The Journal of The DuPage County Bar Association

Back Issues > Vol. 21 (2008-09)

NIU's Northern Exposure
New Illinois Hearsay Exception Fails to Codify the Common Law “Forfeiture by Wrongdoing” Doctrine
By Nhu T. Tran

Introduction:
Kathleen Savio is found naked, dead in her bathtub.1 Stacy Peterson has been missing for over a year.2 Both women had one thing in common; they were married to the same man, Drew Peterson.3

Prior to her death, Kathleen filed an order of protection and mentioned that she feared Drew could kill her.4 In fact, she stated, “He [Drew Peterson] wants me dead, and if he has to, he will burn the house down to shut me up.”5 Originally, Kathleen’s death was ruled an accidental drowning.6 However, the police reopened Kathleen’s case after Stacy disappeared.7 The chief medical examiner concluded that Kathleen’s death was a homicide staged to look like an accident.8

Prior to Stacy’s disappearance, Stacy called a family friend and said “I have to get out of here, you know. I’m not feeling very safe. I’m afraid he’s going to hurt me.”9 She also sent an email to another friend that said, “As I mature with age, I’m finding that the relationship I’m in is controlling, manipulative, and somewhat abusive. If you could keep me in your prayers, I could use some wisdom, protection and strength.”10

The Illinois legislature recently passed Public Act 095-1004, which amends Section 115-10.6 of The Code of Criminal Procedure of 1963 and became effective on December 8, 2008.11 This law creates a new hearsay exception which allows the trial court to admit statements from witnesses who are intentionally murdered by a defendant for the specific purpose of preventing the witness from testifying against the defendant at trial.12 This new law may effect a potential prosecution against Drew Peterson in both Kathleen’s death and Stacy’s disappearance because it may allow certain statements made by both Kathleen and Stacy to be admitted at trial, which would not have been allowed prior to the enactment of this law. However, based upon the recent decision by the United States Supreme Court in Giles v. California, along with the narrow wording of Illinois’ new hearsay exception, said new hearsay objection will likely not be utilized in any potential prosecution of Drew Peterson.13

Giles v. California
The United States Supreme Court decided Giles v. California on June 25, 2008.14 Giles involved a prosecution for murder.15 The trial court admitted statements that the victim had made to a police officer responding to a domestic violence report made three weeks prior to her death.16 The jury convicted Giles of first degree murder and he appealed on the grounds that admitting said prior statements violated his constitutional right to confront the witness at trial.17
The California Court of Appeals held that the trial court did not err in admitting the statement because Giles forfeited his right to confront the witness at trial since he “committed the murder for which he was on trial, and because his intentionally criminal act” made the victim unavailable to testify.18 The California Supreme Court affirmed the decision of the California Court of Appeals.19 The California Supreme Court’s theory of “forfeiture by wrongdoing” provided that the defendant in Giles forfeited his right to confront a witness at his own trial for murder, because his own “intentional criminal act made Avie [the declarant] unavailable to testify.”20

On appeal, the United States Supreme Court held “that [the] California Supreme Court’s theory of ‘forfeiture by wrongdoing’ was not an exception to the Sixth Amendment’s confrontation requirement.”21 The Court considered the issue of whether a defendant forfeited his Sixth Amendment right to confront a witness when the defendant has committed an act which made the witness unavailable to testify at the defendant’s trial.22

In Giles, the U.S. Supreme Court noted that only two types of unconfronted statements could be admitted against a defendant under the common law.23 The first type of statements is “declarations made by a speaker who was both on the brink of death and aware that he was dying.”24 The second type, called “forfeiture by wrongdoing” statements allowed the introduction of unconfronted statements of a “witness who was ‘detained’ or ‘kept away’ by the ‘means or procurement’ of the defendant.”25

At common law, unconfronted statements could be admitted under the “forfeiture by wrongdoing” exception only if the defendant intended to prevent the witness from testifying against him at trial.26 The defendant must possess the specific intent to prevent the witness from testifying; the general intent to cause the person to be unavailable at trial is not enough.27 In Giles, the defendant did not act with the specific intent to prevent the victim from testifying against him at trial, and therefore the victim’s statements had to be excluded unless they were confronted or otherwise fell within the “dying declaration” exception.28

Illinois Public Act 095-1004
Public Act 095-1004 states that a statement is not considered “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.”29 The Act further provides that “intent to procure the unavailability of the witness is a necessary element for the introduction of the statements” but it does not have to be the “sole motivation behind the murder which procured the unavailability of the declarant as a witness.”30

