The statements in question do not implicate the Confrontation Clause of the United States Constitution. As stated in Crawford, the Confrontation Clause is concerned only with out of court testimonial statements. The out of court statements relied upon to convict Peterson were made to friends and family and thus not testimonial. So forget Crawford. What that leaves us with is whether the statements are admissible under any exceptions to the rule against hearsay.
There is one: the forfeiture by wrongdoing doctrine, which essentially holds that statements made by an individual are admissible against a defendant if the individual is unavailable to make those statements in court. Further, the individual must be so unavailable because the defendant made the witness unavailable. In 2008, SCOTUS dealt with this doctrine in Giles v. California. Justice Scalia held that such statements would be admissible under this doctrine if [insert standard of proof] the defendant made the witness unavailable to prevent the witness from testifying against the defendant at a trial/proceeding.
This is a common-law rule that has existed in many states for many, many years. Illinois, where Drew Peterson was tried, has such a common law rule. Additionally, in 2008, the Illinois legislature enacted 725 ILCS 5/115-10.6 and gave it the catchy title of “Drew’s Law”. This new statute codified the forfeiture by wrongdoing doctrine and made it an explicit hearsay exception, providing that such statements’ admissibility shall be:
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:
- first, that the adverse party murdered the declarant and that the murder was intended to cause the unavailability of the declarant as a witness;
- second, that the time, content, and circumstances of the statements provide sufficient safeguards of reliability;
- third, the interests of justice will best be served by admission of the statement into evidence.
So the trial court did what any good trial court would do: it applied the new hearsay exception and found that 8 of the proffered 14 hearsay statements were inadmissible under this new exception. The State naturally appealed and an appellate court reversed [PDF], finding that while they were inadmissible under the new statutory exception, the common-law exception to the rule against hearsay was broader and permitted the introduction of these statements. That’s because the new rule required a finding of reliability, while the common law rule had no such requirement and the new statute explicitly states:
“[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). So if they’re both the law, then the older, broader version applies just as well and the statements should’ve been admitted.
Which they were.
Anonymous public defender blogger “S”, linked to above, concludes thusly:
10) And here’s where we get to the real crux of the case: forfeiture by wrongdoing. Prior to Drew’s Law, Illinois courts recognized this doctrine. Under the doctrine, a defendant who renders a witness unavailable and does so for the purpose of preventing that witness from testifying in court has waived, or forfeited, his right to complain about the admission of that witness’ statements in his trial. To satisfy this doctrine, the prosecution had to make a threshold showing by a preponderance of the evidence that Drew Peterson made both Kathleen and Stacy unavailable (whether by murder or otherwise) and that he did so to make sure they couldn’t testify against him. The district court made this finding. Ergo, any and all statements made by either of them can come in at trial.
She reaches the conclusion that since Peterson made them both unavailable (by assuming that he killed them both) and that he made them unavailable for the purpose of preventing them from testifying against him, all the statements will be deemed admissible by every reviewing court.
I think she’s half right. Here‘s a list of the statements in question. Keeping those in mind, let’s go back to Giles and the requirements of the forfeiture by wrongdoing doctrine. It’s necessary that the gatekeeper court find that the defendant made the witness unavailable to prevent the witness from testifying.
There’s a further wrinkle to this: in order for the 3rd ex-wife’s statements to be admissible at all, Giles would have to approve a transferred-intent theory of forfeiture. In essence that the intent of the defendant to prevent the witness from testifying in another case would be grounds to admitting the hearsay statements in a trial for the murder of that witness. It doesn’t make any sense in any other way, because the alternative is that any out-of-court statement by a victim of a murder would be admissible in that murder trial against the defendant. That blatantly flouts both the Confrontation Clause and the rule against hearsay. For the forfeiture doctrine to be viable, there must have been some prior proceeding at which the defendant did not want the witness to testify. For example, the defendant robs the witness. The witness is preparing to testify at the robbery trial and the defendant kills that witness to prevent him from testifying.
Any out-of-court statements would then be admissible at both the robbery trial and the subsequent murder trial. If the transferred-intent theory is invalid, then the statement would be admissible only at the robbery trial and not the murder trial.
That’s the problem with the admission of both ex-wife 3 and 4′s statements against Peterson. He was tried for the murder of 3 and her out-of-court statements were used to prove that he did, indeed, murder her. But without the transferred intent theory, their statements cause exactly the problem I just mentioned in the preceding paragraph, because there was no proceeding at which he sought to prevent their testimony.
With the transferred-intent theory there is at least a basis to admit #3′s statements. EvidenceProf explains:
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 there is no such saving grace for the statements of #4:
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.
Isn’t this fascinating? The issues, as I see them are:
1. Which version of the “forfeiture by wrongdoing” doctrine applies? The more liberal common law version or the more restrictive statutory version? It is slightly amusing to think that the legislature, by passing “Drew’s Law”, did the exact opposite of what it set out to do.
2. Does Giles apply? If it does (and I’m pretty certain it does), then is there this “transferred-intent” subtext? If there isn’t, then is any statement admissible?
3. Under what theory can wife #4′s statements be salvaged, if at all?
To be clear, the statements of both 3 and 4 were relied upon by various jurors to convict Peterson:
Other jurors acknowledged that comments by Mr. Peterson’s fourth wife, Stacy Peterson, made before her 2007 disappearance, played the decisive role in convincing them to convict Mr. Peterson.
But Mr. Saldana said the more he thought about hearsay testimony from Stacy Peterson’s pastor, the more compelling he found it.
But Mr. Supalo said he had some doubts about the credibility of Stacy Peterson’s statements to the pastor, the Rev. Neil Schori.
During the trial, Mr. Schori testified that Stacy Peterson told him weeks before she went missing that her husband got up from bed and left the house about the time of Ms. Savio’s death and then returned to stuff women’s clothing in their washing machine. Mr. Peterson also coached his wife for hours on how to lie to the police, Mr. Schori told jurors.
“When it was the 11 for guilty and just me holding out, I told them, ‘You all believe Schori’s testimony is gospel because he is a man of God,’ ” Mr. Supalo said. “They said, ‘It is.’ And I said, ‘No, it’s not!’”
There you have it. Evidence is like the brussels sprouts of vegetables.
I really recommend reading the two EvidenceProf posts and especially the comments for a fascinating discussion of these issues. As the comments will reveal, I started the day completely clueless and lost and I think I’ve barely managed to get a light grip around the issues.
I also recommend reading these three posts on the Confrontation Blog written in 2008 in the immediate aftermath of Giles. They do a wonderful job of deconstructing Giles and pointing out its many problems.
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