IN THE CIRCUIT COURT

OF THE TWELFTH JUDICIAL CIRCUIT

WilL COUNTY, ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, )

)
Plaintiff, )
)
v. ) No. 09 CF 1048
)
DREW PETERSON, ) The Honorable
) Stephen White.
Defendant. ) Judge Presiding.

OBJECTIONS TO DEFENDANT'S MOTION TO

DECLARE 725 ILCS 5/1I5-10.6 UNCONSTITUTIONAL

Pursuant to Illinois Supreme Court Rule 19 and 735 ILCS 5/2-408(c) (2008), the People of

the State of Illinois, by their attorneys Lisa Madigan, Attorney General of Illinois and James W.

Glasgow, State's Attorney of Will County, through his Assistant. John R. Connor. object to

defendant's challenge to the constitutional validity of725 ILCS SII 15-10.6 ('~he Act").

Introduction

Defendant Drew Peterson filed a motion seeking to declare the Act unconstitutional because

its hearsay exception purportedly violates the Ex Post Facto and Confrontation Clauses ofthe Illinois

and United States Constitutions. This challenge should be rejected because the Act violates neither

ex post facto nor confrontation right principles.

L. Rule 18 Requires This Court To Avoid Addressing The Constitutional Challenge If

Possible.

As explained below, defendant's two constitutional challenges to the Act clearly fail. But

if this Court were inclined to conclude otherwise, it should first confinn that some or all of the
hearsay statements offered by the State are admissible under the Act. l People ex rei. Birkett v.

Konetski, 233 lIl.2d 185, 196 (2009) ("[Clases should he resolved on nonconstitutional grounds

wherever possible and constitutional issues should be reached only as a last resort. ''); Ill. Sup. Ct.

R. 18 (among many findings that court must make before holding state law unconstitutional is that

''the rmding of unconstitutionality is necessary to the decision or judgment rendered, and that such

decision or judgment cannot rest upon an alternative ground''); see also People v. Hampton, 225

lIl.2d 238, 243-44 (2007); In re E.H., 224 lIl.2d 172, 178 (2006) (collecting cases). Thus, the

appellate court in E.H. improperly declared 725 ILCS 5/115-10 unconstitutional - because it

pennitted admission of hearsay statements in violation of the Confrontation Clause - without first

addressing the nonconstitutional question of whether the statements were admissible under the

statute. 224 lll.2d at 177-79. Likewise, here, while this Court could uphold the Act's

constitutionality to the admissibility hearing, the Court may not declare it unconstitutional before

first concluding that some or all of the statements are admissible under the Act.

fl. The Act Does Not Violate Ex Post Facto Principles.

Turning to the merits of defendant's motion, its ex post facto challenge fails for two,

independent reasons. First, the Act does not change Illinois law in any way that prejudices

defendant. Second, even ifit did, the Act is merely an evidentiary rule, and such rules are not subject

to ex post facto prohibitions.

The Will County State's Attorney's Office will present evidence in support of the
I

statements' admissibility at any hearing under the Act.

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 A. The Act Does Not Cbange lIIinois Law To Defendant's Detriment.

First, to violate the Ex Post Facto Clause of the U.S. or Illinois Constitution, a statute must

change the law in a manner that prejudices criminal defendants. Collins v. Youngblood, 497 U.S.

37,41 (1990); Weaver v. Graham, 450 U.S. 24, 29 & n. 12 (1981).' But the Act does not change the

law in any way that harms defendants. Before the Act, Illinois already recognized the common law

doctrine of forfeiture by wrongdoing as an exception to its hearsay rule. People v. Melchor, 362

IlI.App.3d 335, 345 (1 st Dist. 2005), vacated on other grounds by 2261l1.2d 24 (2007); see Michael

H. Graham, Cleary & Graham's Handbook of Illinois Evidence, § 804.13, at 878 (9th 00.2009)

(Melchor adopted the rule on forfeiture by wrongdoing as Ulinois law).

lndeed~ as a territory, a young State, and to the present day, Illinois has presumptively

adopted the English common law unless and until expressly repealed by the General Assembly. 5

!LCS 50/1; Su/pi! v. Matthews, 145 Ill. 345, 350 (1893) (citing 1 Pope's Laws, Ill. T., p.34 (for

territoryoflllinois), and Laws 1819, p.3 (passed hy first General Assemhly)). And that common law

has long recognized forfeiture by wrongdoing. Although federal law did not codifY the exception

until 1997, see Fed. R. Evid. 804(b)(6) advisory committee notes to 1997 Amendments, the United

States Supreme Court held in 1878 that a defendant who "voluntarily keeps . .. witnesses away [by

wrongdoing] ... cannot insist on his privilege" to confront those witnesses in court, Reynolds v.

