Former Bolingbrook Police Sergeant Drew Peterson’s young wife Stacy mysteriously disappeared in October 2007,1 just three and a half years after his third wife, Kathleen, was found dead in a dry bathtub.2 Not surprisingly, Peterson has been in the spotlight since. Though Kathleen’s death was originally deemed accidental,3 Stacy’s disappearance reignited the suspicions of Kathleen’s family as well as those of law enforcement. While investigations into Peterson were ongoing, the Illinois legislature passed the Hearsay Exception for Intentional Murder of a Witness through Public Act 95-1004,4 which has caused quite a stir. The statute allows for hearsay evidence to be admitted if, among other criteria, the proponent of the evidence can prove, by a preponderance of the evidence, that the party whom the statement is offered against intentionally murdered the declarant.5 Peterson and his legal team have generated much media attention by alleging that the new hearsay exception was directed at Peterson; the law even having been dubbed, "Drew’s Law."
Last year Peterson filed a motion to declare the statute unconstitutional based on ex post facto and confrontation grounds,6 which the trial court denied.7 At the time of this writing, the trial court has yet to rule on what, if any, hearsay evidence will be allowed at Peterson’s trial under this hearsay exception. If all goes as scheduled, by the time this article is published, the court will have ruled on this issue and Peterson will be on trial for Kathleen’s murder.8
For most that have seen interviews of Peterson or heard the story portrayed in the media, it isn’t difficult to presuppose his guilt. However repugnant Peterson may be though, the idea of the deterioration of our Constitutional rights through vindictive legislation is equally so. Upon closer inspection, it appears that the media’s portrayal of the statute having been created in response to the Peterson case is much ado about nothing. Neither the statute, nor the concept underlying it, is novel. Illinois did not break new ground in enacting this hearsay exception. Indeed, many states already had statutes on the books encompassing the same concept.9 Moreover, both the Illinois Supreme Court and the United States Supreme Court previously recognized the use of the hearsay exception via the common law doctrine of "forfeiture by wrongdoing",10 which is the premise for the statute. And while there can be no doubt that those on trial have a right to confront their accusers via the Sixth Amendment, precedent dictates that even "testimonial" hearsay statements, which have been deemed to require confrontation,11 are not beyond the reach of the doctrine of forfeiture by wrongdoing.12 In short, Illinois’ "new" hearsay exception is not unfair to Peterson, nor does it contravene his Constitutional rights.
The Drew Peterson Case
Drew Peterson is an extraordinary character. He landed in the spotlight in part because at 53 he was married to 23 year old Stacy, who disappeared in October 2007.13 Stacy’s disappearance came on the heels of the death of Peterson’s third wife, Kathleen Savio. Then in the midst of the investigation into Kathleen’s death and Stacy’s disappearance, Peterson got engaged to another 23 year old, Christina Raines.14
The facts of the Peterson case have the makings of a true crime novel. Upon Stacy’s disappearance, people began coming forward with information about statements made by Kathleen Savio and Stacy Peterson relative to Peterson’s potential involvement. The following statements were at issue:
· Kathleen Savio wrote a letter to an Assistant State’s Attorney in Will County in July 2002 detailing abuse by Peterson, including an alleged attack where he put a knife to her throat.
· A woman who rented Savio’s basement in 2003 came forward with statements made by Savio that she was afraid Peterson would kill her.
· One of Savio’s junior college classmates, as well as one of Savio’s co-workers, each saw red marks on Savio’s neck, Savio told them they were made by Peterson.
· One of Savio’s sister told of Savio’s fears that Peterson would kill her.
· Another of Savio’s sisters claimed Savio had said that Peterson wanted to kill her and asked her to care for Savio’s children if she died.
· Savio’s divorce attorney claimed Stacy contacted him about divorcing Peterson shortly before she vanished.
· Stacy’s friend said Stacy told him that Peterson coached her as an alibi witness in Savio’s death.
· Stacy’s pastor stated Stacy told him that Peterson returned home dressed completely in black and carrying a bag of women’s clothing in the late morning on the day Savio’s body was found. Stacy also told him that Peterson coached her to provide his alibi.15
During the investigation, Peterson made several provocative television appearances accusing Stacy of leaving him and their children to run away with another man.16 The body of Kathleen Savio was exhumed and an autopsy revealed evidence indicative of a murder.17 Peterson was charged with the murder of Kathleen Savio on May 7, 200918 and is awaiting trial in the Will County Jail.19 The investigation with respect to the disappearance of Stacy Peterson is ongoing.
Hearsay Exception for Intentional Murder of a Witness
The language of the statute was enacted as follows:
(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 witness.
