HEARSAY, SCHMEARSAY

If there is anybody left who believes that criminal defendants are presumed innocent in the courts of America?

And what about the case where “everybody knows” that a person is guilty of a crime but admissible evidence of such guilt is lacking? Is it acceptable for a governmental body to enact a new law that will make the inadmissible evidence admissible? Illinois legislators think so. And the case in question is People of the State of Illinois v. Drew Peterson.

For those unfamiliar with this case, Drew Peterson is a former police officer. He has been married four times. In 2007 his fourth wife, Stacy, disappeared. Prior to that, in 2004, the body of his third wife, Kathleen Savio, was found in a bathtub. Her death was initially ruled as an accidental drowning.

But following Stacy’s disappearance, new interest developed concerning the death of Kathleen Savio. Her body was exhumed and a forensic examination performed. The medical examiner concluded that Kathleen Savio died of drowning following a struggle. The coroner then reclassified Kathleen Savio’s death as homicide staged to look like an accident. The suspect was Drew Peterson.

But Drew Peterson continued to proclaim his innocence while thumbing his nose at prosecutors. He even consented to interviews on television news shows. As for the Will County States Attorney, he may have wanted to charge Drew Peterson but his entire case could be summarized in four simple words: smoke but no fire.

As the facts of the case have became better known, it was reported that prior to her demise Kathleen Savio allegedly told a police officer that she had learned of an affair between Drew Peterson and Stacy, the now missing woman who was later to become Peterson’s forth wife. Savio also allegedly complained that Drew Peterson was physically abusive and that she was afraid that he might kill her. The problem was that with Kathleen Savio being dead, these statements were strictly hearsay remarks incapable of being cross-examined. They would not be admissible at trial.

And so, on December 8, 2008, the State of Illinois enacted a new law. Codified as 725 ILCS 5/115-10.6, the law is entitled: Hearsay exception for intentional murder of a witness. Nicknamed the Drew Peterson law, the statute provides that hearsay evidence may be admissible if three criteria are met:

(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.

For criminal defense lawyers, this statute creates a WTF moment.

For example, the statute is supposedly designed to create guidelines for the admissibility of evidence that might establish a defendant’s guilt. But the very first paragraph of the statute requires a finding that the defendant is already guilty of the murder charge for which he stands accused. This is circular reasoning. This is a dog chasing its tail. And what about the presumption of innocence?

The second paragraph requires the judge to determine that the statement or statements are sufficiently reliable to be admitted into evidence. But nowhere in the statute are guidelines established to determine such reliability. This is like an umpire being asked to call balls and strikes without first defining the strike zone. That being said, allow for the possibility that reliability will be proportional to the amount of media attention being given to the case.

The final paragraph, that “the interests of justice will best be served by admission of the statement” is simply Kafkaesque. The “interests of justice?” What’s that? The language of paragraph three is really a secret code for the judge. Translated, it means: everybody knows this defendant committed the crime - just get it done.

We live in an up side down world. Lip service is paid to constitutional guarantees, even as they are being erased.

We can expect more statutes like this in the future.