wrongdoing doctrine, reliability is an element of the statutory hearsay exception for the intentional murder of a witness, under which the circuit court ruled on May 18, 2010. See 725 ILCS 5/115–10.6(e)(2) (West 2008) (providing that the party seeking the admission of hearsay statements under the statute bears the burden of establishing by a preponderance of the evidence that "the time, content, and circumstances of the statements provide sufficient safeguards of reliability"). Thus, the statute stands in direct conflict with the common law doctrine of forfeiture by wrongdoing in Illinois.

The Appellate Court accordingly deemed the statements by wives #3 and #4 admissible "because the statute neither trumps nor supplants the common law." 

Therefore, unless I'm missing something, Drew Peterson can't challenge "Drew's law" on Ex Post Facto or Confrontation Clause grounds because it was the common law and not "Drew's law" that led to the admission of the subject statements.



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Can you briefly explain how it is that state common law trumps federal constitutional law?

Posted by: Daniel | Sep 7, 2012 1:16:19 PM

It doesn't. But that's not what the Appellate Court said. It said that the common law doctrine of forfeiture by wrongdoing trumped the statutory forfeiture exception created by the Illinois legislature, meaning that the latter applied. Thus, the court's decision might very well have been unconstitutional, but Peterson ostensibly can't claim that "Drew's law" is unconstitutional because the court didn't apply "Drew's law."

Posted by: Colin Miller | Sep 7, 2012 2:54:32 PM

Colin, that's my take on it as well. Quite an awkward moment for the Illinois legislature that "Drew's Law" actually made it harder to get the hearsay admitted in the Drew Peterson case, and could still create problems on appeal. (And the media is getting this wrong in every story on the case I have read).

Posted by: JBellin | Sep 7, 2012 4:29:17 PM

Great post. I wonder, what are some other examples of this conflict occurring -- and what was the ultimate result?
When has the common law been adopted but codified differently to give this type of interpretation?
Clever sidestepping or construction done right?
I'd love to review other examples. Is there a way to collectively contrast common law doctrines aside state-enacted rules? (please excuse the alliteration)
When has the reviewing court rested on the common law, and when has it rested on the statute, when given the choice?

- Matt

Posted by: Matt | Sep 8, 2012 7:59:26 AM

Upon further review and continuing confusion:

Pre-2008: We have the court recognized common law doctrine of forfeiture of wrongdoing. No need for reliability, neat-o.

2008: Drew’s law, specifically stating “[t]his Section in no way precludes or changes the application of the existing common law doctrine of forfeiture by wrongdoing.” 725 ILCS 5/115-10.6(g)

2011: Illinois Rules of Evidence – Here we have three areas to note:

First, in the Committee Comments: “It is important to note that the Illinois Rules of Evidence are not intended to abrogate or supersede any current statutory rules of evidence. The Committee sought to avoid in all instances affecting the validity of any existing statutes promulgated by the Illinois legislature.”

Next, Rule 101: A statutory rule of evidence is effective unless in conflict with a rule or a decision of the Illinois Supreme Court.

And finally the hearsay exception, Rule 804(b)(5)Forfeiture by Wrongdoing: 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.

Put it all together, we get “by passing a narrower, more restrictive statute, the legislature must have intended to afford greater protections to criminal defendants than those existing under the common law. Specifically, the legislature must have intended to ensure that an unavailable witness's hearsay testimony would be admitted only upon a showing of reliability, even if the circuit court finds by a preponderance of the evidence that the defendant murdered the witness to prevent him from testifying.” People v. Peterson, 2012 IL App (3d) 100514-B, 968 N.E.2d 204, 213. “Nevertheless, because the statute neither trumps nor supplants the common law, we must reverse the circuit court's judgment.” Peterson at 213-14.

Really? So, was there a conflict or a narrowing? Does narrowing create a conflict?