United States, 98 U.S. 145, 158 (1878), and the Court traces the doctrine's English common law

roots to the Seventeenth Century, see Giles v. California, 554 U.S. - ' 128 S.Ct. 2678, 2688-91

(2008).

2 Illinois' ex post facto prohibition is in lockstep with its federal counterpart. See infra p.
8.

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 The lJIinois General Assembly acknowledged this common law history and confinned the

exception's continuing vitality by providing that the Act "in no way precludes or changes the

application of the existing common law doctrine of forfeiture by wrongdoing." 725 LLCS

5/115-10.6(g). If anything, the Act may be more protective than the common law's forfeiture by

wrongdoing exception, insofar as the Act requires the court to find "that the time, content, and

circumstances of the statements provide sufficient safeguards of reliability." 725 ILCS

5/115-10.6(e)(2); see Fed. R. Evid. 804(b)(6)(codi lYing forfeiture-by-wrongdoing doctrine withnut

reliability element); Davis v. Washington, 547 U.S. 813, 833 (2006) (noting that Fed. R. Evid.

804(b)(6) codifies common law doctrine); 2 McCormick on Evidence 176 (6th ed. 2006) ("Federal

Rule 804(b)(6) is unique among hearsay exceptions in admitting evidence without a guarantee of

trustworthiness"). And it applies only to cases where the wrongdoer used murder (rather than some

other means) to procure the witness' unavailability. See Reynolds, 98 U.S. at 158-60 (defendant's

refusal to explain location of witness, his second wife, satisfied forfeiture rule); People v. Stech/y,

225 1I1.2d 246, 277-78 (2007) (sufficient evidence to warrant full hearing on forfeiture because

defendant threatened to hurt victim ifshe reported abuse).

In short., defendant's ex post facto challenge fails at the threshold, for the Act lacks even the

most elemental feature of an ex post facto violation - it does not change existing law in any way

that banns defendant.

B. Evidentiary Rules Like The Act Are Not Subject To The Ex Post Fact Bar.

The Act would not violate ex post facto prohibitions even if it did change the law in a way

that prejudiced defendant's case, because defendant still could not satisfy the remaining element of

his ex post facto claim. The law is well settled that the constitutional bar on ex post facto laws does

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not implicate all criminal statutes that retrospectively apply to disadvantage criminal defendants, but

only a clearly defined subset of those statutes, which does not include the Act. Collins, 497 U.S. at

41; Weaver, 450 U.S. at 29 & n.12. In Calder v. Bull, the United States Supreme Court defined this

subset of criminal statutes that run afoul of the Ex Post Facto Clause when applied retroactively:

those that (1) criminalize fonnerly innocent conduct, (2) aggravate a crime, (3) increase a

punishment, or (4) alter the rules ofevidence to change the quantum ofevidence required to convict.

3 U.S. 386, 390 (1798); see also Carmell v. Texos, 529 U.S. 513, 521-25 (2000). New laws not

falling into one of these categories are considered "procedural" and do not implicate ex post facto

prohibitions at all, even if they increase the likelihood ofa criminal conviction. Collins, 497 U.S.

at 45; Dobber! v. Florida, 432 U.S. 282, 292-93 (1977). In short, tn establish an ex post facto

violation, a criminal defendant must show not only retrospective application and a disadvantage to

him, but also that the law fits within one of Calder's limited categories. Slrogner v. California, 539

U.S. 607, 611 (2003); Collins, 497 U.S. at 46; Malloy v. South Carolina, 237 U.S. 180, 183-84

(1915).

Defendant cannot make the latter showing here. He does not even try to fit the Act into one

of the first three Calder categories, but he does argue that it falls into the fourth. Def. Mot. at 18.

