All Bark and No Bite: Analyzing the Role of “Drew’s Law” in the Murder Conviction of Drew Peterson [1]

The following are news reports surrounding the recent trial of Drew Peterson for the murder of Kathleen Savio, accompanied by a factual explanation:

1. Drew Peterson was convicted of first-degree murder and is currently awaiting sentencing.[2] True, he was found guilty for the murder of Kathleen Savio.[3]
2. The trial was a “potentially precedent-setting case centered on second hand hearsay statements.”[4] Incorrect. While the statute dubbed Drew’s Law[5] is new, the case’s precedential value has been established for over a century.[6]
3. “The Trial was the first of its kind in Illinois history….”[7] Untruthful, in fact Drew’s Law was employed before Peterson’s own case.[8]
4. “[Prosecutors] were forced to rely on typically barred hearsay….”[9] Misleading. Many exceptions exist to hearsay evidence rules.[10]
5. Finally, and perhaps the most fear inspiring, “[[h]ow could his conviction stand] when the constitution gives any defendant the right to confront his accuser.” Deceptive. There can be no valid constitutional claim when the right was forfeited by the accused’s own volition.

Many news articles from both local and national publications, including those above, concentrated their legal analysis on the “precedent setting” Drew’s Law.[11] While giving a brief overview of hearsay law, those reports failed to inform the reader that the basis of Drew’s Law is over a century old, nationally recognized, and as it applies to Peterson, no evidence was let in pursuant to the law that would have otherwise been barred. This article will not focus on the merits of the charges against Drew Peterson. It will, however, focus on whether this case was precedential, and whether Drew’s Law had an effect, if at all, on hearsay evidence admission at trial. As members in the legal community, we are tasked with providing clarity to thinly veiled misinformation in sensationalized cases.

A. History of the Peterson Case

In March of 2004, at the time of her death, Kathleen Savio and Peterson were engaged in divorce proceedings.[12] The hearing for separation of assets was to commence in April, one month after Savio’s death.[13] Because the divorce was no longer contested following her death, the court dissolved the Savio/Peterson marriage.[14] In 2007, following the disappearance of Stacy Peterson, Peterson’s fourth wife, the body of Savio was exhumed and murder charges were filed following additional autopsies.[15]

During pretrial for Savio’s murder, the prosecutors moved, in limine, to admit fourteen[16] hearsay statements.[17] Prosecutors argued inter alia that the statements should be admitted pursuant to statute (Drew’s Law) or the common law doctrine of forfeiture by wrongdoing.[18] The court allowed six of the fourteen statements, finding the remaining eight unable to meet the statutory reliability requirements in Drew’s Law.[19] Prosecutors appealed the ruling and the appellate court ruled on the admissibility of the remaining statements.[20]

Those facts are a matter of record and not in dispute. Where the misinformation arises is the applicability of law to statements said by Peterson’s third and fourth wife, and why they were admitted in court.

B. Applicable Hearsay Exceptions to the Peterson Case

Currently in Illinois, there exist three hearsay evidence exceptions that are applicable to the Peterson case.[21] Starting with the oldest, at 134 years, is the common law doctrine of forfeiture by wrongdoing.[22] First observed by Reynolds v. United States in 1878[23], the doctrine, and a Federal Rule of Evidence based upon it, was upheld as constitutional by the United States Supreme Court as recently as 2008.[24] The doctrine holds that while a person has a constitutional right to confront a witness, they forfeit that right when the inability to do so is caused by their own wrongdoing.[25] Thus, this exception is invoked when the party against whom the exception is sought intentionally makes a witness unavailable through their own volition.[26] This requires the defendant to have intended the unavailability to relate to the witness’s ability to testify.[27]

Illinois Rule of Evidence 804 (hereinafter Rule 804) titled “Hearsay Exceptions; Declarant Unavailable” also provides a hearsay exception applicable to Peterson.[28] It provides that if a party is unreachable to testify at a civil or criminal trial due to the defendant’s intent of stopping the witness’ testimony, a hearsay exception may be invoked and the testimony may be heard.[29] Justice Scalia, in writing for Giles v. California, stated Federal Rule of Evidence Rule 804 (on which the Illinois rule is based and contains similar language[30]) was a constitutional codification of the common-law forfeiture of wrongdoing exception.[31]

Lastly, statute 725 ILCS 5/115-10.6 “Hearsay Exception for Intentional Murder of a Witness,” better known as Drew’s Law, also applies.[32] Drew’s Law contains the same basic requirements as the common law and evidentiary rule.[33] However, the statute differs from the former by requiring three additional elements to be proven.[34] The witness must be murdered,[35] the statements that are being testified to must be reliable,[36] and justice must be served by allowing the exception.[37] These restrictions heighten the burden on the moving party.[38]