Moreover, what about that pesky above-noted language:
1. The statute is not intended to “preclude or change” the common law doctrine.
2. The adopted Rules of Evidence stating in the committee comments the rules are not intended to abrogate or supersede current statutory rules (along with Rule 101 preserving a statutory rule unless conflict exists).
3. Ironically, pairing the statute’s language with the introduction to our rules of evidence reveals two sides wishing to avoid conflict! They both appear deferential.

Now, it appears room for conflict exists because the act of murder falls inside “engaging or acquiescing in wrongdoing” consequently procuring “the unavailability of the declarant as a witness.”
But is that a conflict? Are there canons of construction that simply acknowledge there are general rules and more specific rules, and where a specific act is alleged, we should look to see if:
First, does the act alleged fall under a more specific rule? And if no;
Then, does the act alleged fall under the more general rule?

I’d venture further, but I may be way off and I’m interested in hearing other’s thoughts.

Posted by: Matt | Sep 8, 2012 7:49:32 PM

Colin: Not to nitpick, but you noted above that "by enacting 'Drew's Law,' Illinois created a statutory counterpart to Federal Rule of Evidence 804(b)(6)." This is not true. Illinois counterpart to Federal Rule 804(b)(6) is Illinois Rule 804(b)(5).

What the Illinois legislature did by enacting Drew's Law (725 ILCS 5/115-10.6) was to raise the bar when determining the admissibility of hearsay evidence against a party who purportedly murders a witness to prevent him/her from testifying at trial. For this very specific act or wrongdoing (and this act alone), the legislature mandated the court must find the declarant's statements to be reliable before allowing them as evidence.

What the Illinois Appellate Court did is nullify (in entirety) Drew's Law because 1.) it creates a legal hurdle higher than that set forth in IRE 804(b)(5) [no need to find declarant's statements are reliable before admitting them] and 2.) the preamble to Illinois Rules of Evidence provides that statutory rules of evidence (e.g., Drew's Law) are ineffective if they conflict with an established rule of evidence of the Illinois Supreme Court (e.g., IRE 804(b)(5)).

Giles v California, 554 U.S. 353 (2008) is most instructional, and I am sure that the Peterson appeal team is pouring over it - word by word. Our criminal justice system is rooted in the ability of the accused to confront witnesses against him, and the doctrine of forfeiture by wrongdoings should be narrowly construed - even in a murder case - "to ONLY situations where the defendant engaged in acts to prevent the witness from testifying against him." Relying on this principle, the Supreme Court ruled, in Giles, that the hearsay evidence purportedly spoken by a murder victim against the accused should have been rendered inadmissible because it is absurd to suggest the alleged murdere killed the victim to prevent her from testifying about the murder he was about to commit on her. The hearsay statement similarly did not satisfy the requirements of a dying declaration.

I liken Peterson to Giles; and absent a showing that Peterson killed Savio so "she would not testify against him" for a murder he had not yet committed, her putative statements should never have been let in. The double hearsay nature of them is equally troubling.

Also, curious to hear your take on the admissibility of Stacy's divorce attorney's testimony: "Stacy wanted to know if the fact that he killed Kathy could be used against him in the divorce proceedings." Ignoring the double hearsay, wouldn't anything that Peterson told his 4th wife about his ostensible involvement in the killing of his 3rd wife be inadmissible as a confidential marital communication (735 ILCS 5/8-801)?

I have no sympathy for Peterson. I just hate to see a guy get convicted based in large part (if not entirely) on hearsay statements the trial court originally found "did not meet the statutory standard of reliability and the interests of justice would not be served by allowing their admission."

Posted by: Barry | Sep 8, 2012 11:11:59 PM

Matt, what I can tell you is that when the Supreme Court of Illinois asked me to prepare a report comparing each Federal Rule of Evidence with each corresponding evidentiary principle to serve as the basis for the drafting of the Illinois Rules of Evidence, they told me that they had no interest in modifying the common law or existing statutory law. I even asked whether they wanted 50 state surveys on different evidentiary principles or if they wanted my comments on some things that Illinois did that they did not like. The response was that they were just interested in codifying the common law and that the Illinois Rules of Evidence would specifically state that they did not alter the existing common/statutory law. The provisions you cite are consistent with that understanding, and, as you note, "Drew's law" contains similar language. This is why the Appellate Court was able to reach its decision and why Drew Peterson seemingly doesn't have grounds to challenge the constitutionality of "Drew's law."

