Friday, November 21, 2008


Yesterday, the Illinois General Assembly unanimously passed a bill that alters the common law hearsay rule in First Degree Murder prosecutions. This is a dramatic step. I have often written that the law's main purpose is neither justice nor fairness. But evidence rules such as the prohibition against hearsay are one example of the law's concern for just results. I have also written that the common law generally reflects chauvinistic, outdated values that do little but protect property interests against those with less property. Yet the common law gave us the hearsay rule to ensure that no one loses their life or their property without strong, empirical proof. The hearsay rule protects justice because it is a safeguard against bad evidence. Without it, people could go to prison on fabricated testimony. People could lose their liberty without a chance to challenge the person who spoke out against them. This is intolerable in a society dedicated to liberty under law.

Law concerns only body and property. True, these may not be the only important things in human existence, but we gain insights into a government's character by evaluating how it treats the bodies and property of its citizens. Both the English and American systems profess respect for bodily liberty and integrity. To that extent, their legal systems developed evidence rules that indulge every ambiguity in favor of the person who stands to lose his bodily liberty. England enshrines this principle in Magna Carta: "No man shall be executed, imprisoned or otherwise disseized but by the law of the land." America picked up this ideal in the Fifth and Fourteenth Amendments, namely that neither State nor Federal governments may deprive a citizen of "life, liberty or property without Due Process of law." These two principles reflect the same core idea: That government may not take away a person's life, bodily liberty or property without affording him a relatively fair process under law. While "fair process under law" may often be less than perfect in practice, the principle is a sound one. It sets an aspirational standard that expresses respect for the individual in his confrontation with government power.

Evidence rules developed in England in order to provide "fair process under law" prior to adverse government action against an individual. Before government could condemn a man, it had to show that the man violated the law by convincing sensory evidence. To do this, it had to bring in the best facts. People believe what they directly see; they are much less likely to believe something reported to them by a third-party. This is pure "common sense." One much more readily believes that a man stole an apple if one sees the man surreptitiously taking an apple from a cart than if one heard from a jealous neighbor that he took the apple. The common law recognized this by enforcing the hearsay rule. At common law, the court refused to even consider statements made outside the courthouse if they were offered to prove the truth of the matter asserted. Without going into excruciating detail, the common law carved out a great many exceptions to this general ban, but the principle itself is simple and just: You cannot take away a man's liberty by presenting a witness who simply recites what he heard from a person who is not in court. After all, how can the accused man challenge a statement when the speaker is not there? The witness could simply invent what he heard. Invention is no basis to send a man to prison or--worse--put him to death. Such a result would contravene the very spirit of "fair process under law" that Magna Carta and the Constitution both intended to protect.

But Illinois decided it would "relax" the hearsay rule in First Degree Murder cases. In its new legislation, the General Assembly declared that hearsay statements only by a murder victim may be considered against the Defendant if there is a "likelihood" that the Defendant killed the victim in order to prevent her testimony. This undermines the very purposes that animate the hearsay rule. It allows a jury to convict a man for murder based upon a dead person's statements to a third party. Obviously the Defendant cannot challenge the dead person's version of events. Consider what mischief this could cause. For example, in a murder prosecution, the State may present the testimony of the victim's mother--who is biased and hostile to the Defendant--to say her daughter told her a week before her death: "My husband wants to kill me." At common law, this statement is pure hearsay if it is offered to prove the Defendant either killed or had a motive to kill his wife. There is no way the Defendant can challenge the accusation because his wife is dead. Yet under the Illinois law, this statement may be used to condemn the Defendant. He could even face the death penalty on this evidence.

Defendants have a categorical right to challenge the evidence presented against them. No matter how much we may "think" a murder Defendant committed the crime, our Constitution requires much more than mere intuition to take away his life or liberty. They must be allowed to challenge adverse testimony face-to-face. U.S. Const. Amd. 6. A famous evidence scholar wrote: "Cross-examination is the greatest legal invention for the discernment of truth." Yet under the new Illinois hearsay rule, Defendants will be forbidden from applying that invention. They must sit helplessly by while witnesses recite the victim's statements. By the same token, witnesses will be free to invent, embellish and fabricate the "victim's words" as much as they wish. True, a good defense attorney could undercut the witness' recollection of the victim's words, but this is modest recompense for the damage such statements can do. The common law had very good reasons for excluding hearsay; and the Illinois law brings them disturbingly back to the light.

I am quite confident that the Illinois law will not survive constitutional scrutiny. Aside from technical constitutional violations, the law squarely arouses a sense of unfairness. You don't have to be a lawyer to know that hearsay is usually extremely unreliable, and it is doubly problematic to think that Illinois now allows its use to justify convictions for murder. Hearsay is inherently suspect. It borders on the absurd to consider that Illinois wants to allow it in the most serious criminal prosecutions, but not others. This differential treatment presents separate constitutional problems under Equal Protection principles. Specifically, a legislature must have "rational basis" for allowing hearsay in prosecutions for one crime, but not in others. Is it rational to allow victim hearsay in First Degree Murder cases, but not Second Degree Murder cases? If the State has an interest in convicting killers, it should allow hearsay in both situations, yet it selectively targets only one. Beyond that, hearsay lends itself to fabrication. To rest a conviction on fabrication would be to deprive a man of liberty without "fair process under law."

Illinois' law makes further constitutional missteps. In 2004, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004). In that case, the Court concluded that the Sixth Amendment forbids any court from considering a statement made by an "unavailable witness" for "testimonial reasons" if the Defendant had no prior opportunity to cross-examine the speaker. "Testimonial" statements mean statements made with a reasonable expectation that the statement would be used in a criminal investigation or prosecution. Classic "testimonial" statements include statements made to police, detectives, prosecutors and other "law enforcement professionals." The Illinois law places no limitation on the "type of listener" to whom a murder victim makes a statement. In Illinois, a police officer may testify: "The victim called me 4 days before the murder and said: 'My husband is going to kill me soon.'" Any reasonable person would feel that such a statement would be used in a subsequent criminal proceeding. The Defendant had no prior opportunity to cross-examine it. Indeed, it may be pure fabrication. Obviously the victim is dead and she is now "unavailable" as a witness. Under Crawford v. Washington, the statement violates the Sixth Amendment. Yet Illinois now presumes to admit such statements.

I rarely defend legal technicalities. But when legal procedure operates to defend individual liberty against governmental intrusion, I am a vigorous advocate for the individual. Illinois' new hearsay rule should shock anyone who cares about limitations on governmental power. As much as I ridicule the common law, I am thankful that it has been wise enough to ban hearsay as a basis for condemning people to imprisonment or death. Illinois' new hearsay rule denies a Defendant the right to challenge evidence arrayed against him. It also provides an opportunity for vindictive witnesses to fabricate a dead person's words in order to convict the Defendant. While the law may not always provide fairness, the hearsay rule is an instance when it does. To undercut the hearsay rule is to introduce a whole new dimension of unfairness into the already unfair confrontation between individual and State in criminal prosecutions. I am an unabashed theorist; I care about fairness and justice. The hearsay rule is a procedural mechanism that protects both. To that extent, I oppose any legislative attempt to reduce those protections.

Every government wants to enforce its criminal laws and convict the guilty. But we must never allow its zeal for convictions to dismantle the constitutional protections that shield us from brute government power. If we allow even one deviation, we set a precedent for further erosion. When that happens, we will be hard pressed to stop the government from assuming more and more tyrannical ways.

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