Hearsay Evidence

I wrote the following to explain ‘‘Hearsay” evidence such as what was used in the case against Drew Petersen.  This was written for Gerasimos, my deaf neighbor who writes questions for me to answer.  He had written to me that if ‘‘Hearsay” evidence could be used against Drew Petersen, then if the neighbors hated him the Courts could us ‘‘Hearsay” evidence against him.  This is a part of a letter I wrote in response. 

Gerasimos, you misunderstand the entire concept of ‘‘Hearsay” evidence and I want you to understand it completely.  If the entire block of people hated you (which they don’t) they could NOT, under our judicial system, convict you of a crime - even if ALL of the people swore that you did it – whatever that ‘it’ is.  So rest easy, ‘‘Hearsay” is not very easy to get into Court. 

First you are going to have to deal with a history lesson from me.  99% of our judicial system is based on the historical actions of Europeans.  Primarily we operate under the English judicial system.  That’s where you’re innocent until proven guilty.  The other system I know of is the French system where you’re guilty until proven innocent.  It’s important to realize that we copied our system from the English and in turn, they copied from us.  There are differences (partly the idiotic wigs and costumes they wear) and their system is NOT written down.  They have no written Constitution as we do and their laws are built on ‘common law’.  ‘Common law’ means simply that these are laws that were made by rulings and actions over a long period of time rather than anything that may have been written down. 

Remember that until we threw England out of our country, self-government by any population was non-existent.  Yes, the Greeks in Athens had had a type of self-rule over 2,000 years earlier but only for a few and only in one of the city-states.  The Greeks ended up losing their self-governance when Alexander the Great continued the work of his father, Phillip, and gathered all the Greek city-states under one ruler – himself.  By the way, Alexander the Great was Macedonian, not Greek.

The Romans tried self-governing for a few hundred years.  The Romans adopted a system that kind of copied the Greeks but they added things like a Senate that was elected by the people and 2 Consuls to share the top governing spots.   Then Caesar Augustus declared himself a tyrant (which meant something not bad at the time – not bad but also not good). 

In those times (before and after Christ was born) the rulers themselves would make the laws, decide the laws when someone complained (not too loudly I’m sure) and then carry out whatever the decision was from the ruler.  The best explanation I can show is the story we’ve all heard from the Bible about Solomon and the baby – where 2 mothers wanted the same child so Solomon decreed that the baby be cut in half so each mother could have a half a child.  The real mother’s love overcame her and told Solomon to give the baby to the other women because she wanted the baby to live.  Wise Solomon decided she was the real mother and gave the child to her.  The fact is, however, that as the human population grew and states became nations it was impossible for the rulers to handle all the disputes between citizens. 

Under both the Romans and the Greeks the judicial system (as it is in the modern world) came into being.  There were special people chosen (usually by the rulers) to decide cases that had to be sorted out – not only murder but property and damages.  There were judges in most counties and, in fact, the Arabs made huge contributions in the areas of law and justice in the 7th and 8th centuries AD.  But it was the Romans who made the most difference in American law and justice.  The Romans (unlike President Bush in 2003 Iraq) were smart enough to leave most of the civil societies intact in the countries they conquered.  In what became England, Scotland, Wales and Ireland the law and justice was determined by tribal leaders.  These Gaelic tribes invented a system of having friends and families tell the leaders about the problems they were having (i.e. witnesses) and then the leaders would decide.  At some point the Gaelic leaders went a step further and allowed a bunch of friends and neighbors to ask questions of witnesses.  Thus began trial by jury.  Thus began ‘common law’.

This ‘common law’ is the basis of all our laws.  However, on top of ‘common law’, Americans added a written version of the way they wanted our justice system to work.  Skipping all the stuff about ‘checks and balances’, the written U.S. Constitution has a specific amendment that says a defendant has a right to face his accusers.  The Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him."  This would automatically eliminate any idea of ‘‘Hearsay” testimony.  However, as Glasgow (the Prosecutor who handled the Peterson case) pointed out – there are times that common sense and ‘common law’ can modify the U.S. Constitution.  The Peterson case one of those times. 

Even the very first U.S. Supreme Court under John Jay said that there are certain things in English ‘common law’ that must be retained – within limits.  That’s when the U.S. Supreme Court allowed in ‘‘Hearsay” evidence in very limited ways.  After the John Jay Court allowed limited ‘‘Hearsay” evidence, a federal law was enacted (804b) that lists very specific kinds of ‘‘Hearsay” evidence that can be used in criminal cases.  Illinois had those same kinds of ‘‘Hearsay” laws even before the Illinois general assembly added what is called the “Drew Peterson Law”. 