In order to be admissible, the judge must find by a preponderance of the evidence that the defendant “murdered the declarant and that the murder was intended to cause the unavailability of the declarant as a witness,31” that the “time, content, and circumstances of the statements” are reliable, and the “interests of justice will best be served by admission of the statements into evidence.”32 Therefore, in order for the forfeiture doctrine to apply, the proponent of the statement must establish that the defendant committed the murder with the intent of causing the witness to be unavailable at trial.33 Finally, the Act provides that “[t]his Section in no way precludes or changes the application of the existing common law doctrine of forfeiture by wrongdoing.”34

Analysis
In construing the new Illinois law in light of the Supreme Court’s holding in Giles, the Illinois law comports with Giles because it requires that the defendant possess the intent to procure the unavailability of the witness at trial.35 However, although the intent to procure the witness’ unavailability is necessary to invoke forfeiture, it does not need to be the sole intent.36

Will County State’s Attorney James Glasgow stated that the purpose of the bill was to “eliminate the incentive for criminals in Illinois to kill witnesses in an attempt to prevent them from testifying at trial.”37 Given the history of the forfeiture principle which focuses on maintaining the integrity of the judicial system, a situation where the defendant murders a witness to prevent that witness from testifying against the defendant at trial (e.g. witness tampering cases), is clearly one of the circumstances that will be covered under the new law.38

Public Act 95-1004 is not clear as to whether the trial defendant must have acted with the intent to prevent a witness from testifying at an existing trial or a future trial.39 The legislature did not explicitly state in the statute that a criminal proceeding must be pending at the time the defendant murders the witness. However, since the legislature created this new hearsay exception to maintain the integrity of the judicial system, a criminal proceeding theoretically should already be in existence.

Therefore, in any potential case against Drew Peterson, to properly admit the statements that Kathleen Savio made to the police, the prosecution must prove by a preponderance of the evidence that Peterson intentionally murdered Savio with the intention of preventing her from testifying against him at an existing trial.40 Any required specific intent will be almost impossible to prove in Savio’s case because at the time of her death, Peterson was not charged with any crime. In other words, it would be nearly impossible to prove that Peterson killed Savio with the intent to keep her from testifying against him, since there was no case pending against him.

In Stacy Peterson’s case, prosecutors will first have to establish that Stacy was intentionally murdered, before said hearsay exception would ever be applied to her case. Currently, she is still only considered missing.41 If the prosecutors can prove that Stacy Peterson was indeed murdered, then they would next have to establish that Drew murdered her with the intent of preventing her from testifying against him at trial.42

The Supreme Court in Giles did mention in dicta that intent may be presumed in cases of domestic violence which culminates into murder, if a history of domestic violence can be shown.43 Therefore, arguably with regard to Drew Peterson, if the prosecution can demonstrate a long history of violence and that an abusive relationship existed between Peterson and either Stacy Peterson and/or Savio, intent to prevent either of them from ever getting help could be presumed.44

This argument is supported by the Illinois Supreme Court decision of People v. Stechly.45 In Stechly, a plurality held that intent need not be proven and can be presumed if the defendant’s wrongdoing is murder.46 The plurality further held that murder is different than any other wrongdoing because a defendant knows with absolute certainty that the murder victim will not be available to testify.47 The absolute certainty that a murder victim will never be able to testify at trial could theoretically support presuming intent in the context of murder, while requiring proof of intent in all other situations.48

However, given the most recent Illinois Supreme Court opinion since Giles relating to “forfeiture by wrongdoing,” presuming intent in either Savio’s and/or Stacy Peterson’s situations will be difficult.49 In Illinois v. Rolandis G., a young child was unavailable to testify at the defendant’s trial because he was embarrassed and promised the defendant that he would not tell anyone about what happened.50 The court held that the “forfeiture doctrine” did not apply in that case because nothing in the record showed that when the defendant extracted the promise from the child, he did so in “contemplation of a future trial.”51
The court refused to accept the State’s argument that in child sex abuse cases, intent should be presumed because the act itself may have caused the victim to be unavailable at trial because of trauma and fear.52 The Illinois Supreme Court has made it clear that in child sex abuse cases, intent will not be presumed and the defendant’s constitutional rights cannot be abridged unless the defendant acted with the intended purpose of procuring the child’s absence at trial.53

