The new Illinois hearsay law is strongly criticized for being unconstitutional for many reasons. There are some valid arguments to support the acceptance of this controversial piece of legislation.
According to Will County States Attorney James Glasgow, this new law is “a bill that will help prosecutors across the state utilize the statements made by murder victims… that previously would have died with them.”
What this law basically says is that “a statement is not rendered inadmissible by the hearsay rule if it is offered against a party that has killed the declaratant… intending to procure the unavailability of the declaratant as a witness in a criminal proceeding.”
Not just any hearsay will be useable as concrete evidence in a case. There are rules to determine what can and cannot be used. The law does require a judge to hold a pre-trial hearing to determine whether the evidence shows that the defendant murdered a witness to prevent them from testifying against them. The judge also has to decide if he or she believes the hearsay is reliable and if allowing it to be used in court would be in the best interest of justice.
Some people believe that allowing this particular type of hearsay to be used in trial will sway jurors to automatically believe that the judge thinks that the defendant is guilty. That should not be the case. Jurors are warned that they should not just immediately accept these statements as the truth. They should remain objective until all evidence is presented.
According to Glasgow, “in essence, what you’re basically doing is allowing the victim of a violent crime to testify from the grave.” There are many cases in which witnesses were killed so that they could not provide incriminating evidence that would cause a defendant to be convicted. This law could potentially save the lives of those who would be key witnesses and be required to testify in a court of law.
While in theory this hearsay law seems viable, there are too many “what if’s” to consider. The main argument remains that, ultimately, the hearsay law refuses the accused the right to face the accuser. The Sixth Amendment of the U.S. Constitution states, “In all criminal prosecutions the accused shall enjoy the right … to be confronted with the witnesses against him.”
There is much conflict with this new piece of legislation. In many instances, it will be easy to work around working in favor of the defendant, or in other cases, it can go the other way and give a nice loophole to tie a noose with.
The problem lays within the name of the legislation itsself. Hearsay. The witness is dead so the conversation is not recallable, and the conversation or evidence has become second hand. This makes it less reliable and doubtable. It becomes a second hand source and, in most instances, it is a recount that is a one-sided retelling of a past conversation. In many instances the person that will be utilizing the testimony of the deceased will be someone close to the departed, which causes reason to doubt the testimony. Plus, there is no one to validate the claim or refute it since again, the other party to the conversation is deceased.
Another major inherent with this new legislation is that it gives a considerable amount of power to the judge. The judge has to hold a hearing on whether or not the testimony will be allowed in the case. This hearsay evidence is clearly enough to make or break cases, and a judge is given the sole choice of allowing the hearsay evidence or dismissing it altogether. Even though the justices of our legal system are sworn to uphold the law, they do have opinions, and this law allows room for bias opinions to enter into court cases and will ultimately impact the decision made in the courtrooms.
When we explore hearsay more thoroughly, the definition of gossip comes up. Gossip is an unverified account or explanation of events circulating from person to person. Since we explore the parties involved in hearsay testimony, we can conclude that there is no viable way to verify the accuracy of the conversation since one party is deceased. So it is safe to conclude that, in the purest form of the definition, hearsay is gossip.
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