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.