In a rape trial involving a former NIU student, the judge has postponed his ruling on the admission of hearsay testimony in the case until the trial begins on Oct. 16.

On Dec. 10, 1988, Kimberly A. Howard reported a sexual assault and accused Christopher J. Fette, then an NIU senior, as her assailant.

The case went to trial on Dec. 29 of that year, and was dismissed by a DeKalb County judge because of a lack of evidence in force used by the assailant.

Howard died on Jan. 5, 1989. The cause of her death was “undetermined” by a coroner’s jury investigation. The only evidence found in Howard’s body was a Tylenol substance that was not enough to kill her.

Illinois State’s Attorney Mike Coghlan re-filed the case on Feb. 8. Coghlan said he would have re-filed the case earlier, but the defense attorney and the state were in the process of discussing the case, which he expected would lead to a guilty verdict, he said.

Hearsay testimony involves any in-court evidence that proves any statements said out-of-court, which prevents a defendant from facing an accuser.

The right for a defendant to confront an accuser is constitutionally protected, said Bill Brady, Fette’s defense attorney.

Judge John Nickels said he held his decision until a jury could be chosen for the trial because “basically, I thought it was more appropriate to hold the ruling until we chose a jury.”

The question involved in the case is whether or not the state will be prohibited from allowing hearsay testimony in the trial under these circumstances, Nickels said. The case is “substantive” and can stand on its own, he said.

In statutes and case law, there are certain hearsay testimonies admissable in court, Coghlan said. There are three types of admissable hearsay testimony: a statement to a treating physician, a spontaneous declaration and a complaint supported by evidence.

The hearsay testimony in the Fette case falls under all three admissable types of testimonies, he said. At the time of the assault, Howard allegedly told police and a campus doctor of the incident.

In response, Brady said Coghlan “is an advocate for his position to keep it (the hearsay testimony) in (the trial) and I am an advocate for my position to keep it out.”

Since the alleged victim of the sexual assault is deceased, the defendant cannot face his accuser, and the case should not go to trial, Brady said.

The alleged victim’s presence in the trial is not needed in this case, similar to a murder case, Coghlan said. Fette also allegedly wrote Howard a letter confessing to the crime and apologizing for the crime.

This case is not a murder case, Brady said. The nature of the case makes it difficult to defend because the defendant is fighting for his constitutional rights, he said. The letter allegedly written by Fette has not yet been legally determined to be a confession by the law, he said.

Ethically, any new evidence pertaining to the case cannot become public, Brady said. The defense of the case is not determined by the ruling on the hearsay testimony, he said. If the ruling allows the testimony, the defense will consider its applications at the trial, not before, he added.