The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing

On September 6, 2012, a jury convicted Drew Peterson of the murder of his third wife, Kathleen Savio. Media accounts of the verdict indicated that jurors were primarily swayed by the admission of hearsay statements by Savio as well as Peterson’s third wife, Stacy Peterson. Numerous stories reported that the prosecution admitted these hearsay statements pursuant to “Drew’s Law,” a statutory codification of the common law doctrine of forfeiture by wrongdoing that the Illinois legislature enacted solely for purposes of the Peterson prosecution. In fact, these statements were admitted under the common law doctrine of forfeiture by wrongdoing, and the viability of Peterson’s appeal hinges upon the constitutionality of the transferred intent doctrine of forfeiture by wrongdoing.The doctrine of forfeiture by wrongdoing typically applies in the witness tampering context: When a defendant on trial for some crime (e.g., robbery) intends to and does procure the unavailability of a prospective witness against him at that trial, the prosecution can admit the witness’s hearsay statements at that same trial (the robbery trial). But does the doctrine also apply at the defendant’s trial for murdering the prospective witness, with the defendant’s intent to render the witness unavailable at the first trial transferring to the second trial? This essay contends that the Supreme Court’s opinion in Giles v. California endorsed a transferred intent doctrine of forfeiture by wrongdoing by making the operation of the doctrine dependent upon causation and intent rather than causation and benefit.