More On Hearsay

Some pedant (just kidding SS–it’s a good point) in comments pointed out that hearsay is often allowed in criminal trials and that is certainly true.  Wikipedia gives you the dumbed down version.

The particular bill Wilhelmi is putting forward is especially problematic though:

Sen. A.J. Wilhelmi (D- Joliet) has offered an amendment to the state’s code of criminal procedure, backed by State’s Atty. James Glasgow, that would allow hearsay testimony if the witness who made the statements was not available to testify in person because the defendant had a hand in that person’s absence.

Neither Wilhelmi nor Glasgow’s office would comment on whether the measure was inspired by the Peterson case, but the senator said the state’s attorney requested the amendment earlier this year. Glasgow’s office has been immersed in the investigation with a special grand jury since late last year.

Under the proposal, if prosecutors can convince a judge that the defendant, for example, bribed, threatened or killed a witness to prevent testimony, the judge could allow the statements the witness made to others to be heard in court.

Essentially this bill would require the Judge make a determination about the guilt of the person potentially under trial under these circumstances.  This can result in two things:

   1)  The hearsay is never admitted in trial because the judge cannot make such a determination

2) The admittance of such information is prejudicial towards a defendant because it requires a finding that the defendant was responsible for at least a portion of the crime the defendant is charged with….

Neither is a good result.  The law is not entirely crazy in terms of legal theory as making a witness unavailable is something that can allow hearsay, but in this case, the entire justification is the issue at question.