Defendant is incorrect. The United States Supreme Court has repeatedly affinned that this fourth

category is limited to changes in evidentiary rules affecting theomount ofevidence required to prove

guilt or innocence. Carmell, 529 U.S. at 524 ("whereby different, or less evidence, is required to

convict an offender"); Dobberl, 432 U.S. at 293 ("changed the proof necessary to convict"); Duncan

v. State, 152 U.S. 377, 382 (1894) ("change[d) the rules of evidence by which less or different

testimony is sufficient to convict"); see also People v. Ramsey, 192 m.2d 154, 156-58 (2000) (ex

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post facto violation in narrowing insanity defense and raising defendant's burden of proof regarding

it); Culbertson v. Commonwealth, 1]9 S.E. 87, 87-88 (Va. 1923) (no ex post facto violation in

pennitting fact to be proven in different way); People v. Dorff, 77 I1I.App.3d 882, 886 (3d Dis!.

1979) (similar). Accordingly, where "a statute ... changes the rules ofevidence after the indictment

so as to render admissible against the accused evidence previously held inadmissible," there is no

ex post facto violation. Beazell v. Ohio, 269 U.S. 167, 171 (1925).

While defendant alleges that the Act lowers the burden of proof and changes the quantum

of evidence required to convict, Def. Mot. at 16, the Act does no such thing. The beyond-a-

reasonable-doubt burden remains unchanged. See 720 LLeS 5/3-1 ("No person shall be convicted

of any offense unless his guilt thereof is proved beyond a reasonable doubt"); People v. Dolph-

Hosterter, 664 N. W.2d 254, 258 (Mich.App. 2003) (rules altering admissibility of evidence do not

concern whether admissible evidence is sufficient to convict, so rules' retroactive application is not

ex post facto violation). Nor does the Act modifY the quantum of proof required to establish the

elements of first degree murder, with which defendant is charged. See 720 ILCS 5/9-1 (a) (setting

forth elements); compare Carmell, 529 U.S. at 526-31 (discussing Sir John Fenwick's case,

involving elimination of substantive requirement that State prove high treason with two witnesses).

Rather, the Act concerns solely the admissibility of a particular type of evidence. And it is well-

established that a change in law regarding the admissibility of evidence at trial does not fit into the

fourth category because it does not change the ultimate quantum of proof required to convict.

Carmell, 529 U.S. at 546 ("[e]vidence admissibility rules do not go to the general issue of guilt, nor

to whether a conviction, as a matter of law, may be sustained").

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 Thus, for example, in Thompson v. Missouri, 171 U.S. 380, 381-82 (I 898), a pre-trial change

in law made it possible for the first time to admit evidence of defendant's handwritten letters to

compare with other documents linked to the charged crime. As in this case, there was no ex post

facto violation because the change in law did "nothing more than admit evidence ofa particular kind

in a criminal case upon an issue of fact which was not admissible under the rules of evidence as

enforced by judicial decisions at the time the offense was committed." Jd. at 387; see also Carpenter

v. Commonweolth, 654 S.E.2d 345, 348-50 (Va. App. 2007) (no ex post facto violation in retroactive

application of statute broadening state exceptions to marital privilege); Nooner v. Norris, 402 F.3d

801, 806-07 (8th Cir. 2005) (no ex post facto violation in retroactive application of statute allowing

admission of victim impact evidence at capital sentencing hearing); Neill v. Gibson. 278 F.3d 1044.

1053 (10th CJr. 2001) (same); Glendening v. Stale, 536 So.2d 212, 214-15 (Fla. 1988) (no ex post

facto violation in retroactive application ofstatute allowing admission of hearsay statements made

by child victims of sexual abuse).

Defendant thus cannot establish an ex post facto violation under the United States

Constitution. And the Illinois Ex Post Facto Clause, III. Const. 1970, art. 1. § 16. provides no greater

protection than its federal counterpart. Konetski, 233111.2d at 209. Thus, while Konetski described

the fourth category as "alter[ing] the rules of evidence making a conviction easier," id.; Def. Mot.

at 6-7. the Illinois Supreme Court was not purporting to expand the Calder requirements. On the

contrary. Konetski cited Ramsey. 192 fII.2d at 157, which in tum quoted People v. Shumpert, 126

TII.2d 344, 351 (1991), which in its very next sentence makes clear that "rules of evidence" refers

to rules sening the burden or quantum of proof. The complete quotation from Shumpert is: "We

have held that a law is ex post facto ... if it alters the legal rules of evidence to make conviction

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easier. Thus a law which decreases the degree of proof necessary to convict a defendant is ex post

facIO ifretroactive." Jd. (citation omitted). This second, explanatory sentence confinns that Illinois

applies the fourth category in a manner identical to federal precedent. J

Ramsey - a case on which defendant relies, Def. Mot. at 12, 17 - may be readily

distinguished. There, retroactive application of the amended law violated ex post facto principles

because it removed one prong ofthe insanity defense and raised defendant's burden ofproofto show

insanity. Ramsey, 192 UI.2d at 156-58. Here, in contras~ the Act does not alter any affinnative

defense or burden of proof- it merely changes the potential admissibility of one type of evidence.

