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Wednesday, September 26, 2012

Law - "Illinois law allowing hearsay to shape Peterson case," and the Indiana connection

On May 9, 2009 an ILB entry began:

The ILB has no plans to cover the Illinois Drew Peterson murder case.
The entry went on to quote from a Chicago Tribune story, including:
* * * prosecutors are expected to rely on a new Illinois statute -- one that Glasgow sought for months and that some call Drew's Law -- to allow Peterson's slain ex-wife, Kathleen Savio, to "testify from beyond the grave."

Peterson's defense team has vowed to challenge the law -- which would allow a judge to admit certain hearsay evidence into court -- as unconstitutional. * * *

Under the new hearsay law, which took effect in December, Glasgow could ask a judge to admit Savio's letters and alleged statements to friends and family into court. He would have to prove to the judge by a preponderance of evidence that Peterson murdered Savio to keep her from testifying against him, that Savio's statements are credible and that the best interests of the court would be served if the statements were admitted into evidence.

"It allows testimony from the grave, so to speak, about threats of violence made toward the victim," said defense attorney Lawrence Wolf Levin. But he said Glasgow would be taking a risk by relying on a law that could face legal challenges. Opponents of admissible hearsay argue that it goes against the 6th Amendment, which reads, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." "Nobody really knows whether this law will stand up and what its final viability will be," Levin said. A higher court could see it as a denial of due process and strike it down, making the Peterson case even harder to prove.

Well, I didn't cover the trial, but "Drew's Law" turns out to be relevant in Indiana.

This long Sept. 16, 2012 UPI story by Michael Kirkland is headed "Peterson convicted by 'voices from the grave.'" The very interesting article, which discusses three cases -- Ohio v. Roberts, Crawford v. Washington and Hamdan v. Rumsfeld, begins:

WASHINGTON, Sept. 16 (UPI) -- How could former Illinois police officer Drew Peterson be convicted in large part on hearsay evidence -- the words of someone who was not in court but reported by a third party -- when the Constitution gives any defendant the right to confront his accuser?

Specifically, the Sixth Amendment gives the defendant the right "to be confronted with the witnesses against him" so a defense lawyer can cross examine those witnesses and juries can evaluate witness statements in deciding guilt or innocence.

Fairly or not, jurors in Peterson's trial said hearsay statements by his third and fourth wives -- one murdered and the other presumed dead -- weighed heavily in their guilty verdict.

The answer, of course, is that the protections of the confrontation clause aren't absolute.

State law and U.S. Supreme Court precedent allow for exceptions, and with Peterson defense lawyers vowing to appeal, the high court may be the ultimate arbiter of whether his conviction was constitutional and should be upheld.

This Sept. 7, 2012 entry at the EvidenceProf Blog. A few snippets:
[B]y 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. * * *

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.

The Indiana Connection:

Indiana has adopted Evidence Rule 804(b)(5):

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness. * * *
(5) Forfeiture by wrongdoing. A statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness for the purpose of preventing the declarant from attending or testifying.
The federal rule is numbered 804(b)(6) and reads:
A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.
Indiana's rule was effective July 1, 2009 and has not yet been the subject of court interpretation. This may come soon, however. Yesterday the Court of Appeals heard oral argument (available here) in the case of Tyler A. White v. State of Indiana. Here is the writeup:
Tyler White appeals his conviction for murder following a jury trial. White presents the following issues for review on appeal: whether Indiana Evidence Rule 804(b)(5) (the “forfeiture by wrongdoing” hearsay exception) permits hearsay evidence only when the State proves by a preponderance of the evidence that the defendant’s purpose in procuring the unavailability of the declarant as a witness was to prevent the declarant’s appearance or testimony at a legal proceeding; whether the trial court abused its discretion when it excluded certain evidence relevant to a defense theory; whether Indiana’s feticide enhancement statute (IC 35-50-2-16) is unconstitutional; and whether the trial court should have “judicially supplied” a mens rea element to the feticide enhancement statute.

Posted by Marcia Oddi on September 26, 2012 03:19 PM
Posted to General Law Related