In which I explain all of the Drew Peterson/hearsay issues in one fell swoop so that my head won't explode

I always love how a case like the Drew Peterson case makes everyone a freakin' expert on hearsay. People who couldn't correctly define the word to save their lives are just darn sure they know it's an outrage the evidence was admitted in this trial or can state with absolute certainty that the conviction will be overturned on appeal. They repeat their opinions over and over online. And they sound smart enough, measured enough, reasonable enough. But when they try to explain to me some nuance or respond to me with a comment that starts with, "But...", it makes me want to scream. You armchair experts who watch a lot of Law & Order and maybe took a Con Law class in college may know more than most people. But I really and truly am an expert. An actual, honest to gosh expert!

Now I might qualify as an expert on criminal law generally. But if I were to pick a particular area within criminal law that is my wheelhouse, my specialty, it would be hearsay/Confrontation clause issues. You know, the issues central to the trial of Drew Peterson. And so nothing makes me crazier, really, than all the armchair experts and slick tv pundits who talk and talk and talk with tremendous certainty about how the trial was a farce or the hearsay so clearly inadmissible or the guy so obviously guilty or etc., etc. Because the truth is almost none of those people have the first freaking clue what they're talking about. Yet not knowing all the facts or procedural history or law won't stop people from spewing their opinions.

Part of the problem is that no one ever seems to stop to do all the research necessary before answering a question. Ask a lawyer a straightforward question and you'll almost never get a straightforward answer. (If you do, you either shouldn't trust that lawyer or have the easiest legal issue ever.) Because a good lawyer knows that there are always more questions to be asked, more facts to be known, and more nuances to consider. It appears that many of the lawyers who sell themselves as talking heads and pundits to the news aren't terribly good lawyers.

Now, look at a story like this one from CNN's coverage of the Drew Peterson verdict and, boy, you'd sure come away thinking there's no way this verdict stands up on appeal. And, hey, it's a reputable news source, right? But even the best-intentioned news reporter isn't (usually) a lawyer and probably doesn't know from a legal standpoint what the important facts are and aren't. Also, I'd bet good money that whoever was providing legal advice to this particular reporter hadn't actually researched this particular case because there are so many things about the CNN article that are just wrong. Meanwhile, NBCnews.com currently has a video up posing the question of whether his verdict will be overturned. But the brief video clip doesn't give any decent analysis of the legal issues, either.

So let me break it down for you. And pay attention, y'all, 'cause I actually know what I'm talking about.

1) Hearsay is any out of court statement offered to prove the truth of the matter asserted. My favorite example is you tell me you're Napoleon. So I go in to court and testify that I heard you say, "I am Napoleon!" Now, if I'm offering testimony in a case where your mental state is important, I can provide this testimony because what matters is what I heard, not whether it was true. You saying that you think you're Napoleon is pretty good evidence that you're nuts. In that situation, what matters is whether I'm being truthful about what I heard, not whether you were being truthful about what you said. If the trial issue, though, is whether you are, in fact, Napoleon, my claim that I heard you say that you are isn't admissible. Because then it's your credibility that matters, not mine. What matters is whether what I heard you say is true, not whether I heard it. Your credibility, not mine. Ok?

2) Hearsay evidence comes into court in just about every trial ever. There are roughly two dozen exceptions to the hearsay rule. Obviously if a defendant confesses, that can come in at trial. Even though it's an out of court statement offered for the truth of the matter asserted. Any document is necessarily hearsay (because it was prepared outside of court), but documents are admitted at every trial. If no hearsay could ever come in, no one could ever be tried.

3) The Confrontation Clause is the relevant Constitutional provision. Not all hearsay, though, implicates the clause. So not all hearsay issues are Constitutional issues.

4) In 2004, the US Supreme Court strengthened confrontation protections in the case Crawford v. Washington. This is the case referenced in the CNN story. But it hardly said hearsay can't come in at trial. First, the case distinguished between two types of hearsay: testimonial and non-testimonial statements. Testimonial statements are things like actual testimony at a hearing or deposition or interviews with police. Statements made with some formality or thought towards prosecuting the accused. Non-testimonial statements are things lacking any formality, state involvement, and/or eye toward prosecution (very roughly speaking). So things like casual statements to a friend over coffee. Or to a family member or a priest. Probably non-testimonial. Ok, still with me? So if you have a testimonial statement that the prosecution wants to introduce at trial against a defendant and the person who made that statement is unavailable, that statement can only come in if the defense has had an opportunity to cross-examine that witness. It makes no difference if the statement might fit a hearsay exception. But if the statement is non-testimonial, the statement can come in if it fits a hearsay exception whether the defense ever got to examine the speaker or not.