(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 reliability;
(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.20
The statute has been dubbed, "Drew’s Law," an honor typically reserved for the victim of a crime, not its alleged perpetrator. Headlines suggest that the law was conceived specifically to convict Peterson, rather than being based on accepted common law hearsay exceptions and related case law. Interestingly, the Peterson case will not be the first application of the law inasmuch as the hearsay statute was first used in May 2009 in DuPage County.21 In that case, the defendant, Joshua Matthews, was accused of shooting and killing Sade Glover in 2005. Glover had made statements to police regarding Matthews having punched her in the face three months before her death. A written statement and other evidence from the earlier incident were allowed to be admitted via 725 ILCS 5/115-10.6, despite Matthews’ objections that such evidence violated his Sixth Amendment right to confrontation.22 Application of the hearsay exception in cases similar to Matthews and Peterson does create an awkward scenario. In order to admit certain statements made by the declarant (victim) the court would have to rule that, by a preponderance of the evidence, the defendant murdered the declarant.23 In other words, in the Peterson case, in order to apply the hearsay exception to statements made by Savio, the judge must first find Peterson guilty of the offense charged, albeit based on a lower burden. As problematic as that scenario may seem, it does not support Peterson’s claim that the law is unconstitutional. Indeed the United States Supreme Court expressly addressed such application in its decision in Giles v. California
.24 The statute mirrors the long accepted doctrine of forfeiture by wrongdoing as it pertains to murder and was enacted with the benefit of guidance from the United States Supreme Court in its decision in Giles v. California
. The statute does not do away with the doctrine of forfeiture by wrongdoing,25 rather provides a succinct mode of application for Courts in Illinois.
Doctrine of Forfeiture by Wrongdoing in Illinois and the United States
While headlines shout out injustice at the prospect of a witch hunt devised to convict Drew Peterson, there has been little attention given the longstanding precedent of allowing the type of hearsay evidence made admissible by the statute. Both Illinois and the United States have recognized the doctrine of forfeiture by wrongdoing as an exception to the hearsay rule.26 Illinois’ hearsay statute is based on this very doctrine. The doctrine of forfeiture by wrongdoing is based in equity. According to this rule, "one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation."27
Courts were split regarding whether specific intent to cause the unavailability of a witness was required in order to trigger the doctrine of forfeiture by wrongdoing prior to the United States Supreme Court’s decision in Giles v. California.28 In fact, in People v. Stechly, the Illinois Supreme Court stated, in dicta, that "the total certainty that a murdered witness will be unavailable to testify could theoretically support presuming intent in the context of murder, while requiring proof of intent in all other situations,"29 suggesting a broad interpretation of the doctrine with respect to murder. The United States Supreme Court, in its decision in Giles v. California, addressed the murder scenario, resolving the split. Intent to prevent a witness from testifying is required in order for the forfeiture doctrine to apply. The Court held that "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."30
The Court in Giles
also indicated, however, the possibility of inferring intent to cause a witness to be unavailable with respect to the application of forfeiture by wrongdoing in the context of domestic violence, stating, "Acts of Domestic Violence often are intended to dissuade a victim from resorting to outside help, and include any conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions."31 The Court explained that "[w]here such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and stop her from reporting abuse to the authorities or cooperating with a criminal prosecution – rendering her prior statements admissible under the forfeiture doctrine."32 It is likely, then, that issues of domestic violence will have an impact with respect to admissibility of statements in the Peterson case.
The hearsay exception at issue did not make its way through the General Assembly until Peterson was already under investigation. The timing of this legislation gave Peterson an opportunity to argue that application of the statute violated the Constitutional prohibition against passing an ex post facto law. Peterson pointed to the Illinois Supreme Court’s opinion in People v. Konetski
and concluded that the Court was speaking directly to his case.33 In Konetski
, the Illinois Supreme Court stated: The ex post facto clauses of the United States Constitution prohibit retroactive application of a law inflicting greater punishment than the law in effect when a crime was committed. Those Constitutional provisions, therefore, restrain legislative bodies from enacting arbitrary or vindictive legislation and assure that a statute gives fair warning of its effect. A law is ex post facto if it is retroactive and disadvantageous to a defendant. A law is disadvantageous to a defendant if it criminalizes an act innocent when performed, increases the punishment for an offense previously committed, or alters the rules of evidence making a conviction easier.34
At first blush, the latter provision seems applicable to the Peterson case. After all, adding a new hearsay exception potentially allows more evidence to be admitted against the defendant making it easier to convict. However, the applicable standard is that the rules of evidence be altered to change the quantum of evidence required to convict. The burden of proof for murder, unchanged by the statute, is still beyond a reasonable doubt. Stated differently, Illinois’ new hearsay exception does not fit the criteria to qualify as a violation of ex post facto.