Posted by: Colin Miller | Sep 9, 2012 4:56:22 AM

Barry, yes that is correct. I think there was an argument made for moving Federal Rule of Evidence 804(b)(6) to 804(b)(5) after the residual exception was moved to Rule 807, but it never happened. Illinois, which never had codified rules of evidence until recently, just stuck forfeiture by wrongdoing at 804(b)(5).

And you are also correct that the Appellate Court in effect nullified "Drew's law" because there will be no set of facts in which "Drew's law" applies but the common law doctrine of forfeiture by wrongdoing does not.

And yes, Giles is the key on appeal, and I need to read up on the Peterson case some more before I can definitely say whether Peterson can find any solace in it. Both of your other points are very interesting.

1. On the issue of double hearsay/hearsay within hearsay, consider Chavez v. State, 25 So.3d 49 (Fla.App. 1 Dist. 2009), in which the trial court admitted double hearsay under the forfeiture by wrongdoing exception, but the appellate court reversed because Florida did not have a statutory forfeiture exception and because there was not the showing of intent required under Giles. Putting aside the issue of intent, I wonder whether the court would have found a problem with forfeiture applying to double hearsay if there was a showing of intent. Is there a reason that forfeiture shouldn't apply to double hearsay?

(Note: Florida recently decided to add a statutory forfeiture exception: http://lawprofessors.typepad.com/evidenceprof/2012/04/federal-rule-of-evidence-804b6provides-an-exception-to-the-rule-against-hearsay-for-a-statement-offered-against-a-part.html)

2. Does forfeiture by wrongdoing trump privileges such as marital privileges? I wrote about a Massachusetts case concluding that it does:


but I'm still not 100% sure that I agree.

Posted by: Colin Miller | Sep 9, 2012 5:17:46 AM

Okay, so I'm still a bit confused. Is it that Illinois, in adopting "Drew's Law" specifically did not intend for it to supplant/trump the common law that already existed? How does that make sense, if the statute adopted is narrower/more restrictive than the common law?

Posted by: Gideon | Sep 9, 2012 10:01:46 AM

Gideon, it seems to me like the legislature intended for "Drew's law" to be broader than the common law doctrine and included the language about not modifying or abrogating the common law to make sure all of their bases were covered. And when it turned out that "Drew's law" was actually narrower than the common law doctrine, that's exactly what happened.

Posted by: Colin Miller | Sep 9, 2012 12:24:27 PM

Colin: 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 1:59:37 PM

What is somewhat confusing especially to those not following every aspect of the trial, but wouldn't this prong allow EVERY homicide case to allow hearsay?

"first, that the adverse party murdered the declarant and that the murder was intended to cause the unavailability of the declarant as a witness"

Generally, killing someone is a fantastic means of ensuring their inability to testify. Should we impute that kind of scientur to all accused of murder? The next two prongs are simply subjective determinations by a judge.

Posted by: Jim | Sep 9, 2012 4:23:01 PM

JIm, what that language from Giles means is that forfeiture by wrongdoing does NOT apply in the typical scenario in which the defendant kills the victim and is then prosecuted for the victim's murder. Because that murder prosecution couldn't have existed until the victim's death, the defendant's act of killing the victim couldn't have been for the purpose of rendering the victim unavailable. Instead, forfeiture by wrongdoing only applies when the victim was already a potential witness against the defendant at the time of the killing.

Posted by: Colin Miller | Sep 9, 2012 6:52:01 PM

Many thanks, CM. I will re-read Giles and look at the trial to see where the murder to silence fits in with the fact pattern of the case. Great discussion all.

Posted by: Jim | Sep 10, 2012 9:34:57 PM

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