The Purpose-Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing

Colin Miller*

Introduction

Under the doctrine of forfeiture by wrongdoing, a party who successfully engages in conduct designed to render a prospective witness unavailable at trial forfeits his objection to the admission of hearsay statements made by that witness. Typically, this forfeiture doctrine applies in the witness-tampering context, with a defendant on trial for some crime (e.g., robbery) intentionally procuring the unavailability of a prospective witness against him at that trial, resulting in forfeiture. But does the doctrine of forfeiture by wrongdoing then apply at the defendant’s trial for the wrongdoing that resulted in the witness’s unavailability (e.g., at the defendant’s trial for murdering the witness)? In other words, is there a transferred intent doctrine of forfeiture by wrongdoing under which the intent to render a witness unavailable at trial A can transfer to trial B? This essay argues that there is indeed a transferred intent doctrine of forfeiture by wrongdoing.

On September 6, 2012, a jury convicted Drew Peterson of the murder of his third wife, Kathleen Savio.¹ Media accounts of the verdict indicated that jurors were primarily swayed by the admission of hearsay statements by Savio as well as those by Peterson’s fourth wife, Stacy Peterson, in a trial that otherwise consisted largely of circumstantial evidence.² Numerous stories reported that the prosecution introduced these hearsay statements pursuant to “Drew’s Law,” a statutory codification of the common law doctrine of forfeiture by wrongdoing that the Illinois legislature enacted solely for purposes of the Peterson prosecution.³

These stories were inaccurate. Ironically, while the Illinois legislature created Drew’s Law to make it easier for the Peterson prosecution, that law, codified in 725 ILCS 5/115-10.6, made it more difficult to admit hearsay statements than its common law counterpart.⁴ Under both versions, hearsay statements by a declarant are admissible against a party who intended to, and did, procure the unavailability of the declarant at trial, but Drew’s Law also requires that the statements be reliable.⁵

In the buildup to the Peterson trial, the Circuit Court, Will County, deemed several of the statements made by Peterson’s third and fourth wives inadmissible under Drew’s Law because they were insufficiently reliable.⁶ The Appellate Court of Illinois, Third District, however, reversed, finding that Drew’s Law neither trumped nor supplanted the common law doctrine of forfeiture by wrongdoing, which applied regardless of the reliability of the statements.⁷

Therefore, the court impliedly deemed the subject statements admissible under the transferred intent doctrine of forfeiture by wrongdoing. The doctrine of forfeiture by wrongdoing typically applies in the witness-tampering context: When a defendant on trial for some crime (e.g., robbery) intends to and does procure the unavailability of a prospective witness against him at that trial, the prosecution can admit the witness’s hearsay statements at that same trial (the robbery trial).⁸

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