Whatever you think of Drew Peterson – and I have a sense that I wouldn’t want him to marry a woman I cared about – I see something disturbing in his conviction this past week in Illinois. Hearsay was a cornerstone of the verdict, allowed in under a law recently passed in that state. I had occasion today to discuss it with a law professor from Illinois who’s taking my class. “My big concern,” he said, “is that it was ex post facto. It looks as if the law was passed solely so they could convict Drew Peterson.”
This one is definitely gonna be appealed. Smart money is saying that the conviction may survive the Illinois State Supreme Court, but that the inclusion of hearsay will absolutely get it thrown out by the time it has been reviewed by the Supreme Court of the United States.
Meanwhile, a few weeks ago the Connecticut State Supreme Court said that it would allow experts to testify as to the unreliability of eyewitness testimony. This has been the invisible elephant in the courtroom in many cases over many years. Judges have, historically, jealously guarded the credibility of the supposedly objective, impartial eyewitness. There have been so many convictions later determined to have been unmerited because the witnesses were honestly confused, that the highest court in Connecticut now approves expert testimony explaining how that happens.
I have some serious concerns about hearsay allowed at the level it was in Illinois v. Peterson. There are already dozens of exceptions to the rules of evidence that keep hearsay out, and it seems to me those should be enough. On the other hand, I agree with giving juries a better filter through which to sift the eyewitness testimony with which they are confronted.

1 COMMENT

  1. Hmm….

    I don’t know much about the Peterson case, but I have to agree with you sir. What ever you think about Peterson’s guilt or innocence, if they can convict on hearsay alone, or write law to do so just because they wanted to get this one guy, then all of us are at risk of the same.

  2. I agree with Lorenzo. Sure, after looking into this case, I don’t think I would want my wife or myself anywhere near that man. But allowing a guilty verdict on hearsay is quite scary, to say the least. Not to mention the fact of passing laws just to get a single conviction.

    Mas, would the issue of hearsay be something the US Supreme Court might make a ruling on? Seems like it could get out of hand if left alone for long enough…

  3. What scared me even more about the hearsey tilling was the fact that the main stream media portrayed it as a great turn if events and just rulling. Everything about Peterson stinks like crazy but this ruling affects us all, and not in a good way. In a compromise between good and evil, evil always profits.

  4. As one whose job involves science and technology, precision and accuracy are imperative. Yet I am often floored listening to others describe what they observed when I too was there. My perception is more on facts than on interpretations. It took years of training in the sciences to be able to push aside my personal thoughts about something until later, and instead focus on the how, where, and whats with the whys waiting until another time.

    I wonder if today is even worse that yesterday. With all the partisan bickering and need for truth sleuthing, I’ve noticed more and more people slipping in their take on the world when discussing almost anything. It’s as if minor distortions of reality are fine if it supports one’s political, religious views, or special interests.

    After a while, I sincerely doubt that many people can discuss something impartially for fear of personal idealogical blasphemy. And maybe that the point of the legislation. If you look hard enough or wait long enough, someone somewhere will already believe what you want.

  5. Right on with your analysis. I too will be surprised if there is not a reversal in the Federal proceeding based on 6th Amend, Confrontation Clause issue. By then he will have served many years and maybe Illinois will move on or charge him with the other wife’s case without the ex post facto change in law nonsense.

    I think the more evil/guilty a defendant appears to be, the more justice he should get so that the citizenry trusts the process. (OJ is an example. Got more than he deserved. However, he did get his just reward eventually, as he will likely die in the Nevada prison).

  6. Mas, here in Illinois the politicians, who beat their chest proudly after passing campaign legislation like this, are claiming that it will be a valuable tool for prosecutors to convict gang-bangers and other menaces to society. We already have user-friendly names for Megan’s law and Amber alerts (and even the Virginia Graham Baker Swimming Pool Safety Act), but setting aside my opinions of the case, how can there even be a facade of impartiality when everyone around here knew what “the Drew Peterson law” meant months before jury selection even started?