The Illinois Supreme Court held that the Giles majority made clear that no matter how beneficial it is to the victim to admit “his or her unconfronted, testimonial hearsay [to be admitted] at trial,” the constitutional right to confront the witness takes precedence over the victim’s benefit.54 Therefore, in order for forfeiture to apply, the “evidence had to show that the “defendant engaged in witness tampering or some type of conduct designed to prevent the witness from testifying, thwart the judicial process, or procure the witness’ absence from trial.” 55

Absent proof of intent, the fact that the defendant’s actions caused the witness’s absence at trial is not enough to apply forfeiture. The notion that a defendant’s constitutional right to confront his witness at trial could be stripped on the basis of a prior judicial assessment that the defendant is guilty of the alleged crime is unconstitutional.56 It was not accepted practice at the time the Constitution was adopted to admit statements on the ground that the defendant’s conduct caused the witness’s absence.57 Given the Illinois court’s interpretation of Giles in Rolandis G., and the wording of Public Act 095-1004, the likelihood that an Illinois court will presume intent in cases of domestic violence that culminate in murder is very slim.

Although the Illinois legislature took the right step in attempting to codify the “forfeiture by wrongdoing doctrine,” the legislature failed to capture the entire purpose of the “forfeiture doctrine” by tailoring the law so narrowly that it is only applicable in cases involving first-degree murder58: “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.”59

Section 9-1 of the Criminal Code of 1961 refers to first-degree murder.60 Clauses (a)(1) provides that “[A] person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death . . . he either intends to kill or do great bodily harm to that individual or another, or knows that such acts would cause death to that individual.”61 Clause (a)(2) provides that an individual commits first-degree murder if “he knows that such acts create a strong probability of death or great bodily harm to that individual or another.”62 With this narrow codification of the forfeiture doctrine, it leaves out other wrongdoings and misconduct by the defendant that should invoke the forfeiture doctrine. Such instances include witness tampering cases that do not involve the defendant murdering the witness, but where the defendant threatens, intimidates, or coerces the witness into not testifying.63

Illinois should rewrite the law so that it mirrors Federal Rule of Evidence 804(b)(6), which provides that “a statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did procure the unavailability of the declarant as a witness” is excluded by the hearsay rule if the declarant is unavailable as a witness. 64 The United States Supreme Court described Federal Rule of Evidence 804(b)(6) as a rule that codifies the common law forfeiture doctrine.65 The Court reasoned that the “forfeiture” doctrine’s purpose was to remove “a powerful incentive for defendants to intimidate, bribe, and kill the witnesses” against them.66 Although Illinois Public Act 95-1004 is supposed to codify the common law forfeiture by wrongdoing doctrine, it is not equivalent to Rule 804(b)(6), because it only allows the hearsay exception to apply in first degree murder cases while Federal Rule of Evidence 804(b)(6) applies to a broader class of situations.

Illinois is the only state that limits the forfeiture doctrine to first-degree murder. Currently, twelve States have “recognized wrongdoing as grounds for forfeiting objection to out-of-court statements.”67 Seven of the twelve states duplicate Federal Rule of Evidence 804(b)(6) exactly as it is written.68 Furthermore, every federal circuit court of appeal has found that forfeiture can be invoked if the defendant commits various wrongs, including murder.69

Critics against codifying the “forfeiture by wrongdoing” exception argue that doing so would increase criminal convictions based on false testimony.70 Although there is an apparent risk of admitting unreliable testimony under this exception, there are many safeguards that exist to prevent this.

First, before the statement can even be admitted at trial, the proponent of the statement has the burden of establishing by a preponderance of the evidence that: (1) the defendant engaged or acquiesced in a wrongdoing; (2) the defendant committed the wrongdoing with the intent to procure the unavailability of the witness at trial; and (3) the wrongdoing actually procured the unavailability of the witness.71

Second, if something similar to Federal Rule of Evidence 804(b)(6) were adopted, there would be a requirement that the determination of admissibility be conducted outside the presence of a jury in a pre-trial hearing.72 Therefore, if the statement is rendered inadmissible, the risk of prejudice is thwarted. Furthermore, even if the prosecutor has established by a preponderance of the evidence all three factors, the judge can still examine the content of the statement and bar its admission if the judge finds the statements are unreliable and untrustworthy. Also, the trial judge can always bar admission of certain statements if the trial judge determines that “the probative value of the witness’s statement is substantially outweighed by the danger of unfair prejudice to the defendant.”73

Lastly, the defendant has the right to object over the trial court’s admission of the out-of-court statement, and the appellate court can review the decision of the trial court’s ruling for error.

