As expected, the concept of “hearsay” has taken center stage at the Peterson trial with the victim’s sister being allowed, over defense objections, to testify that the victim had said she was afraid Peterson would kill her and make it look like an accident. Oversimplified, hearsay statements are second-hand statements used as proof of facts stated therein, and they’re inadmissible as such, except in certain limited circumstances.
For example, if I had interviewed a friend of Casey Anthony prior to her trial, and if the friend had told me that Casey’s mother Cindy had once yelled at Casey, “You’re a horrible mother!” I would not have been called as a witness at Casey’s trial. What the friend had told me would have been hearsay, and my second-hand testimony about it would not have been admissible.
But the friend might have been called as a witness at Casey’s trial. What the friend had heard first-hand probably would have been admitted into evidence, but only for the purpose of proving that Cindy was angry at Casey over a parenting issue on that occasion – not, however, for the purpose of proving the content of the statement, that Casey was actually a horrible mother.
There’s a good reason why we generally don’t allow hearsay to be admitted as evidence in criminal trials – the Constitution. Defendants have the Constitutional right to confront their accusers – in other words, to have anyone who implicates the defendant in the commission of a crime do it on the witness stand, where the defendant (usually through defense counsel) can question the reliability of the testimony.
In the Peterson case, for example, prosecutors want to introduce statements that Peterson’s missing fourth wife allegedly made to her pastor, admitting having lied to police about Peterson’s presence in their home on the night his previous wife (the victim in the current trial) died. Given that wife #4 isn’t available to testify in person about what, if anything, she did to help her husband cover up the possible murder of wife #3, if the pastor testifies about what wife #4 allegedly told him, for the purpose of proving that Peterson wasn’t at home with wife #4 on the night of wife #3’s death, that’ll be hearsay.
(And an interesting aside: Before the hearsay issue is even raised in that instance, the judge will have to consider whether the pastor should be allowed to violate the privilege that normally would prevent him from disclosing anything that wife #4 told him in the context of a clergy-penitent conversation, and ironically, her husband, Peterson, may try to assert that privilege on wife #4’s behalf!)
Sometimes, however, hearsay is admitted into evidence, if it fits one of the limited exceptions that have been carved into the law over the years. Interestingly, one of those exceptions is a situation in which the defendant did something to make the original speaker unavailable to testify. To invoke that exception, the prosecution would have to argue that the defendant, Peterson, rendered wife #4 missing, and therefore unavailable to testify, but keep in mind, that hasn’t been proven – in fact, he hasn’t even been charged in connection with her disappearance.
Another hearsay exception involves statements that are against the best interests of the persons making those statements. For example, a prosecutor could argue that the statement allegedly made to the pastor by wife #4 is reliable and should come into evidence because she essentially admitted to a crime – helping her husband obstruct justice – which she’s presumably unlikely to have admitted unless it was the truth.
There are several other hearsay exceptions, including “excited utterances” (e.g. a woman screaming “Get away from me, Drew!”) and “dying declarations” (e.g. a dying victim telling a 911 operator, “My husband hit me in the head”). Stay tuned for multiple additional attempts by the prosecution to introduce hearsay evidence into the Peterson trial. In each such instance, listen for the defense to object, for the prosecution to then argue that a particular legal exception applies, for the defense to argue that it doesn’t, and for the judge to rule, as he has said he will, statement-by-statement, on each statement’s admissibility.
P.S. Remember the executive who was convicted earlier this year, after attempting a bogus insanity defense, of murdering a female employee’s husband by shooting him in broad daylight in front of an Atlanta daycare center? Well, guess what? The employee, the “grieving widow,” who maintained throughout the trial that the shooter, her former boss, had been romantically obsessed with her but that she had never reciprocated his affection, has now been charged as a co-conspirator in the murder. Surprise, surprise (not)!