5) So the first thing we have to do with all the disputed hearsay in the Drew Peterson case would be to figure out whether any of those statements are testimonial. (This blog post lists the statements.) I'd take a pretty good shot at arguing that Stacy Peterson's statements to her attorney should be considered testimonial because she made those statements for the purpose of preserving them with an officer of the court in case something happened to her such that she couldn't testify somewhere. But I really don't know how far I might get with that argument. I think some of the statements to family and friends would be non-starters. Given the trend in the case law, I don't think many courts would even entertain that argument. I'm afraid we might find a lot of courts that would find that none of these statements are testimonial. In which case, the Constitution, the 6th Amendment, the Confrontation Clause are irrelevant. Completely and totally irrelevant.

6) Then there's the special law Illinois passed in 2008 that's commonly known as Drew's Law. In short, Illinois created a hearsay exception that says hearsay can come in if the declarant was murdered by the defendant and the defendant murdered the declarant for the purpose of preventing him or her from testifying in court. Now at first blush, it seems wrong that a state legislature would pass a law for a specific case or person. You can't do that! Well, hold on. Bills of attainder are unconstitutional, true. But that isn't what this is. A general statute with general applicability to all persons in the state are ok. And if you think about it, how many statutes are passed after one particular case or situation reveals a need for the statute?

7) But the second and more important thing about Drew's Law: the hearsay statements in Peterson's trial weren't admitted because of that statute. Not that you would have any idea from reading any of the stories about the case. But you would if you'd read the decision of the Third District of the Illinois Appellate Court from April 2012. Which I have. And now you can, too. (The redacted page is the list of statements that was sealed as no trial had occurred yet.)

8) Now what happened is this: the district court considered all of the hearsay issues in a pre-trial motion and ruled, under Drew's Law, that most of it couldn't come in. Yep, you read that right. Under the special law passed just to convict Drew Peterson, the district court found that the disputed hearsay was inadmissible. Because the state statute requires the district court to make a reliability finding about the statements, which this court said it couldn't find. So they were out. In rare situations, the prosecution can file an interlocutory appeal on a decision like this that will so radically affect the trial, so they did.

9) So we get to the appellate court. And here's the next part that no one seems to understand. The appellate court basically said none of any of what I've already written about matters. Because there is a common law doctrine that goes back over 100 years that means Drew Peterson has waived his right to challenge the admissibility of any statements of Kathleen Savio or Stacy Peterson. So it doesn't matter if those statements are testimonial or not. It doesn't matter if they're reliable or not.

10) And here's where we get to the real crux of the case: forfeiture by wrongdoing. Prior to Drew's Law, Illinois courts recognized this doctrine. Under the doctrine, a defendant who renders a witness unavailable and does so for the purpose of preventing that witness from testifying in court has waived, or forfeited, his right to complain about the admission of that witness' statements in his trial. To satisfy this doctrine, the prosecution had to make a threshold showing by a preponderance of the evidence that Drew Peterson made both Kathleen and Stacy unavailable (whether by murder or otherwise) and that he did so to make sure they couldn't testify against him. The district court made this finding. Ergo, any and all statements made by either of them can come in at trial.

11) And the United States Supreme Court has explicitly approved this doctrine only 4 short years ago. In the 2008 case, Giles v. California, the Court said that, yes, forfeiture by wrongdoing remains a valid doctrine even after Crawford. The Court, though, did narrow the scope of the doctrine. Some states wanted to apply the doctrine any time the defendant made the victim unavailable, which would basically mean any statement by any victim in any murder case ever would be admissible at trial. The Court insisted that it could only apply where the defendant got rid of the witness because s/he was a potential witness. The district court in Drew Peterson's case made the requisite finding, so we already know that the US Supreme Court shouldn't have any problem with this case.

12) In my view, the best appellate avenue is to argue that the appellate court was wrong to say that the more expansive common law doctrine could apply to the case even after the legislature passed the more restrictive statute. I don't know enough about Illinois law to know whether the Illinois Supreme Court will be receptive to that argument or whether they will agree with the lower appellate court's decision. But that question is purely a question of state law that has nothing to do with the federal Constitution and so would not be reviewable by the US Supreme Court. And given that Drew Peterson's own lawyer is still screaming about Drew's Law when the appellate court decision pretty clearly says this case doesn't come down to Drew's Law, I don't have a whole lot of faith in his defense making the right argument on appeal that applying Drew's Law would actually help his client.

13) And finally, I just can't let the CNN author's claim that these hearsay statements wouldn't come in in any other state go 'cause that's just not true. Not even close, as you ought to be able to guess if you follow all of the steps I have laid out above.


Phew! That was really long, I know. And I appreciate those of you who made it to the end. Personally, I feel much better knowing that I at least got to lay this all out somewhere on the internet. This case isn't all that much of an outrage. It isn't even all that unusual. It's certainly not the death knell for confrontation or for due process or democracy or whatever. I think it's pretty likely it won't get anywhere on appeal. (Though, of course, like any good lawyer I must hedge on that as I don't have access to the transcripts so don't know what issues and arguments were raised and do not know what the district court's rulings at trial were.)