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Drew Peterson Arrested; Can His Dead Wife Testify "From Beyond the Grave"?

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Last night, Drew Peterson, a former Illinois police sergeant, was arrested for the murder of his third wife, Kathleen Savio.  In 2004, Savio was found dead in her home in a dry bathtub.  Her hair was soaked with blood from a head wound, yet the initial autopsy found her cause of death to be "accidental drowning."  CBS News has this story.

When Peterson's fourth wife, Stacy Peterson, disappeared in October 2007, the suspicious circumstances surrounding Savio's death resurfaced.  Savio's body was exhumed, and authorities reclassified her death as a homicide.  This Chicago Tribune timeline tracks the events leading up to Drew Peterson's arrest.

Now, with Peterson arrested, his case is making headlines again, only this time it is because the case will test a new Illinois hearsay law that allows murder victims' words to be used against their accused killers. In November of last year, Illinois amended its hearsay law so that prosecutors could enter into evidence relevant statements from witnesses who were murdered to prevent them from testifying.  Some speculated this move was prompted by Stacy Peterson's case.  Why, you may ask? Well, because both Stacy Peterson and homicide victim Kathleen Savio commented to family: "If anything happens to me, Drew Peterson killed me."  Savio also allegedly wrote a letter to a prosecutor that stated: "He would do anything to get custody of our kids, including killing me."

Already, Drew Peterson's attorney is attacking the admissibility of these statements under Illinois new law.  The law might conflict with Crawford v. Washington and  Giles v. California.     
Back in 2004, the U.S. Supreme Court decided Crawford v. Washington and held that an out of court statement could not be used as evidence against the defendant unless the defendant had the opportunity to test its reliability "in the crucible of cross-examination."  From that point onward, the Court has consistently upheld the defendant's right to confront the witnesses against him in a courtroom.  This right was examined again, last summer, in Giles v. California, a case addressing whether a defendant can "forfeit" his right to confront the witness - thereby allowing into evidence a prior unconfronted statement - if the defendant murders the witness.  (Kent wrote this post on Giles last June.)  In Giles, the Supreme Court concluded that the statement could only be admitted if the prosecution proved that the defendant killed the witness for the purpose of preventing the testimony.

The new Illinois law seeks to create a hearsay exception for cases like Giles, where the defendant forfeits his right to confront "by wrongdoing."  Senate Bill 2718 allows unconfronted statements in cases where the intent to procure the unavailability of a witness is not the sole motivation for the murder that rendered the witness unavailable.  The admissibility of this evidence will be based on three factors: (1) whether the defendant murdered the witness for the purpose of preventing testimony; (2) "that the time, content, and circumstances of the statements provide sufficient safeguards of reliability; and (3) the interests of justice will be best served by admission of the statement into evidence.  The problem with Illinois' new law is that its references to "reliability" sound vaguely like Ohio v. Roberts "indicia of reliability" test.  A test that was found unconstitutional in Crawford v. Washington

Furthermore, it is unclear whether Illinois' "forfeiture by wrongdoing" exception is consistent with last term's decision in Giles v. CaliforniaGiles acknowledged a "forfeiture by wrongdoing" exception to the the hearsay rule only for cases where the defendant knew that the witness was going to testify against him at trial.  Kathleen Savio and Stacy Peterson were not scheduled to act as witnesses against Peterson when they were killed or went missing.  The Giles forfeiture exception may not apply to their cases. 

That being said, it will be interesting to see this case go forward.  Peterson's attorney, Joel Brodsky, is already claiming he will challenge the constitutionality of the law and the admissibility of the statement.  "It is going to have to face constitutional challenge," [he] said.  "...We have now loosened the requirement for evidence in a homicide case... We should make it stricter... We're now involving rumor and innuendo and unreliable evidence in a homicide case." 

1 Comment

Aren't there some basic problems with this type of evidence--"if anything happens so and so did it"? First of all, what is the foundation for this opinion? Are we supposed to assume personal knowledge of facts of the declarant that would lead a person to infer this? Second of all, really, what's the probative value of someone's speculation (remember, we don't really have the foundation) compared to the prejudice here. And remember, someone, supposedly in fear for her life did not leave him.

Now, of course, if the defendant wants to show that he had a happy marriage, then certainly these statements should come in because they are clear proof that the marriage wasn't so hot. But substantive evidence on the merits--a prediction of murder? That's a bridge too far for me.

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