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But before diving into the morass of United States Supreme Court confrontation cases, review the description at the beginning of Chapter 5 of the celebrated trial in 1603 of Sir Walter Raleigh for conspiracy to commit treason.2
Questions:
1)What is the basis of Raleigh’s objection?
Raleigh demanded that Cobham be produced live in court to testify against him. He was counting on his belief that Cobham would refuse to accuse him in sworn testimony in court and, instead, would disavow his affidavit. Lord Coke's refusal to produce Cobham meant that the only proof against Raleigh was hearsay.
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2) Without Cobham’s testimony, what evidence was introduced at trial to prove Raleigh’s guilt? On what basis could the jury do its work?
The absence of a live accuser and the substitution of hearsay left the jurors with no way to test the credibility of Cobham. With their power to test credibility so limited, how could they reach a conviction beyond a reasonable doubt?
Both Raleigh and history record the resulting verdict as an infamous injustice. Raleigh was sent to the gallows based only on hearsay and the public was left with a verdict open to grave doubt of its validity.
The fundamental injustice in Raleigh's trial lay in the failure of his prosecutors to produce any live witness to accuse him in court. It was the insufficiency of the totality of the evidence presented that rankles, not the admission of any particular hearsay statement. The lesson of Raleigh’s case is plain: a defendant should not be convicted unless the prosecution produces witnesses with personal knowledge who appear in court to testify to the elements of his offense. Conviction beyond reasonable doubt cannot rest on hearsay alone.
If the prosecution is permitted to substitute out-of-court statements for in-court accusations, the defendant is not confronted and the jury is hamstrung in doing its job of assessing credibility. And we, who are not present in court, cannot trust its verdict. With no one present or willing to swear before the defendant and the jury that Raleigh was a traitor, we can never be convinced that his execution was fair.
3) Would Raleigh’s case be less compelling if the state failed to produce Cobham but offered additional “reliable” hearsay?
Properly understood, the injustice of Raleigh’s trial can be cured only by production of a live witness at trial. It cannot be cured by substituting "good" hearsay, however reliable the state may consider it to be. Even if the hearsay is in the form of a sworn affidavit or had been previously cross-examined in another forum, the use of an out-of-court statement to prove an essential element of the offense falls short of the requirement that the defendant be confronted with (and that the jury see) the witnesses against him accuse him and be tested. Without a live witness who has first-hand knowledge, the jury cannot assess credibility.
4) Suppose Dyer, instead of his hearsay report, had given sworn testimony based on his own personal knowledge of Raleigh's involvement in the alleged conspiracy. Would Raleigh still have had an unfair trial? Would he have a valid 'confrontation' objection, as opposed to a hearsay objection, to the admissibility of Cobham's confession?
The outrage created by the injustice done to Raleigh is reflected in the inclusion of a 'confrontation clause' in constitutions of all the original states and in the Sixth Amendment to our national Constitution. The Confrontation Clause declares that in all criminal prosecutions, the accused shall enjoy the right "to be confronted with the witnesses against him.
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2 A transcript of Raleigh's trial is available online at < https://mathewlyons.wordpress.com/2011/11/18/the-trialoftrial-of-sir-walter-ralegh-a-transcript/>.