For centuries the ‘common law’ regarding ‘‘Hearsay” evidence worked its way into a very concrete idea – a defendant cannot be allowed to avoid prosecution simply because the defendant probably got rid of the person who said those things. In other words, the jury should be allowed to hear what the victim said to other people when there is a preponderance of evidence showing that the defendant was the person who prevented the victim from facing the defendant in open Court. 

I want you to put yourself in a very different position.  Don’t think of yourself as a defendant like Peterson.  Think of yourself like a victim.  Maybe you remember when (we think) your next door neighbor called the elder abuse hotline.  At that time you were the victim but let’s just say that instead of calling the elder abuse hotline, the neighbor came over to your house and set a fire that flashed into your bedroom and you died.  Hmmm…who could have set that fire?  There’s no real evidence but there is a lot of suspicion about who might have done it.  Maybe it was one of your kids…maybe your wife…maybe your neighbor.  

At this point, on your way to heaven (yes, I’m sure you’re heading up - not down) you want to scream, “I know who set the fire!!  It was my neighbor!!  I saw her set the fire but I couldn’t get out of the house fast enough!!”  But you are dead.  You (and as would your family and friends) want to be heard…from the grave, so to speak.  This is where ‘‘Hearsay” comes in.

Before you died you knew that your neighbor was very angry with you.  You told your wife that you are a little disturbed because you aren’t sure what the neighbor will do.  Your wife suggests that you should move into your Elmwood Park building instead of trying to be friends with your neighbor.   You tell her that you won’t move.  No stupid neighbor is going to force you out of the only house that you remember and where you raised your family.  I know you have a journal where you write down daily things so in that journal you write down that the neighbor is harassing you and you are somewhat afraid of her.  You told Miriam and John O’Malley that the neighbor is a menace but there’s nothing they can do simply because the neighbor told you that she hates you.  Your wife, daughter and other neighbor only heard you say that you were told.  There’s absolutely nothing any of them can do. 

Then the neighbor tells you that she wants you dead.  You don’t know what to do so you go to a Greek church and talk to the priest there.  You tell the priest that you are afraid that the idiot neighbor might do something stupid because of what she said.  You are sure she will kill you.  The priest tells you to go to the State’s Attorney or a lawyer to maybe get an Order of Protection against your neighbor.  So you get an Order of Protection against the neighbor.  However, the Order of Protection is simply a piece of paper and she lives right next door to you.  Now she’s getting really nasty and tells you that’s she’s gonna figure out a way to kill you.  

You call the police but Sgt. Peoples comes over and laughs at you!!!  “You are a big man even if you’re older than Methuselah.  How can a little woman hurt you?!” You come over to me and tell me about your other neighbor, about Sgt. Peoples and that you think she might do something to hurt you.  I’m a retired cop but I can’t help you too much.  I tell you to get a lawyer to file a civil suit against the woman and maybe she’ll back off.  The lawsuit would be based on the neighbor’s violation of your civil rights by harassing and threatening you in your home.  You talk to the lawyer and he says you can sue and he’ll be in touch with you.  Your neighbor figured out that you were going to sue her and, at the very least, just hiring a lawyer to defend herself will cost money.

A week later, your house is partly burned.  You are dead.  Your neighbor says she so sorry you died but she didn’t see anybody by your house – maybe it was an accident. 

Here’s the conundrum – you are dead, there’s no direct evidence about who did it and the only thing that can help catch your murderer are the people who heard you complain many times and in many ways that you thought the neighbor would hurt you.  So the solution is to just let the murderer go free because there’s no allowance for ‘‘Hearsay” evidence. 


The people who heard you must say to the authorities that there’s a single and specific person who could have hurt you.  That’s from where the word ‘‘Hearsay” comes.  These people who loved you and cared about you want you to have justice. They do say to the authorities what they heard from you. 

The fire investigators determine that the fire was set and an accelerant used.  Your death is a murder.  The police investigators find out that this person has no alibi for the time the fire is set.  They find out that this person bought a can of gas an hour before the fire.  The neighbor visits a different neighbor who had not spoken to you and that neighbor notices that the woman who had coffee with her the day after the fire, smelled like smoke and her hair was singed.  When the neighbor asks why her hair looks funny the woman says it was because she was singeing the feathers off a chicken for dinner the night before.  These are circumstances that would be difficult to explain away. 

But there’s a problem.  Before such ‘‘Hearsay” evidence is able to be used in Court it must be allowed via the Appellate Court.  There is a strong indication that even the state courts would bow to the federal law of 804b, promulgated in the early 1800s and updated periodically. 

It is those people who will present ‘‘Hearsay” evidence against the person who murdered you.  Would you feel sorry for the person who set the fire and killed you?   Would you prefer that anyone who heard you say you feared for your life be unable to say that to a jury of peers? 

This is one of the few ways that ‘‘Hearsay” evidence could be used in a criminal trial.

Filed under: Criminal Justice, Law

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