    It’s further proof that he who frames the terminology determines the battle lines for the fight — just like “assault weapon” and “high capacity magazines.” How could any defendant overcome the preconceptions attached to such a premise?

  7. Hearsay can only be used by the state to help convict a person with a compromised jury.

    We will allow those with evidence that should be allowed to convict you base solely on assertions of those speaking without proof? We are all doomed.

    We are back to your mama did this, and your sister did that………..all without proof but with the hatred of the public being enflamed by your speculative words to those frail and weak in soul willing to listen.

    Hearsay.

    As my son says, ” Kinda bullshit Dad, right?” I don’t have to say anything if you are right. Love you son.

  8. I’ve been a very reluctant court-ordered witness in my profession a number of times and my highest goal now is to avoid court rooms for the duration of my professional life. Truth is not the focus, it is a game for both lawyers, neither of whom hesitates to bully and try to embarrass well meaning citizens who find themselves ordered to appear. It is a very stressful experience, IMO. Lawyers always say that court is not like on television but it is actually very similar in my experience, where lawyers routinely abuse witnesses and misrepresent facts to confuse them. I believe that any miscarriage of justice that someone says happened in a court setting.

  9. I’d rather 100 guilty men out on the street than 1 innocent man locked up, and whomever might contribute to an innocent being locked up(judge, jury, prosecution) should swing in front of the court house until bloated and stinky to remind all others to get the facts straight…or else! If a person is found innocent after 20-years, or god forbid after an execution, there can never have been any evidence of their guilt in the first place, and all who took part should be held to account with their own lives. Liberty before fear. I can hear the numbskulls both liberal and conservative right now saying, “but what of our liberty from fear”. You can’t fix stupid.

  10. Peterson is a wretched example of humanity and an A + grade Scumbucket.

    It is not a crime, however, to be a scumbucket.

    There, I said it.

    I suspect he did kill one or more of his wives. His trial, unfortunately, was a travesty. There is that “ex-post-facto” thing, and that ” hearsay” thing. If we as a society do not 11111111111111b`e

    Very, very troubling.

  11. Sorry- previous comment interrupted by cat walking on keyboard…..

    now, where was I…..?

    If was as a society dont bend over backwards to ensure a fair trial for slime, it threatens each of our liberty.

    Very troubling, and I hope overturned quickly on appeal.

    Mas- you know what else is REALLY troubling?

    How could this narcissistic psychopath be a sworn police officer for so long? He is not fit to carry sewage, much less occupy a constitutional office of public trust. Why didnt his superiors fire him as ” unfit” years ago?

    That troubles me even more than the “hearsay” stuff.

    Any thoughts?

    Regards

    GKT

  12. If an American citizen can be executed by the state without need for trial, anywhere, at anytime, just seems to make sense to loosen up on this whole legal thing anyway. Heck we can save some serious money by avoiding all the courthouse technicalities lawyers love.

  13. Mas,
    There has long been a doctrine in American law that one cannot benefit in court by wrongdoing inside or outside of court. Thus, hearsay evidence is allowed to impeach witnesses who change their story on the stand, dying declarations are permitted despite being hearsay, present sense impressions are allowed into evidence, allowing expert witnesses to use hearsay during their testimony as to underlying facts and data, and not to say the least–not for the truth of the matter asserted response to hearsay objections.

    Furthermore, people should realize that any statement that they make to anyone (outside of privileged communications) can be introduced at trial if they are the defendant as the rules of evidence do not define prior statements by the defendant as hearsay.

    While the Illinois rules date from 2008, many other states permit testimony beyond the grave if the deceased were killed by the defendant to shut them up. The idea is that the defendant forfeits their right to confrontation by committing wrongdoing and the guarantee to a fair trial runs both ways and is not exclusively the right of the defendant. Defendants do not have a due process right to taint trials by wrongdoing themselves through jury tampering, abusive motions, etc. Using the statements of the missing fourth wife to convict Peterson on the third wife’s death runs right up to the edge and may well be unconstitutional in light of Crawford but is not the unprecedented change that your posting seems to indicate.