Confrontation Clause argument
Peterson argues that Illinois’ new hearsay exception is an unconstitutional violation of the Sixth Amendment Confrontation Clause, which provides that, "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." Testimonial statements are normally admitted only when the witness will be present at trial for cross-examination, and if the witness is unavailable, his prior testimony will be introduced only if the defendant had a prior opportunity to cross-examine him.35
Peterson relies on the U.S. Supreme Court decision in Crawford v. Washington
that overruled longstanding precedent which had held that "it was not a violation of the sixth amendment confrontation clause to admit out of court hearsay statements into evidence as long as the statements were found to be reliable, either because the evidence fell within a firmly rooted hearsay exception or because there were other ‘particularized guarantees of trustworthiness.’"36 In Crawford
, the Court focused on whether the statements were testimonial or non testimonial. If the statements were testimonial in nature and the declarant was unavailable, the statements could only be admitted if there was a prior opportunity for cross-examination."37 On the other hand, non testimonial statements are not subject to the confrontation clause.38 Peterson’s argument failed because he tried to declare that the law was unconstitutional on its face. To prevail, Peterson had to prove that there were no circumstances in which the new hearsay exception could be valid.39 The government argued in response to Peterson’s motion that the hearsay exception was constitutional even if it applied to testimonial statements because such statements fit within the long-recognized doctrine of forfeiture by wrongdoing. In addition, the new law could apply to non-testimonial statements, which carry no risk of violating the confrontation clause.
That which constitutes "testimonial" hearsay has been refined since the landmark ruling in Crawford v. Washington
, which changed longstanding precedent with regard to hearsay evidence.40 In Crawford
, the United States Supreme Court reversed defendant’s conviction as a result of tape recorded statements made by the defendant’s wife in response to police interrogation being allowed in at trial, despite the fact that she was not available for cross examination due to marital privilege.41 Although the Court did not clearly define the term "testimonial," it included "at a minimum prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations."42 Later, in Davis v. Washington
, the Court considered whether statements made to law enforcement personnel in two separate cases were considered "testimonial" and therefore, subject to the sixth amendment confrontation clause. The Court concluded that written statements provided to police officers at the scene of a domestic altercation at a time when there was no ongoing emergency were testimonial, while statements made to a 911 operator to enable police assistance to meet an ongoing emergency were not. The Court explained that a statement to law enforcement personnel will be deemed "nontestimonial" if circumstances objectively indicate that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency, but "testimonial" where there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events to identify or convict the perpetrator."43
The Court in Peterson has yet to rule on the admissibility of statements pursuant to Illinois’ new hearsay exception.44 Therefore, it is unclear what, if any, hearsay statements will be used at trial in the Peterson case. Unlike the Matthews case in DuPage County – with its pro se
defendant, confession and overwhelming physical evidence – the Peterson case seems to be the perfect storm for testing the bounds of the statute.45 The Peterson case presents: two marriages having culminated in tragedy; allegations of domestic violence; a lack of physical evidence with respect to both women; and a multitude of people coming forward with hearsay statements made by each of the women.
The Peterson case will not likely turn on his ex post facto argument, instead, the case will bring to focus two specific issues with respect to whether various pieces of hearsay evidence are admitted. First, whether each potential statement being offered is "testimonial" in nature, thus placing it under the purview of the Confrontation Clause and requiring utilization of the hearsay statute. Second, whether Peterson "intended, at least in part" to make the potential witness(es) unavailable in a criminal or civil proceeding. While particulars of how the statute will be interpreted in the Peterson case are unclear, we have not seen the last of Drew Peterson or the controversy his case has generated regarding the "Hearsay Exception for Intentional Murder of a Witness" statute.
1 Christy Gutowski, Stacy Peterson’s Aunt said wife wanted out, miserable in marriage, Daily Herald, 1/26/10, available at http://www.dailyherald.com/story/?id=353947.
2 Jeff Goldblatt and Melissa Underwood, Authorities Exhume Cop’s 3rd Ex-Wife’s Body, Search Continues for Missing 4th Wife Stacy Peterson, November 13, 2007, available at http://www.msnbc.msn.com/id/21769873/ns/us_news-crime_and_courts/.
3 Erika Slife, Joel Hood and Lolly Bowean, Drew Peterson: Ex-cop arrested on murder charges in ’04 death of third wife, Chicago Tribune, May 8, 2009, available at http://www.chicagotribune.com/news/local/chi-drew-peterson-08.1may08,0,5422413.story.
4 See, Public Act 095-1004, available at http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=095-1004.
5 725 ILCS 5/115-10.6 (West 2008).
6 Defendant’s Motion to Declare 725 ILCS 5/115-10.6 Unconstitutional, available at http://drewpetersondocuments.com/#hldu.