C. Why Drew’s Law Was Only Helpful To Peterson

The question remains, if there were three hearsay exceptions in existence applicable to Peterson, why was Drew’s Law so groundbreaking? How could the court allow barred hearsay evidence on the basis of a new law? In short, it isn’t and they didn’t – this is the issue.[39] Without a thorough reading of the case law and statutes, or only a reading of the media reports, the basis of Peterson’s conviction seems to be a piece of legislature intended to harm him. In reality, Drew’s Law did quite the opposite. Until the case reached the Appellate Court, eight statements proffered by the prosecution were barred, attributable only to the restrictions contained in Drew’s Law.[40]

The Appellate Court agreed with the proposition that Drew’s law is restrictive, bordering on protective of a defendant’s rights. “[B}y passing a narrower, more restrictive statute, the legislature must have intended to afford greater protections to criminal defendants than those existing under the common law.[41] ”This explanation by the Appellate Court is one that logically clashes with the portrayal in the media. The Appellate Court affirmatively responded to criticism of the hearsay evidence let in by Drew’s Law, saying that “[by passing Drew’s Law] the legislature must have intended to ensure that an unavailable witness’s hearsay testimony would be admitted only upon a showing of reliability.”

D. How Drew’s Law Became a Non-Issue

Drew’s Law and its legacy have been reduced to nothing more than an exercise in futility. The prosecutor in the Peterson case advocated for its applicability at pretrial, only to dissuade the court from its use during the appellate proceedings.[42] At, trial the statute was interpreted as allowing 43% of the proffered hearsay evidence at pretrial hearings.[43] The Appellate Court ruled that while restrictions in Drew’s Law were sufficient to bar eight of the fourteen pieces of evidence, the lower court committed an error of law.[44] Rules of evidence are controlling in the face of conflicting common law doctrines or legislative statutes.[45] The statutory restrictions did not exist at common law or in Illinois Rule of Evidence 804, and were consequently not applied when determining the admissibility of hearsay evidence by the Appellate Court in Peterson’s case.[46]

The Appellate Court analyzed the evidence pursuant to Rule 804.[47] To initiate an 804 analysis, the moving party must prove by a preponderance of the evidence that the defendant made the witness unavailable with the intention of suppressing their testimony in a civil or criminal trial.[48] None of the three restrictions located in Drew’s Law are present.[49] Prosecutors fulfilled Rule 804 requirements by arguing Drew Peterson killed Kathleen Savio and Stacy Peterson with the intent of making them unavailable as witnesses.[50] They maintained Savio was killed to be unavailable at the divorce proceeding and Stacy Peterson was killed so she would not testify to the murder charge relating to Savio’s death.[51] The prosecution met their burden and the remaining pieces of the eight hearsay statements were admitted.[52] The six statements admitted under Drew’s Law were left untouched.[53]

E. Conclusion

If the Appellate court’s reasoning is applied, the logical and actual impact of Drew’s Law decreases from 43% to 0%. Rule 804 has a lower burden than the statute while still having the same basic requirements. Thus any evidence allowed in under Drew’s Law would arguably be allowed under Rule 804. Drew’s Law had bad timing. Its applicability spurred ex post facto claims and was demonized for being drafted by the prosecutor in the Peterson case. However, if convicting Peterson was the goal of Drew’s Law, the statute found itself to be not so much a means to an end, but instead irrelevant. The Appellate Court made a point of questioning the necessity of the existence of Drew’s Law as it was neither precedent setting or pertinent to their decision.[54]

The media has been conspicuously absent on the existence of the common law doctrine and Rule 804. This insinuates to the public that perhaps Drew’s Law was the legislature’s way of deciding Peterson’s fate. The view inspires fear that constitutional rights are in some way under attack. This is not the case. There are other arguments that can be made against the admission of hearsay evidence in the Peterson trial. However, the impropriety of Drew’s Law should not be one of them, thus relegating it to cultural factoid that news outlets will discuss for the foreseeable future.

