Anyone who follows the news, and likely some who do not, is aware that on September 6, 2012, Drew Peterson was found guilty of the first-degree murder of his third wife, Kathleen Savio. Furthermore, you are likely aware of the immense controversy surrounding the trial. If you take a moment to Google the name “Drew Peterson,” you will quickly realize that nearly every news account focuses on the “unprecedented amount of inadmissible hearsay allowed into evidence to support his conviction.” Readers beware: nearly every news story misquotes the hearsay rule and its applicability at trial. This reckless disregard for the truth has inspired this article.
In its most basic definition, hearsay is “an out-of-court statement offered to prove the truth of the matter asserted.” Hearsay is inadmissible unless it falls within an exception, of which, the Federal Rules of Evidence (FRE), and its state counterparts, enumerates roughly thirty of them. Therefore, the inquiry does not end once one determines that a statement qualifies as hearsay, but rather, one must go on to determine whether the statement falls under an exception. Unfortunately, many commentators on the Peterson case never take this second step, and thus, erroneously conclude he was convicted based on inadmissible hearsay.
To be sure, a great deal of hearsay evidence was presented to the jury. In fact, besides a pathologist report deeming Savio’s death a homicide, the State’s entire case arguably rested on hearsay. For instance, Savio’s friend, Kristen Anderson, testified that Savio told her Drew had held a knife to her throat and said, “I could kill you and make it look like an accident.” Additionally, Rev. Neil Schori testified about a conversation he had with Stacy Peterson, Drew’s fourth wife who disappeared under mysterious circumstances in 2007, stating that she told him Drew had disappeared the night of Savio’s murder. When Drew came home he had coached her on how to lie to the police concerning his whereabouts. Commentators correctly deem this testimony hearsay; however, they fail to acknowledge that it is admissible hearsay pursuant to FRE 804(b)(6). 2
FRE 804(b)(6) reads, “A statement offered against a party that wrongfully caused – or acquiesced in wrongfully causing – the declarant’s unavailability as a witness, and did so intending that result[,] [is not excluded by the hearsay rule].” Notably, this rule does not require any of the indicia of reliability and trustworthiness that almost all the other hearsay exceptions are premised upon. Rather, this rule is aimed at preventing a party from benefitting as a result of their own wrongdoing. This exception prompted State Attorney James Glasgow to pronounce that Savio and Stacy Peterson would be able to speak from the grave – and speak from the grave they did, in the form of fourteen different hearsay statements.
To spare you the monotony of sorting out a complicated set of facts, and an even more complicated procedural history, I will briefly summarize. In 2009, Drew Peterson was charged with the first-degree murder of his third wife, Savio, who was found dead in her dry bathtub in 2004. Her death was originally ruled an accidental drowning, with Peterson’s fourth wife, Stacy, providing his alibi. However, Savio’s body was exhumed and her case reopened after Stacy vanished in 2007. Peterson remains the sole suspect in the disappearance of Stacy, but he has not yet been charged.
In order for the hearsay statements of Savio and Stacy to be deemed admissible, the State only needed to convince the judge by a preponderance of the evidence (as opposed to beyond a reasonable doubt) that Peterson had wrongfully procured their unavailability at trial with the intent of preventing them from testifying against him.
Clearly, Peterson did not kill Savio with the intent of preventing her from testifying against him at the trial because it was her very death that sparked the trial in the first place. However, critical to the State’s argument on this evidentiary issue was the fact that Savio was murdered one month before her and Peterson’s divorce proceeding. Thus, the judge concluded it was more likely than not that his wrongdoing was intended to prevent her from testifying at that proceeding, which subsequently qualified any of her out-of-court statements to fall under the FRE 804(b)(6) exception.
Additionally, the State argued that Peterson had intentionally procured the unavailability of Stacy because he knew that she could implicate him in the murder of Savio. Importantly, FRE 804(b)(6) does not require the defendant to have killed the declarant, but only to have wrongfully procured their absence from trial. Thus, the court found by a preponderance of the evidence that an adequate foundation had be laid to deem the statements of Savio and Stacy admissible as a matter of law.
Disturbingly, a second major misconception persists in the mainstream media concerning the Peterson trial – that is, the “hearsay evidence was permitted based on a 2008 state law that was specifically tailored to Mr. Peterson’s case.” False! The evidence was permitted based on a principle of common law dating back hundreds of years. The 2008 state law inappropriately referred to is 725 ILCS 5/115-10.6, or otherwise known as “Drew’s Law.” While it is true that the Illinois legislature presumably passed this law to ensure the admissibility of evidence in the Peterson case, to claim that this is how it actually played out reflects an abject ignorance of the facts.
“Drew’s Law” created a statutory exception to the hearsay rule that is substantially similar to FRE 804(b)(6); however, it adds the additional requirements that the judge must find that the defendant killed the unavailable declarant and that the “time, content, and circumstances of the statement provide sufficient safeguards of reliability.” While many claim the hearsay statements were admitted in the Peterson trial under this statute, the truth is that these narrower provisions caused many of the statements to be excluded by the trial judge. Indeed, the trial judge found, on a motion in limine, that eight of the fourteen statements lacked the statutorily required “safeguards of reliability,” and deemed them inadmissible. Subsequently, the State appealed this ruling, and the appellate court found that pursuant to principles of separation of powers, the common law doctrine codified in FRE 804(b)(6) trumps the legislatively enacted statute. Furthermore, since FRE 804(b)(6) does not require a test of reliability, all fourteen of the statements were deemed admissible. Therefore, any indication that “Drew’s Law” had an effect on the outcome of this case is not simply misleading, but rather, patently untrue.
Defense attorneys have indicated that they plan to appeal under the Confrontation Clause, which is intimately tied to the hearsay doctrine. Simply stated, the Confrontation Clause is based in the Sixth Amendment of the United States Constitution, which affords a defendant the right to be confronted with the witnesses against him. Suffice it to say for our purposes, when a defendant wrongfully procures the absence of the witness he wishes to confront, he forfeits that right. Therefore, the Confrontation Clause will provide shaky grounds, at best, for appeal.
As for now, all we know is Drew Peterson will be sentenced on November 26, 2012, and an appeal is likely to follow. Additionally, prosecutors have indicated that their success in Savio’s case has renewed their confidence about bringing charges on the murder of Stacy—however, without a body the chances of a conviction seem slim. Nevertheless, the moral of the story is to be careful what you read, and the next time you hear someone say that Drew Peterson was convicted based on inadmissible hearsay (which may be never), give them an evidence lesson.