Saturday, February 20, 2010

The First Thing We Do, We Kill All The Witnesses Part III: Drew's Law

One of the most critical but least understood legal doctrines we studied in law school was the application of the hearsay rule, shot full of more holes than a cheap swiss cheese as it is.

The rule of course is that an out of court statement offered to prove the truth of the matter asserted is inadmissible, the reason being that the defendant does not enjoy his sixth amendment right to confront the witness. There are other reasons for the rule that have to do with the reliability of third party statements, the purpose for which the statements were made, and the purpose for which the statements are offered at trial-none of which are important here.

The rule's an old one-Dean Wigmore , writing in 1913, tells us that the purposes of the rule are that the defendant is deprived of his right to confrontation and cross examination by the admission of the statements.* Sir William Blackstone relates the hearsay rule to the issue of the best evidence, and that of course is that only the best evidence available should be allowed.** In Rex. v. Woodcock, 29 Geo. 3 (1789) the principle of the general inadmissibility of hearsay is discussed in the case of a woman found stabbed who was examined under oath by a magistrate and died some eight hours later.***

We already know in our own cases-particularly those of the infamous Bentley brothers- that a key distinction to be made is whether the statement made by the decedent is testimonial or otherwise, and that distinction pretty much rules out all formal statements to police or proceedings where the intent is to gather information for trial.

We've recently heard some news reports concerning Drew Peterson-you know, that wild and crazy guy over in Illinois whose wives have a bad habit of assuming room temperature.

It seems that the state of Illinois, in response to Peterson's antics enacted Pub. Act 095-1004-the full text of which is reprinted below. What the statute does is codify the finding of the Supreme Court in Giles v. California which holds that the California evidentiary forfeiture by wrongdoing doctrine (which allows the introduction of hearsay evidence) could only be applied if it was the killer's specific intent to procure the decedent's unavailability for trial.

The Illinois statute seems to make some incremental modifications to the Giles holding, stating that intent to procure the unavailability of the witness need not be the sole motivating factor in the murder that procured the unavailability of the witness. That's interesting. It also establishes a hearing procedure in which the proponent of the statements need only prove their admissibility under the rule by a preponderance of the evidence-a very liberal standard to be sure. Thirdly, it states that the murder of the declarant need not be the matter upon which the defendant is on trial.

Where this all gets interesting is that a hearing's just been held in the case of the very same Drew Peterson, and there's an issue of retroactive application of this statute to a case that started before it was passed.

Watch this one-it's going to go all the way to the Supremes.

Public Act 095-1004
SB2718 Re-Enrolled LRB095 05870 RLC 25961 b

AN ACT concerning criminal law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Code of Criminal Procedure of 1963 is
amended by adding Section 115-10.6 as follows:
(725 ILCS 5/115-10.6 new)
Sec. 115-10.6. Hearsay exception for intentional murder of
a witness.
(a) A statement is not rendered inadmissible by the hearsay
rule if it is offered against a party that has killed the
declarant in violation of clauses (a)(1) and (a)(2) of Section
9-1 of the Criminal Code of 1961 intending to procure the
unavailability of the declarant as a witness in a criminal or
civil proceeding.
(b) While intent to procure the unavailability of the
witness is a necessary element for the introduction of the
statements, it need not be the sole motivation behind the
murder which procured the unavailability of the declarant as a
(c) The murder of the declarant may, but need not, be the
subject of the trial at which the statement is being offered.
If the murder of the declarant is not the subject of the trial
at which the statement is being offered, the murder need not

have ever been prosecuted.
(d) The proponent of the statements shall give the adverse
party reasonable written notice of its intention to offer the
statements and the substance of the particulars of each
statement of the declarant. For purposes of this Section,
identifying the location of the statements in tendered
discovery shall be sufficient to satisfy the substance of the
particulars of the statement.
(e) The admissibility of the statements 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:
(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
(3) third, the interests of justice will best be served
by admission of the statement into evidence.
(f) The court shall make specific findings as to each of
these criteria on the record before ruling on the admissibility
of said statements.
(g) This Section in no way precludes or changes the
application of the existing common law doctrine of forfeiture
by wrongdoing.

Section 99. Effective date. This Act takes effect upon
becoming law.

*John Henry Wigmore, Select Cases on the Law of Evidence (1913) at 542.

** Sir William Blackstone, Commentaries on the Common Law of England, Book III 487 (William Jones Ed. 1916)

***Rex v. Woodcock, 29 Geo. 3 (1789) (cited in MacNally, Rules of Evidence on Pleas of the Crown (1802) at 298).


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