And while defendant alleges that section 115-10.6 was arbitrary and vindictive legislation

drafted solely to aid prosecutors in his case, Def. Mot. at 3, 5, 16, 18-20, such an allegation does not

change the analysis. "[T]he constitutional inhibition of ex post facto laws was intended to secure

substantial personal rights against arbitrary and oppressive legislative action, and not to obstruct

mere alteration in conditions deemed necessary for the orderly infliction of humane punishment."

Malloy, 237 U.S. at 182. Calder defines which retroactive laws are "oppressive" for ex post facto

purposes. 3 U.S. at 390-91 (noting, shortly after outlining four categories, that not every law with

retroactive effect is an ex post facto violation, for, while some retroactive laws are "oppressive,"

others may 'justlY" be applied to benefit the community). Retroactive application of a statute is

"oppressive" in this context only if it fits within a Calder category. See Beazell, 269 U.S. at 171.

J Defendant claims that because ofits timing, Konetski was "more than likely aimed directly"
at the constitutionality of the Act in this case. Def. Mot. at 6-7. But Kane/ski concerned a different
issue - the constitutionality of a statutory amendment changing the minor's classification from a
sex offender to a sexual predator, 233 IIl.2d at 208 - so defendant's assertion is baseless. In any
case, as explained above, Konetski does not support defendant's position.

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 Because the Act does not fit into any Calder category, its retrospective application does not

violate ex post facto principles.

In. No Confrontation Clause Violation Results From The Admission Of Statements That
Are Either Non-Testimonial Or Subject To The "Forfeiture By Wrongdoing"
Exception.

Defendant's second argument is that the Act is unconstitutional under the Sixth

Amendment's Confrontation Clause. Def. Mot. at 20-28. But this argument fails on two,

independent grounds. First, at least eight of the nine offered statements clearly are not "testimonial"

and therefore do not trigger Confrontation Clause protections. Second, all statements are admissible

under the "forfeiture by wrongdoing" exception in any event.

A. At A Minimum, Statements Two Through Nine Are on-Testimonial.

The Confrontation Clause applies only to bar the admission of an absent declarant's out-of-

court, "testimonial" statements. Crawford v. Washington, 541 U.S. 36, 51-54 (2004). As the

Supreme Court explained in Crmlford, the Confrontation Clause "applies to witnesses against the

accused - in other words, those who bear testimony." and "[t]estimony, in tum, is typically [a]

solemn declaration or affirmation made for the purpose of establishing or proving some fact." 541

u.S. at 51 (internal quotation marks omitted). "An accuser who makes a formal statement to

government officers bears testimony in a sense that a casual remark to an acquaintance does not."

Id Accordingly, while prior testimony at preliminary hearings, grand jury testimony, testimony at

prior trials, and police interrogations are testimonial. id. at 68. "[s]tatements to friends and neighbors

about abuse and intimidation. and statements to physicians in the course of receiving treabnent" are

not. Giles, 128 S.Ct. at 2692-93; see a/sa /n re Rolandis G., 232 1I1.2d 13, 31 (2008) (testimonial

statements are "(1) made in a solemn fashion, and (2) intended to establish a particular fact," or more

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J
generally under circumstances where "the declarant is acting in a manner analogous to a witness at

trial"). The Confrontation Clause is not concerned with non-testimonial hearsay, about which States

are free to develop their own hearsay rules. Crawford, 541 U.S. at 68.

