Wednesday, February 16, 2011

Drew Peterson: Statement of Facts versus Hearsay Law

Drew Peterson is awaiting trial for the murder of Kathleen Savio, his third wife. The State in this case is working on the admittance of "hearsay testimony." Tomorrow the issue will be brought up again in a Will County court house. News cameras will also be covering the hearing.

Drew Peterson's rein of abuse has spanned over 30 years. Stacy Peterson, the fourth wife of Drew Peterson, is now a missing person case. Her statements to police at the time of Kathleen's death in my opinion are an important factor in this case. And yet, frankly, the arguments do not make sense as it relates to certain statements while Stacy was alive that should be allowed when Peterson goes to trial for the murder of Kathleen Savio. My question is how does this go to hearsay?

What is troubling to me, the attorney Harry A. Smith who represented Kathleen Savio during the divorce and then later met with Stacy Peterson for a divorce consultation just a few days prior to her disappearance. As an officer of the court wouldn't his statement of facts also be entered on the record, for both women?

Kathleen Savio sought every legal remedy in her situation. From begging the State's Attorney's office to help her-to going to court for an order of protection. This process included Kathleen going before a judge swear to the facts that he was trying to kill her, in a court of law where she was ultimately granted an order of protection. Does this also not go to Kathleen speaking in her own words as admissible fact during the trial?

Hearsay is an out-of-court statement "offered for the truth of the matter asserted" and is not subject to cross-examination, typically because the declarant or speaker is unavailable. This applies to Stacy Peterson because she is not "available." Such statements are deemed unreliable because of the obvious fact that they can easily be fabricated and can not be tested through crossexamination.

One basic way to get around hearsay is to seek admission, not for the truth of the statement itself, but for another highly relevant purpose. For example, let's say I am charged with intentionally shooting my daughter's boyfriend (which is not beyond the realm of reason) while the two of them are harmlessly playing tie-up. Prior to bursting into the room and firing, I was told by her ex-boyfriend that the new guy was in the process of raping her. My defense is not intentional murder, but, rather, manslaughter because I believed the ex, who has since fled to Costa Rica and is unavailable at trial. Here I would offer his statement of rape, not because it was true, but because of the effect it had on my mental state, a very relevant fact in the case. Again, I am not offering it for its truth and therefore whether it was fabricated is not in issue. Whether the statement was made and whether my response was reasonable (based upon my credibility) can all be determined by the trier of fact at trial because I, not the ex, would be subject to cross-examination. In any event, statements can be admissible solely for their impact upon the listener (if relevant in a case) and not for the truth of the statement.

This approach should be very relevant to the statement Anna Domain (Kathleen Savio's sister) could testify to, "that Kathleen asked her to care for her kids." This is dynamite. Not offering it for the truth that Peterson said he wanted to kill her, but for the independent impact it had on her and her mental state to seek care for her children. Anna Domain could testify to her observations regarding Kathleen's credible belief that she needed to secure care for her kids because she was going to die soon. This really should have tremendous impact on the State's case, assuming Anna Domain is well prepared on the stand. And fear is hearsay with no subsequent act reflecting impact on her mental state.

Now for the exceptions, which have literally swallowed up the general rule. Since the beginning of time, Courts have recognized certain fact patterns that contain such inherent elements of reliability that they overcome the need for cross-examination. All of this is based on a notion of getting all relevant information to the jury that is subject to a prejudice in the analysis of the defendant. For the State this stuff is worth fighting over because it usually means game over for the defendant. Certain fact patterns below have crystallized into exceptions.
  • Dying Declaration - declarant unavailable says just before dying to witness "Mr. X shot me." This is admissible based upon the notion that people who are dying do not typically have a motive to lie. Witness will testify as to demeanor of declarant.
  • Excited Utterance - declarant screams "the plane is going to crash into the house" and witnesses doesn't see the plane. Here admission is based on the fact that when people are experiencing a startling event under stress they don't have time to fabricate.
  • Present Sense Impression - this is the same as above, except the witness also experiences the same event as the declarant, and therefor the declarant's statement is relevant.
The exception used the most by prosecutors, and the one that is highly relevant for Peterson purposes, is a Statement Against Interest. For example, if I told you that I "did dope and shit," the statement would be admissable based on the theory that people do not make up highly negative evidence against themselves, especially facts that would subject them to criminal prosecution.

This is highly relevant for Stacy's statements to Pastor Neil Schori and Mike Rossetto that she provided an alibi, because it shows that she was willing to obstruct justice at Peterson's direction regarding Kathleen. Now maybe during the admissibility hearing the witnesses were weak on the statement, or just did not provide enough detail regarding the circumstances of the meeting with Stacy to overcome the highly prejudicial impact of the statement.
I realize when this was written it was intended for the general public. Each time I come across these words I think of the evil one individual has caused to many lives. In my opinion, Drew Peterson multiplied his evil rein during 3 decades. Two innocent lives lost. That is not hearsay, but fact.

"The ultimate weakness of violence is that it is a descending spiral, begetting the very thing it seeks to destroy. Instead of diminishing evil, it multiplies it. Through violence you may murder the liar, but you cannot murder the lie, nor establish the truth. Through violence you may murder the hater, but you do not murder hate. In fact, violence merely increases hate. So it goes. ... Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness: only light can do that. Hate cannot drive out hate: only love can do that."- Martin Luther King

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Susan Murphy Milano is with the Institute for Relational Harm Reduction and Public Pathology Education. She is an expert on intimate partner violence and homicide crimes. For more information visit She is the author of "Time's Up A Guide on How to Leave and SurviveAbusive and Stalking Relationships," available for purchase at the Institute, and wherever books are sold. Susan is the host of The Susan Murphy Milano Show, "Time's Up!" on Here Women Talk is a regular contributor to the nationally syndicated The Roth Show with Dr Laurie Roth

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