Conclusion
Illinois’ new law is aimed at helping to prosecute defendants on trial for murder, by admitting statements that otherwise would be inadmissible under existing hearsay laws. However, due to its narrow wording that limits forfeiture to only first degree murder, it fails in its essential purpose of codifying the common law “forfeiture by wrongdoing” doctrine.74 The U.S. Supreme Court in Giles stated that the forfeiture by wrongdoing exception covered conduct that would create “an intolerable incentive for defendants to bribe, intimidate, or even kill witnesses against them.”75 Public Act 095-1004, as currently written, will not apply the “forfeiture by wrongdoing” doctrine in any of the situations mentioned other than murder. The Illinois legislature should rewrite the hearsay exception to mirror the wording of Federal Rule of Evidence 804(b)(6) so forfeiture can be invoked in cases where misconduct by the defendant was intended to procure unavailability of the witness in situations other than first-degree murder.76

1 Hoda Kotb, What Really Happened to Stacy Peterson? A Complete Look at Everything We Know about the Disappearance of Stacy Peterson – and the Man, Police Say, who is Their Number One Suspect, MSNBC, Dec. 21, 2007, http://www.msnbc.msn. com/id/22316689/.
2 Id.
3 Id.
4 Associated Press, Death of Ex-Cop’s 3rd Wife Was Homicide, ABC News, Feb. 21, 2008, http://abcnews.go.com/US/wireStory?id=4327234.
5 Id.
6 Id.
7 Id.
8 Id.
9 Hoda Kotb, What Really Happened to Stacy Peterson? A Complete Look at Everything We Know about the Disappearance of Stacy Peterson – and the Man, Police Say, who is Their Number One Suspect, MSNBC, Dec. 21, 2007, http://www.msnbc.msn. com/id/22316689/.
10 Id.
11 725 Ill. Comp. Stat. Ann. 5/115-10.6 (West 2008).
12 Id.
13Id.; Giles v. California, 128 S. Ct. 2678 (2008).
14 Giles,128 S. Ct. at 2678.
15 Id.
16 Id. at 2681.
17 Id. at 2682.
18 Id.
19 Id.
20 Giles, 128 S. Ct. at 2682.
21 Id. at 2683.
22 Id. at 2678.
23 Id.
24 Id. at 2682.
25 Id. at 2683.
26 Giles, 128 S. Ct. at 2684. See Davis v. Washington, 547 U.S. 813 (2006) (holding that the forfeiture by wrongdoing exception to the confrontation clause is applicable in cases where the defendant “seeks to undermine the judicial process by procuring or coercing silence from witnesses and victims); Reynolds v. United States, 98 U.S. 145 (1878) (“The constitution gives the accused a right to a trial at which he should be confronted with the witness against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he kept away.”).
27 Giles, 128 S. Ct. at 2684.
28 Id.
29 725 Ill. Comp. Stat. Ann. 5/115-10.6 (West 2008).
30 Id.
31 Id.
32 Id.
33 Id.
34 Id.
35 725 Ill. Comp. Stat. Ann. 5/115-10.6 (West 2008).
36 Id.
37 Governor Blagoveich Takes Action on Legislation that Allows Testimony of Witness who was Murdered by Defendant, http://www.illinois.gov/PressReleases/ShowPressRelease.cfm?SubjectID= 1&RecNum=7198.
38 Giles v. California, 128 S. Ct. 2678, 2686 (2008).
39 725 Ill. Comp. Stat. Ann. 5/115-10.6 (West 2008).
40 Id.
41 Id.
42 Id.
43 Giles, 128 S. Ct. at 2694. (stating that in situations where an “abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting to the authorities or cooperating with a criminal prosecution-rendering her prior statements admissible under the forfeiture doctrine.”).
44 Id.
45 People v. Stechly, 870 N.E.2d 333 (Ill. 2007).
46 Stechly, 870 N.E.2d at 353.
47 Id.
48 Id.
49 Illinois v. Rolandis G., No. 99581, 2008 WL 4943446, at *12 (Ill. Nov. 20, 2008) (the court conceded that sex offenders select children as victims because they were more vulnerable to threats and coercion, but made clear that under Giles, intent may not be presumed in child sexual abuse cases).
50 Id. at *13.
51 Id. at *16.
52 Id. at *13.
53 Id. at *15.
54 Id. at *12.
55 Illinois v. Rolandis G., No. 99581, 2008 WL 4943446, at *14 (Ill. Nov. 20, 2008).
56 Giles v. California, 128 S. Ct. 2678, 2686 (2008).
57 Id.
58 725 Ill. Comp. Stat. Ann. 5/115-10.6 (West 2008).
59 Id.