The threshold question, the~ is whether the statements that the People seek to introduce in

this case are testimonial, and at the very least statements two through nine are not. These statements

were made to people indistinguishable from the "friends," "neighbors," and "physicians" mentioned

in Giles: statement number two - Kathleen to a roommate; three and four - KatWeen to a fellow

student; five - Kathleen to a co-worker; six and seven - Kathleen to her sisters; eight - Stacy to a

friend; and nine - Stacy to a pastor. Accordingly, these statements are all non-testimonial. See, e.g.,

Bray v. Commonwealth, 177 S. W.3d 741, 744-46 (Ky. 2005) (declarant's slalement by pbone to

sister that defendant had been sining outside her house for awhile and she "feared for her life" was

non-testimonial); United Stales v. Franklin, 415 F.3d 537, 543, 545 (6th Cir. 2005) (declarant's

statement to friend inculpating defendant was non-testimonial), overruling on other grounds

recognized by Dorsey v. McKee, No. I :08-<:v-18, 2009 WL 1874182, at <9 n.3 (W.D. Mich. June

25,2009); People v. Griffin, 93 P.3d 344, 370, 372 n.19 (Cal. 2004) (stalementto friend al school

about defendant's sexual abuse of declarant was non-testimonial); People v. Garrison, 109 P.3d

1009,1011 (Colo. App. 2004) (declarant's statement to co-worker was non-testimonial); see also

State v. Maclin, 183 S. W.3d 335, 347 n.13 (Tenn. 2006) ("Numerous courts have delermined that

statements made to friends, family, or acquaintances, as opposed to a government representative, do

not constitute testimonial hearsay"), abrogation on other grounds recognized byStote v. Lewis, 235

S.W.3d 136, 143 (Tenn. 2007).

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J
 In addition, as the lIlinois Supreme Coun has further refined the point, statements to persons

not in law enforcement are testimonial only if, from the perspective of the declarants. the objective

circumstances would lead a reasonable person to conclude that the statements could be used against

the defendant. Ro/andis G., 232 U1.2d at 31. And such a conclusion is impossible regarding the

statements at issue here. Kathleen and Stacy did not make these statements to people who - as

mandated reporters or otherwise - were required to infonn the police. Stech/y, 225 1ll.2d at 301.

Nor were the conversations part of an effort to gather infonnation for future prosecution. Ro/andis

G., 232111.2d at 32. Those who heard these statements - friends, a co·worker, sisters, and a pastor

- would be far more concerned about the speaker's well-being than with pursuing a criminal

prosecution, and there is no indication that either Kathleen or Stacy anticipated that the statements

would be used in such a prosecution. See Stech/y, 225 Hl.2d at 301-02. Accordingly, at least

statements two through nine are non·testimonial, and as to these statements defendant's

Confrontation Clause challenge fails on this ground alone.

B. 725 ILCS 51] 15-10.6 Provides A Constitutional Means To Admit Testimonial

Statements By A Murdered Declarant.

Alternatively, the Act withstands constitutional challenge on under a long-recognized

exception to the confrontation right: forfeiture by wrongdoing. "The Constitution gives the accused

the right to a trial at which he should be confronted with the witnesses against him.... [B]ut ifhe

voluntarily keeps the witnesses away [by wrongdoing], he cannot insist on his privilege." Reyno/ds

v. United States, 98 U.S. 145, 158 (1878). For example, in a relationship involving domestic

violence culminating in murder. testimonial hearsay statements by the victim could be admissible

under the forfeiture exception given sufficient evidence that the defendant isolated, abused, and/or

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threatened the victim to stop her from reponing abuse to authorities or from cooperating with a

possible, domestic abuse prosecution. Giles, 128 S.Ct. at 2693. Giles reaffirmed that the common

law forfeiture-by-wrongdoing doctrine was an exception to both hearsay and confrontation rights,

explaining that it "was aimed at removing the otherwise powerful incentive for defendants to

intimidate, bribe, and kill the witnesses against them - in other words, it is grounded in ·the ability

of courts to protect the integrity of their proceedings.'" ld at 2686, 2691 (quoting Davis, 547 U.S.

at 834).

Defendant claims that the Act is "an unconstitutional expansion ofthe doctrineofforfeiture"

by wrongdoing, Def. Mot. at 23-28. but his challenges to the Act are baseless.

1. Forfeiture by wrongdoing prohibits defendants from benefitting from

their efforts to subvert civil litigation.

The Act provides that a statement "is not rendered inadmissible by the hearsay rule ifit is

offered against a party that has killed the declarant. _. intending to procure the unavailability of the

declarant as a witness in a criminal or civil proceeding." 725 TLCS 5/115-1 O.6{a). Defendant argues

that this provision is unconstitutional because forfeiture by wrongdoing applies only where witnesses

were prevented from testifying in criminal cases. Def. Mot. at 26. This claim has no merit.

