Drew Peterson was indicted and arrested for the murder of his third wife, Kathleen Savio. News reports indicate that much of the case against Peterson hinges upon statements made by Ms. Savio and perhaps Peterson’s missing fourth wife, Stacy.
Ms. Savio and Peterson were in the midst of a divorce at the time of her death. Ms. Savio made statements and wrote letters to family, friends and law enforcement regarding her concerns about her safety. Additionally, Stacy Peterson is said to have made statements regarding Drew Peterson’s whereabouts the night of Ms. Savio’s death.
Will County State’s Attorney James Glasgow is expected to attempt to use a new Illinois law that allows the use of hearsay statements by murder victims if they were murdered to prevent testimony. The law was enacted in late 2008.
Definition of Hearsay
Hearsay is a statement made outside a court hearing which is presented at the hearing to prove the truth of the contents of the statement. Evidence rules start with the premise that hearsay may not be used in court since secondhand testimony is inherently unreliable and the person who made the original statement is usually unavailable for cross-examination.
Letters, affidavits, declarations, diaries, memos, oral statements, notes, computer files, legal documents, purchase receipts and contracts are all hearsay when they are offered to prove that their contents are true. Statements by Ms. Savio and Ms. Peterson about Drew Peterson’s actions are hearsay and traditionally would not be admissible in court.
The Sixth Amendment Confrontation Clause Limits Hearsay in Criminal Cases
The US Constitution’s Sixth Amendment reads:
“In all criminal prosecutions, the accused shall enjoy the right to …be confronted with the witnesses against him …”
This is known as the Confrontation Clause and applies to all criminal cases whether felonies or misdemeanors.
While the evidence rule against hearsay generally applies to all court proceedings there are many exceptions built around the needs of justice and traditional notions of reliability. One argued exception is “forfeiture by wrongdoing” addressed by the US Supreme Court in Giles v. California.
The theory of this exception is that if a defendant’s wrongdoing is responsible for a witness’ absence, he forfeits his Sixth Amendment protections. The Supreme Court says that this can apply only if the wrongdoing was intended to prevent testimony.
The Illinois Exception to the Rule Against Hearsay Passed During the Peterson Investigation
The law expected to be used to attempt to introduce statements of Kathleen Savio and Stacy Peterson is found at 725 ILCS 5/115-10.6. This law became effective December 8, 2008. It provides that such statements may be used if by a preponderance of the evidence a judge finds that:
- The adverse party murdered the person who made the statement, also known as the declarant.
- The murder was intended to cause the unavailability of the declarant as a witness.
- The time, content, and circumstances of the statements provide sufficient safeguards of reliability.
- The interests of justice will best be served by admission of the statement into evidence.
If these elements are met in a pretrial hearing, then statements of the murder victim can be used as evidence.
Legal & Practical Problems with the Illinois Law
While the law appears to address concerns of the US Supreme Court in that it requires that an element of the murder was preventing testimony, there appear to be significant constitutional problems with the law, and practical problems involving the Peterson matter.
The biggest problem is that in attempting to use statements of either of Peterson’s wives at a trial for the murder of Kathleen Savio, the prosecution must prove to a judge that Ms. Savio and Ms. Peterson were murdered. If the statements themselves are needed to prove up a murder, the whole argument becomes very circular. The prosecution is likely to need much more than the statements to be successful in prosecuting Peterson.
David J. Shestokas - Mr. Shestokas is a former prosecutor & writes on the Constitution & legal issues for the Save America Foundation & Suite 101.
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