  14. One of the largest fights I ever had with my father was over a matter like this. There were eight of us in a group. Seven of the eight saw an event happen and remember it happening one way. I did not see the event; I just read the report after the fact. The seven all remembered it wrong. My dad asked me if I honestly though the seven who witnessed the event were all wrong and I, who never saw, it was right. After I left he looked it up and found that I was indeed right. The seven who witnessed the event all remembered it incorrectly.

    Memory is made up of shifting sand and the mind will remember something the way it chooses to. Worse, a skillful person can manipulate memory by implanting thoughts and changing how someone remembers a situation.

    Is anyone really surprised with the outcome in this case? The ruling parties in Illinois have historically changed the rules midstream to get done what they couldn’t do in a normal situation. They couldn’t get Drew for the death of his fourth wife so they reopened the case on his third wife, changed the rules, and got him for that.

    It is in the opinion of chair 2/3rds of the people have voted in the affirmative and the motion is adopted!

    I don’t know if you knew this or not Mas but Drew was a member of the local SWAT. He owned a sub 18” shotgun for room entry. In Illinois every firearm owner has to have a state issued Firearm Owners Identification Card (FOID) to legally posses any type of firearm. When they couldn’t prove he killed his fourth wife the powers that be had the state police revoke his FOID card without notice. Then they went and arrested him for possession of firearms without a FOID card and for having an illegal weapon (sub 18” shotgun).

    Chicago politics at its best.

  16. Mas, I’ll have to defer to your judgment, as you spend a lot more time in the courts then I do. However, I think we may be selling the jury short. I think the juries really and truly do their best to sift thru the evidence, hearsay etc. and reach a just verdict. The entire system is not perfect. But, are we going to just let Peterson loose because he was smart enough to plan his crime and had a friendly team of investigators look things over? I have been riding with an officer who was stopped for speeding and while looking for his driver’s license “accidently” let his badge show and got a wave off. If I had been driving I would have had a ticket in a New York minute. So I know these things happen.

  17. Sorry I had to cut my response short. We have had a confirmed killer loose in our area. Killed 1 female with 2 shots to head and fired 1 shot at police while escaping. Police have had dogs and helicopters out searching but having found anything yet. Can’t decide whether to get out the AR or just my G22 and double 12 gauge.

  18. This is the Doctrine of Forfeiture. If you caused the demise of the person who made the out of court statement then the jury gets to consider it for the truth of the matter asserted in the statement. Keep in mind that the jury instructions tell the jury they are free to give what ever weight they want to such evidence. Review your ex post facto analysis you will see it is incorrect. Ex post facto is to have some conduct that was once legal become illegal and you be prosecuted for the conduct while it was legal. This is an procedural law.

  19. FP186, a majority of the Supreme Court of the United States does not seem to agree with you. Look up their decision in Giles v. California.

  20. Mas,
    As a resident of Illinois, I am disgusted by this case. They turned our justice system upside down to convict this guy. We are now on a slippery slope ! I hope this bad joke is overturned on appeal. Hearsay has no place in the court room, shame on Will County !

  21. Massad: I get your concerns and understand the risks with hearsay. But, you have to admit, that in the case of Drew Peterson, you have: 1 dead wife, one missing wife, who told others, “Hey, if I ever go missing, Drew Said, he killed Kathlene and he would kill me too.” I think that’s pretty important considering, this guy was a cop, who used his badge and his knowledge, to commit and then cover up his crimes. That makes him a very dangerous man and I think, in this case, testimony from a missing wife, hearsay or not, is justified!

    I know, having been a Reserve Deputy for many years, that police officers take real offense to crimes committed by other cops. I think there was a real concern that Drew Peterson was a threat to the very community, he swore to protect.

  22. “This is the Doctrine of Forfeiture.”
    Doesn’t this/wouldn’t this require that the defendant be found guilty of killing the potential witness? A separate trial held on that charge before the first trial could continue.