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Drew Peterson, Hearsay, and Confrontation

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Don Babwin reports for AP:

JOLIET, Ill. (AP) -- Drew Peterson, the former Illinois police officer who gained notoriety after his much-younger wife vanished in 2007, was convicted Thursday of murdering a previous wife in a case centered on secondhand hearsay statements from both women.

Peterson, 58, sat stoically looking straight ahead and did not react as the judge announced jurors had found him guilty of first-degree murder in the death of his third wife, Kathleen Savio. Her relatives gasped, then hugged each other as they cried quietly.

Illinois has no death penalty, and Peterson now faces a maximum 60-year prison term when sentenced Nov. 26.

The trial was the first of its kind in Illinois history, with prosecutors building their case largely on hearsay thanks to a new law, dubbed "Drew's Law," tailored to Peterson's case. That hearsay, prosecutors had said, would let his third and fourth wives "speak from their graves" through family and friends to convict Peterson.

Hearsay is any information reported by a witness that is not based on the witness' direct knowledge. Defense attorneys said its use at the trial would be central to their appeal.

Savio's family members were emotional as they left the courtroom. Her sister, Susan Dorman, threw herself into the arms of her husband, Mitch Dorman.

"Finally, finally, finally. ... We finally got that murdering bastard," Savio's brother-in-law, Mitch Dorman, said.

This is one area where the Supreme Court's rewrite of Confrontation Clause jurisprudence in Crawford v. Washington may actually work to the benefit of the prosecution.  It's hard to see the statements in question being "testimonial" within the meaning of Crawford.  If a statement is not "testimonial," its admissibility becomes just a matter of state evidence law.

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the Crawford v. Washington case did not rewrite the Sixth amendment confrontation clause. In a 9-0 opinion delivered by Justice Antonin Scalia, the Court sided with Crawford and ruled that the Sixth Amendment's Confrontation Clause gives defendants the right to confront witnesses and cross-examine their testimony. This includes testimony police gather. The Court reasoned that the Framers intended the Confrontation Clause to prohibit out-of-court testimony as evidence against defendants. By allowing out-of-court testimony if it was "reliable," the Ohio v. Roberts (1980). decision, departed from the Framers' intent. The Court overruled the Roberts decsion. Contrary to the article's statement , the Crawford case does NOT work to the benefit of the prosecution but actually works to the benefit of the defense if it challenges the constitutionality of "Drew's Law.

The original post refers to "the Supreme Court's rewrite of Confrontation Clause jurisprudence," not a rewrite of the Confrontation Clause. Overruling the primary precedent that courts were applying at that point and substituting a new analysis certainly constitutes rewriting the jurisprudence, regardless of which rule is consistent with the original understanding.

Which way Crawford cuts in this case remains to be seen. It is possible that the hearsay in this case would have been deemed "unreliable" for Roberts but will now be considered "nontestimonial" for Crawford.

In fact, when Crawford was being briefed, counsel for Crawford asked me to file an amicus brief in support on the theory that it would benefit the prosecution in some circumstances. I declined.

The ironic effect of Crawford's testimonial/nontestimonial line is that less reliable hearsay is less likely to present a constitutional question.

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