"[T]he rule of forfeiture by wrongdoing ... extinguishes confrontation claims on essentially

equitable grounds." Crawford, 541 U.S. at 62. And there is no equitable basis for distinguishing

between a defendant who subverts the justice system in a civil case and one who subverts it in a

criminal proceeding. '''Neither in criminal nor in civil cases will the law allow a person to take

advantage of his own wrong.''' See Diaz v. United Slates, 223 U.S. 442, 458 (1912) (quoting Folk

v. Uniled Slales, 15 App. D.C. 446, 460 (1899)). Accordingly, "[a] defendant who wrongfully and

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intentionally renders a declarant unavailable as a witness in any proceeding forfeits the right to

exclude, on hearsay grounds, the declarant's statements at that proceeding and any subsequent

proceeding." United States v. Gray, 405 F.3d 227, 242 (4th Cir. 2005) (emphasis added).

Federal Rule of Evidence 804(b)(6) is to the same effect. Promulgated in 1997, the rule

codifies the longstanding common law principle that a party who procures the unavailability of a

witness forfeits his or her confrontation rights regarding that witness. See Davis, 547 U.S. at 833;

United States v. Ochoo, 229 F.3d 631, 639 (7th Cir. 2000); Stech/y, 225 lIl.2d at 272-73. Rule

804(b)(6) reflects "the need for a prophylactic rule to deal with abhorrent behavior which strikes at

the heart of the system ofjustice itself." Fed. R. Evid. 804(bX6) advisory committee's note to 1997

Amendments (internal quotation marks omined). And because killing potential witnesses

undermines both civil and criminal proceedings, Rule 804(b)(6) applies to both civil and criminal

cases. See Stech/y, 225 1I1.2d at 274 ("althnugh the rule was 'derived from cases that have held that

a criminal defendant forfeits his right to confrontation if he causes or acquiesces in the witness'

unavailability,' the rule 'is not limited to criminal cases' but applies to 'any party' who procures a

witness' absence, including parties in civil cases") (quoting 4 S. Saltzburg, M. Martin & D. Capra,

Fed. Rules ofEvid. Manual § 804.02(16) (9th ed. 2006)).

Defendant cannot cite a single case. statute, ortreaLise for his novel proposition that forfeiture

by wrongdoing somehow does not apply in civil cases. Instead, defendant simply ignores the

longstanding principles on which the Confrontation Clause is based and relies solely on the fact that

the Court in Giles did not address "civil" proceedings specifically. Der. Mot. at 26-27. But that is

not grounds to craft a heretofore unknown exception to forfeiture by wrongdoing.

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 2. 725lLCS 5/115-10.6 docs not "erode the presumption ofinnoccnce."

Defendant also argues that 725 ILCS 5/115-10.6 "erodes the presumption of innocence"

because the "only way the courts could allow the statements based on the new law [is] if the court

detennines that the Defendant is the reason that the witness is unable to testify." Def. Mot. at 28.

While the meaning of this objection is not entirely clear, defendant appears to be making one of two

arguments: (I) the Act is unconstitutional because it allows hearsay evidence to be admitted in a

murder trial based on ajudge's prior finding that defendant murdered the victim in order to keep her

from testifying (in another proceeding); or (2) the Act is unconstitutional because it requires ajudge

to make this finding by a preponderance of the evidence, rather than under a higher standard of

proof. See also id. at 16-17. Both arguments lack merit.

The first is easily rejected. Defendant worries that section 115-10.6 allows courts to admit

evidence in murder trials based on a judicial finding that the defendant killed the victim. But the

United States Supreme Court approved of precisely this structure in Giles, holding that a trial court

may admit testimonial hearsay so longas the court finds that the defendant killed the victim with the

intent to silence the victim as a witness. 128 S.Ct. at 2684, 2693. Because the Act includes an intent

requirement, 725 ILCS 5/115-1O.6(a), (b), the statute passes muster under Giles.

For similar reasons, the Act's "preponderance of the evidence" standard, 725 ILCS

51115-1 0.6(e), is constitutional. Courts in Illinois and around the country - as well as the Federal

Rules of Evidence - agree that this is the proper burden of proof to apply to claims of forfeiture by

wrongdoing. See Stech/y, 225111.2d at 311 (Freeman, Fitzgerald, Burke, JJ.), and 345 (Thomas, C.J.,

and Kanneier, J., dissenting); see also Fed. R. Evid. 804(b)(6) advisory committee note to 1997

Amendments; United States v. SCali, 284 F.3d 758, 762 (7th Cir. 2002); Commonwealth v. Edwards,

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830 .E.2d 158, 172 (Mass. 2005)(recognizing preponderance ofevidence standard and noting that

"virtually all" other jurisdictions employ it),

Accordingly, far from "erod[ing] the presumption of innocence," the Act adheres strictly to

the established elements of forfeiture by wrongdoing.