[1] Michael R. Taege is in the 2012-2013 John Marshall Law Review candidacy class.
[2] Drew Peterson Found Guilty of Murdering Third Wife, Fox News (Sept. 6, 2012), http://www.foxnews.com/us/2012/09/06/peterson-guilty-of-first-degree-murder/
[3] Id.
[4] Id.
[5] The statute 725 Ill. Comp. Stat. 5/115-10.6(f) has become known as “Drew’s Law” and will be referred to as such in this article. The statute is detailed in Section B of this article.
[6] People v. Peterson, 968 N.E.2d 204, 208 (Ill. App. Ct. 2012)(discussing the local and national history of the common law doctrine of forfeiture by wrongdoing).
[7] Drew Peterson Found Guilty of Murdering Third Wife, supra note 2.
[8] Rachel Hernandez, “Drew’s Law”: Why the Media Frenzy Over Illinois’ Hearsay Exception For Intentional Murder of a Witness is Much Ado About Nothing, 22 DCBA Brief 12, 16 (2010), available at http://www.dcbabrief.org/vol220710art1.html (discussing the application of Drew’s Law to a pro se case in DuPage County).
[9] Michael Tarm, Jury Convicts Peterson of Killing 3rd Wife, USA Today, Sept. 6 2012, http://www.usatoday.com/news/nation/story/2012-09-06/drew-peterson-verdict/57643462/1.
[10] In Illinois there are exceptions to the hearsay rule that include statements by deceased witnesses, victims of sex offenses, and unavailable witnesses; along with a witness who refuses to testify.
[11] See supra note 1 (discussing news outlet reporting of the Peterson trial).
[12] Peterson, 968 N.E.2d at 207.
[13] Id. at 208.
[14] Id. at 207-08.
[15] Id. at 208.
[16] Peterson, 968 N.E.2d at 208. Of those fourteen statements, 11 were from Kathleen Savio and 3 were from Stacy Peterson. Id.
[17] Id. See Examples of Hearsay Statement From Peterson Trial, Seattle Times, Sept. 6, 2012, http://seattletimes.com/html/nationworld/2019086849_apusdrewpetersontrialhearsay.html, for a discussion of the hearsay statements. Hearsay statements included “I would kill you and make it look like an accident.” Id. “She said that drew told her he was going to kill her, she was not going to make it to the divorce settlement, she would not get his pension or his children.” Id.
[18] Peterson, 968 N.E.2d at 208. The statutory argument centered on 725 Ill. Comp. Stat. 5/115-10.6(f) (2008) (Drew’s Law). Id.
[19] Id. at 209. The six statements allowed were pursuant to statute; the circuit court did not analyze any of the fourteen statements pursuant to the forfeiture of wrongdoing. Id.
[20] Id. at 210.
[21] Id. at 210-14 (discussing common law, rules of evidence, and Drew’s Law).
[22] Reynolds v. United States, 98 U.S. 145 (1879).
[23] Id.
[24] Giles v. California, 554 U.S. 353, 368 (2008)(discussing the common law rule’s long history of constitutionality, applicability, and codification dating back to its adoption in Reynolds v. United States).
[25] Id. (discussing the policy consideration behind the hearsay exception). The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his won wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that this constitutional rights have been violated. Id.
[26] Id.
[27] Id.
[28] Il. St. Evid. Rule 804.
[29] Id. “(a) Definition of Unavailability includes situation in which the declarant…(4) is unable to be present or to testify at the hearing because of death….” Id. “(b)Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (5) Forfeiture by Wrongdoing. 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.” Id.
[30] Fed. R. Evid. 804. “(b)(6). [Hearsay exception is allowed if a]“Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. 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 results.” Id.
[31] Giles, 554 U.S. at 368.
[32] 725 Ill. Comp. Stat. 5/115-10.6(f) (2008).
[33] Id. (stating requirement of intent to make unavailable to testify).
[34] Id. “(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.” Id.
[35] Id. “(e)(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;” Id.
[36] Id. “(e)(2) second, that the time, content, and circumstances of the statements provide sufficient safeguards of reliability;” Id.
[37] Id. “(e)(3) Third, the interests of justice will best be served by admission of the statement into evidence.” Id.
[38] Compare to Illinois Rule of Evidence and common law rule of Forfeiture by Wrongdoing, neither of which have murder, reliability, or justice requirements.
[39] Peterson, 968 N.E.2d at 212 (discussing the admissibility of evidence Drew’s Law barred under Illinois Rule of Evidence 804).
[40] Supra note 18 (discussing statements made).
[41] Peterson, 968 N.E.2d at 213 (discussing the apparent intentions of the legislature when drafting and passing Drew’s Law).
[42] Id. at 209-211 (discussing the State’s arguments at trial focused on Drew’s Law while arguing for the applicability of the common law on appeal).
[43] Id. at 209 (six divided by 14).
[44] Id. at 212 (stating there was an error of law by the trial court but the facts used to analyze admissibility under Drew’s Law are sufficient to support admissibility under Rule 804).
[45] Id.
[46] Id. at 212. Illinois passed the Illinois Rules of Evidence, which codified the Forfeiture by Wrongdoing. Id. The Illinois Supreme Court determines what evidence is admissible generally. Id. Statutes and common law doctrines are only controlling when they do not conflict with an Illinois Supreme Court decision or Rule of Evidence. Id. at 212(discussing how both the common law doctrine of Forfeiture by Wrongdoing and Drew’s Law conflict with Illinois Rule of Evidence 804).
[47] Supra note 28 (discussing the requirement in Rule 804).
[48] Id. The requirement is less than what is required to prove murder. Id.
[49] Id.
[50] Peterson, 968 N.E.2d at 210-11. Kathleen Savio was argued to have been killed to keep from being a witness in the divorce proceeding. Id.
[51] Id. Stacy Peterson was argued to have been murdered to be kept from testifying at Savio’s murder trial. Id.
[52] Id.
[53] Id. at 213-214. “Nevertheless, because the statute neither trumps nor supplants the common law, we must reverse the circuit court’s judgment.” Id. at 214.
[54] Id. at 213. If the legislature intended to facilitate the successful prosecution of criminal defendants who intentionally prevent witnesses from testifying (as the statute’s legislative history suggests), it is unclear why it passed a statute that imposed restrictions on prosecutors that are not found in the common law. Regardless, after passing a more restrictive statute, one would expect the State either to enforce the statute as written or act to repeal the statute, not urge the courts to ignore it. Id.