The Drew Peterson Case: An Illustration of Hearsay Evidence in Illinois

It was a compelling case that captured the attention of a nation: did Chicago police veteran Drew Peterson kill his ex-wife Kathleen Savio? Peterson's fate rested in the hands of 12 jurors and their understanding of the law.

For the final jury holdout, Ron Supalo, it all came down to damning hearsay statements that seemed to link Peterson to the murder.

But wait — isn't hearsay inadmissible in a court of law? If you're confused about hearsay, you're not alone. Anyone who's ever watched a legal procedural show has seen a too-handsome criminal defense lawyer leap to his feet to object to hearsay evidence. But seeing it on TV and understanding hearsay in a deeper sense are two different things. The prohibition against hearsay evidence, and the exceptions that allowed it into the Drew Peterson case, are important to laypeople and law professors alike.

The Basic Definition Of Hearsay

The legal definition of hearsay is an out-of-court statement used to prove the truth of the matter asserted. If the statement is being offered to prove anything other than its own content, it is not hearsay. In many instances, hearsay takes the form of a witness testifying in court as to what someone else said to the witness, although hearsay can be in writing or in any other format that is testimonial in nature.

Hearsay is not an easy concept to grasp, but an example can be a helpful illustrative tool. Imagine "Dana" takes the stand as a witness in a murder case, and in response to the prosecuting attorney's question, says, "Jake told me he went parasailing last weekend." If Jake's statement as related by Dana is being used to prove that Jake went parasailing last weekend, it is inadmissible and the defense attorney may object to it as hearsay.

However, what if Jake is in fact an old man confined to a nursing home, and the statement is not being used to prove that he actually went parasailing, but to show that Jake is senile? Under these circumstances, the statement would not be hearsay because it is not being used to prove its own literal content, and is therefore admissible.

Hearsay Exceptions, And How They Played Into The Drew Peterson Case

As a general rule, hearsay is not admissible at trial. However, a range of exceptions may allow hearsay to be offered as evidence.

The traditional prohibition against hearsay is based on the assumption that out-of-court statements are unreliable (out-of-court statements are not made under oath, and a jury does not get the chance to judge the credibility of the speaker). Therefore, many exceptions to the general hearsay prohibition are justified because certain circumstances tend to indicate reliability. For example, there is an exception to the hearsay rule for regularly kept business records, because businesses have incentives to keep accurate records. Hearsay exceptions also exist for public policy reasons; for instance, a witness's prior statement that is inconsistent with the testimony he or she is currently offering is written out of the definition of hearsay in order to prevent perjury.

In criminal cases, there is also a constitutional dimension to hearsay. The Sixth Amendment gives criminal defendants the right to confront witnesses; since a hearsay statement is made out of court, there is no opportunity for the defendant's criminal defense attorney to cross-examine the witness, and thus no confrontation. This means hearsay statements are harder to get into evidence even via the traditional hearsay exceptions when they are used against a criminal defendant.

So how did hearsay get before jurors in Drew Peterson's criminal case? Back in 2008 when the Drew Peterson case was in its infancy, the Illinois legislature created a new hearsay exception (dubbed "Drew's Law") that permitted hearsay statements into evidence if they were sufficiently reliable and were made by someone who was more likely than not murdered by the person being prosecuted. However, in upholding the hearsay statements used against Peterson (which were made by his now-deceased third and fourth wives) an Illinois appellate court did not even have to rely on Drew's Law. Instead, the court used the common law doctrine of "forfeiture by wrongdoing," which allows for the admission of the same types of statements without any showing of reliability under the theory that a defendant gives up the protections of the hearsay rules and the Sixth Amendment confrontation clause by wrongfully causing the people who made statements to be unavailable as witnesses.

Forfeiture by wrongdoing has long been an exception both the rule of evidence against hearsay and the Sixth Amendment right to confront witnesses. It is applicable in a variety of circumstances, any time a party intentionally or wrongfully caused the maker of a statement to be unavailable to testify in court. The policy behind forfeiture by wrongdoing is that a person should not be allowed to benefit from causing a witness to be unable to testify.

Using Hearsay Rules To Your Advantage In Your Own Criminal Case

The Drew Peterson case shows how hearsay statements can make or break a case. If you've been charged with a crime, it is important to retain an experienced criminal defense attorney who can keep damaging hearsay statements out of evidence while simultaneously working to take advantage of hearsay exceptions for those out-of-court statements that could help win your case. Talk to a Chicago criminal defense attorney today to learn more about hearsay evidence and what it could mean for your case.