3. Forfeiture by wrongdoing docs not require the defendant to act

exclusively for purposes of subverting legal process.

Next, defendant argues that the Act is unconstitutional because it does not limit its

application to cases in which making the witness unavailable was the defendant's "sole motivation. Of

Def. Mot. at 25-26. But defendant marshals no authority for the proposition that he cannot have

multiple motives when forfeiting his confrontation right, so long as preventing testimony is among

them. And for good reason, for all of the authority is to the contrary. The Illinois Supreme Court

requires only that the defendant was motivated "at least in part by an intent to interfere with or

impede the process of a trial." Stech/y, 225 B1.2d at 272 (plurality op.) (emphasis added); see a/so

United States v. Dhinsa, 243 F.3d 635, 654 (2d Cir. 2001) ("The government need not, however,

show that the defendant's sole motivation was to procure the declarant's absence; rather. it need only

show that the defendant 'was motivated in part by a desire to silence the witness."') (emphasis in

original) (quoting United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996». lodeed, a

forfeiture rule that did not allow for mixed motivations would yield bizarre results. A defendant who

murdered a witness solely to silence her would forfeit the confrontation right, but a defendant who

murdered a witness both to silence her and to exact revenge would not forfeit that right. Such an

approach defies both Illinois Supreme Court precedent and common sense.

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 4. The Act actually affords protections to defendants beyond what tbe
Confrontation Clause requires.

Finally, defendant claims that the Act violates the Confrontation Clause because, in addition

to its other criteria, it requires judges to find "sufficient safeguards of reliability" before admitting

hearsay evidence. Def. Mol. at 15-16 (citing 725 !LeS 5/115-10.6(e)(2». But this argument is

premised upon a fundamental misreading of Crawford, and it ignores that the "sufficient safeguards"

requirement provides an additional protection to defendants that the Constitution does not demand.

Under Crawford and its progeny. admission of testimonial hearsay not subject to cross-

examination always offends the Confrontation Clause - whether or not it is reliable - unless it

falls within an exception like forfeiture by wrongdoing. 541 U.S. at 62. Accordingly, Crawford

prohibits laws that admit such hearsay solely because it is reliable; reliable or not, it must satisfy an

exception. But once testimonial hearsay does qualify for an exception, the Sixth Amendment does

not stop States from also requiring the testimony to possess traditional indicia of reliability. This

is all that the Act's "sufficient safeguards" language does, and States are always free to provide

protections beyond the constitutional minima. See, e.g., Cooper v. California, 386 U.S. 58, 62

(l967).

In sum, the Act is entirely consistent with the forfeiture-by-wrongdoing exception and

therefore does not offend the Sixth Amendment.

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 CONCLUSION

The People respectfully request that this Court deny defendant's motion to declare 725 [LeS

5/115-10.6 unconstitutional.

September 4, 2009 Respectfully submitted,

LISA MADIGAN
A orney General of lIIinois

JAMES W. GLASGOW BY:~~~~~.~

)WIc'i , LA. SCODRO
Will County State's Attorney Solicitor General
JOHN R. CONNOR
Assistant State's Attorney JANE ELINOR NOTZ A,S.A.
57 North Ottawa Strcct, 7th Floor Deputy Solicitor General \AI,II ~ .....ty
Joliet, lJIinois 60432
MJCHAEL M. GLICK
LEAH M. BENDJ](*
Assistant Attorneys General
100 West Randolph Street, 12th Floor
Chicago,lJIinois 60601-3218
(312) 814-3312

• David Simpson, a 2009 graduate ofStanford Law School, assisted in the research and preparation
of this pleading.

,17-
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
AFFIDAVIT

Under the penalties as provided by law pursuant to Section 1-109 of the Code of Civil

Procedure. I certify that the above statements are true to the best of my d belief.

JOHNR.C 'OR
Assistant State's Attorney

SUBSCRIBED AND SWORN to

before me on Se ptem&::9.

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