7 Steve Schmadeke, Drew Peterson Trial: Hearsay Law Upheld, Statements from Peterson’s 3rd, 4th wives admissible at trial, October 3, 2009, available at http://articles.chicagotribune.com/2009-10-03/news/0910020324_1_hearsay-murder-trial-defense-attorneys.
8 Joe Hosey, Year after arrest, Peterson eager for trial, May 7, 2010, available at http://www.suburbanchicagonews.com/heraldnews/news/2243952,Peterson-arrest-anniversary-JO050610.article.
9 Giles v. California, 128 S.Ct. 2678, 2688 (2008).
10 See, People v. Stechly, 870 N.E.2d 333 (Ill. 2007), Giles v. California, 128 S. Ct. 2678 (2008).
11 Crawford v. Washington, 124 S. Ct. 1354, 1370 (2004).
13 Christy Gutowski, Stacy Peterson’s Aunt said wife wanted out, miserable in marriage, Daily Herald, 1/26/10, available at http://www.dailyherald.com/story/?id=353947.
14 Kara Spak, Drew Peterson and fiancée Christina Raines make ‘Today Show’ appearance, Chicago Sun-Times, February 13, 2009, available at http://www.suntimes.com/news/peterson/1429484,drew-peterson-christina-raines-today-show-021309.article.
15 Chicago Tribune, February 23, 2010, Witnesses and hearsay statements that a judge is considering whether to allow in Drew Peterson’s Trial, available at http://articles.chicagotribune.com/2010-02-23/news/ct-met-drew-peterson-box-0224-20100223_1_kathleen-savio-hearsay-testified.
16 Stephanie Chen, Drew Peterson, you have the right to remain silent, February 3, 2010, CNN, available at http://www.cnn.com/2010/CRIME/02/03/illinois.drew. peterson.quotes/index.html.
18 Erika Slife, Joel Hood and Lolly Bowean, Drew Peterson: Ex-cop arrested on murder charges in ’04 death of third wife, Chicago Tribune, May 8, 2009, available at http://www.chicago tribune.com/news/local/chi-drew-peterson-08.1may 08,0,5422413.story.
19 Joe Hosey, Year after arrest, Peterson eager for trial, May 7, 2010, available at http://www.suburban chicagonews.com/heraldnews/news/2243952,Peterson-arrest-anniversary-JO050610.article.
20 725 ILCS 115-10.6.
21 Christy Gutowski, Prosecutors use ‘Drew Peterson’ hearsay law in Warrenville murder, Daily Herald, 5/14/09, available at http://www.dailyherald.com/story/?id=293711.
23 725 ILCS 115-10.6(e).
24 Giles v. California, 128 S. Ct. 2678 (2008).
25 725 ILCS 5/115-10.6(g).
26 See, People v. Stechly, 870 N.E.2d 333 (Ill. 2007), Giles v. California, 128 S. Ct. 2678 (2008).
27 Davis v. Washington, 547 U.S. 813, 833 (2006).
28 In re Rolandis G., 232 Ill.2d 13, 38 (2008).
29 Stechly, 870 N.E.2d at 353.
30 In Re Rolandis G., 232 Ill.2d 13, 40 (2008).
31 Giles, 128 S.Ct. at 2693.
33 Defendant’s Motion to Declare 725 ILCS 5/115-10.6 Unconstitutional, available at http://drewpetersondocuments.com/#hldu.
34 People v. Konetski, 233 Ill.2d 185, 208 (2009).
35 Giles, 128 S. Ct. at 2682.
36 Ohio v. Roberts, 448 U.S. 56, 66 (1980).
37 Crawford v. Washington, 124 S. Ct. 1354, 1368 (2004).
38 Davis, 547 U.S. at 821.
39 Hill v. Cowan, 202 Ill.2d 151, 157 (2002).
40 Crawford, 124 S. Ct. 1354, 1354-1355 (2004).
42 Id. at 1368.
43 Davis, 547 U.S. at 822.
44 Joe Hosey, Year after arrest, Peterson eager for trial, May 7, 2010, available at http://www.suburbanchicagonews.com/heraldnews/news/2243952,Peterson-arrest-anniversary-JO050610.article.
45 Christy Gutowski, Man’s murder confession to distraught mom allowed at trial, 4/29/10, Daily Herald, available at http://www.dailyherald.com/story/?id=377190.
Rachel Hernandez is a Special Appointed Assistant State’s Attorney in Winnebago County, working part-time while raising two wonderful children. She received her J.D. from Northern Illinois College of Law in 2005. She has also served as an Assistant State’s Attorney in Boone County and an intern pursuant to Supreme Court Rule 711 in Kane County. She has worked on a variety of criminal misdemeanor and felony cases, including murder.