60 725 Ill. Comp. Stat. Ann. 5/115-10.6 (West 2008). See 720 Ill. Comp. Stat. Ann. 5/9-1(West 2006).
61 725 Ill. Comp. Stat. Ann. 5/115-10.6 (West 2008). See 720 Ill. Comp. Stat. Ann. 5/9-1(a)(1) (West 2006).
62 725 Ill. Comp. Stat. Ann. 5/115-10.6 (West 2008). See 720 Ill. Comp. Stat. Ann. 5/9-1 (a)(2) (West 2006).
63 Giles v. California, 128 S. Ct. 2678, 2687 (2008).
64 Fed. R. Evid. 804(b)(6).
65 Davis v. Washington, 547 U.S. 813, 833 (2006).
66 Giles, 128 S. Ct. at 2691.
67 Giles, 128 S. Ct. at 2688, n.2.
68 Giles, 128 S. Ct. at 2688, n.2 (listing the states that have adopted forfeiture by wrongdoing; Del. R. Evid. 804(b)(6) (2001); Ky. R. Evid. 804(b)(5) (2004); N.D. R. Evid. 804(b)(6); Pa. R. Evid. 804(b)(6) 2005; Vt. R. Evid. 804(b)(6) (2004); see also Tenn. R. Evid. 804(b)(6) (2003)(identical except that it excludes mention of acquiescence) Mich. R. Evid. 804(b)(6) 2008 (substitutes ‘engaged in or encouraged’ for ‘or acquiesced in’).
69 See United States v. Johnson, 495 F.3d 951, 972 (8th Cir. 2007) (holding the defendant forfeited confrontation rights when the defendant procured the unavailability of the witness for benefit of another member of drug conspiracy); United States v. Rivera, 412 F.3d 562, 567 (4th Cir. 2005) (finding the plain language of Fed. R. Evid. 804(b)(6) supports the District Court’s holding that tacitly assenting to wrongdoing is sufficient to invoke forfeiture); United States v. Thompson, 286 F.3d 950, 964 (7th Cir. 2002) (finding that for forfeiture to be imputed to a coconspirator, the conduct resulting in the forfeiture must have been committed in furtherance of the conspiracy); United States v. White, 116 F.3d 903, 911 (D.D.C. 1997) (“where a defendant has silenced a witness through the use of threats, violence or murder, admission of the victim’s prior statements at least partially offsets the perpetrator’s rewards for his misconduct.”); United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996) (“a defendant may waive his right to confrontation by knowing and intentional relinquishment . . .[w]hile a waiver of right to confront witnesses typically is express, the law is settled that a defendant also may waive it through his intentional misconduct….By the same token, courts will not suffer a party to profit by his own wrongdoing. Thus, a defendant who wrongfully procures a witness’s absence for the purpose of denying the government that witness’s testimony waives his right under the Confrontation Clause to object to the admission of the absent witness’s hearsay statement”); United States v. Aquiar, 975 F.2d 45, 47 (2d Cir. 1992) (“a defendant who procures a witness’s absence waives the right of confrontation for all purposes with regard to that witness”); United States v. Thevis, 665 F.2d 616, 630 (5th Cir. 1982) (“when confrontation becomes impossible due to the actions of the very person who would assert the right, logic dictates that the right has been waived.”); Steele v. Taylor, 684 F.2d 1193, 1201-03 (6th Cir. 1982) (stating that the forfeiture doctrine is based on the equitable doctrine of “clean hands” and that a defendant cannot profit from his own wrongdoing); United States v. Balano, 618 F.2d 624, 629 (10th Cir. 1979) (holding coercion can constitute voluntary wavier of the right to confront a witness).
70 Allison Klein, Ehrlic Targets Witness Threat Under Bill: Intimidation or Harm would Carry Increased Penalties; Measure Could Allow Hearsay Opponents Include Defense Attorney, The Baltimore Sun, Feb. 9, 2004 at Local 1B.
71 See Fed. R. Evid. 804(b)(6).
72 Id.
73 Fed. R. Evid. 403.
74 Davis v. Washington, 547 U.S. 813, 833 (2006).
75 Giles v. California, 128 S. Ct. at 2686.
76 Fed. R. Evid. 804(b)(6).

Ms. Nhu Tran is currently a second year law student at Northern Illinois University College of Law. She currently works as a judicial adjudicator at the Office of Judicial Affairs at Northern Illinois University and is a member of the Northern Illinois University Law Review.

 
 
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