Tuesday, January 19, 2010

Chicago Criminal lawyer is shocked by the attempts to shoehorn the Constitution in order to get the "bad guys"

This Chicago Criminal lawyer has posted here, here, and here about the systematic undoing of the Constitution. Folks, we have a real doozy on our hands with the Illinois law that permits hearsay testimony if the witness is now dead. In case you missed it, many refer to the law as "Drew's Law".

Hearsay is a legal concept that bars testimony given by a witness who relates information without personal knowledge of that information. For example: My friend tells me he was robbed by Santa Claus. In that instance, I'm not offering any information about the robbery except what my friend told me. There you have it, Santa Claus' lawyer would object to my testimony and that objection would be granted by the court.

The reason we have traditionally prohibited hearsay is because under our Constitution the accused has a right to confront those doing the accusing.

Sometimes, because hearsay is impermissible, with some limited exceptions, the government will not be able to prove their case against the accused beyond a reasonable doubt. But in this case, Illinois legislators were not going to let a little thing like the Constitution thwart the government in meeting its legal burden.

A judge in Joliet heard secondhand testimony today from Kathleen Savio — six years after her mysterious death.

He told her nothing she could say or do would make her safe,” said Issam Karam, who worked with Savio at a Romeoville graphics company in late 2003 when the confrontation allegedly occurred.

Karam testified that, after Savio described how her former husband threatened her, she showed Karam a bruise on her arm from the encounter.

Will County prosecutors are trying to win a judge’s permission to use so-called “hearsay evidence” that they say links the 56-year-old former Bolingbrook cop to the March 2004 bathtub-drowning death of Savio, his third wife.

A new state law enacted in 2008 makes it easier for prosecutors to use statements from victims who allegedly were killed to prevent them from testifying against their attackers.

Here's the law referenced in the article.

(a) A statement is not rendered inadmissible by the hearsay rule if it is offered against a party that has killed the declarant in violation of clauses (a)(1) and (a)(2) of Section 9‑1 of the Criminal Code of 1961 intending to procure the unavailability of the declarant as a witness in a criminal or civil proceeding.
(b) While intent to procure the unavailability of the witness is a necessary element for the introduction of the statements, it need not be the sole motivation behind the murder which procured the unavailability of the declarant as a witness.
(c) The murder of the declarant may, but need not, be the subject of the trial at which the statement is being offered. If the murder of the declarant is not the subject of the trial at which the statement is being offered, the murder need not have ever been prosecuted.
(d) The proponent of the statements shall give the adverse party reasonable written notice of its intention to offer the statements and the substance of the particulars of each statement of the declarant. For purposes of this Section, identifying the location of the statements in tendered discovery shall be sufficient to satisfy the substance of the particulars of the statement.
(e) The admissibility of the statements shall be determined by the court at a pretrial hearing. At the hearing, the proponent of the statement bears the burden of establishing 3 criteria by a preponderance of the evidence:
(1) first, that the adverse party murdered the
declarant and that the murder was intended to cause the unavailability of the declarant as a witness;
(2) second, that the time, content, and circumstances
of the statements provide sufficient safeguards of reliability;
(3) third, the interests of justice will best be
served by admission of the statement into evidence.
(f) The court shall make specific findings as to each of these criteria on the record before ruling on the admissibility of said statements.
(g) This Section in no way precludes or changes the application of the existing common law doctrine of forfeiture by wrongdoing.

There is no question in my mind that a court that permits this type of hearsay exception will find itself appealed.

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