CHARLES NESSON TAKES A SHOT AT THE PARADOX
BASED ON AN ALTERNATIVE READING OF RALEIGH'S
CASE

(From Green & Nesson, Problems, Cases & Materials on Evidence (2nd Ed. 1994)

The trial of Sir Walter Raleigh in 1603 encapsulates the tangled origins of confrontation and hearsay and epitomizes the injustice that underlies and informs both. If a distinctive substantive theory of confrontation exists, then we should be able to discern it in, and relate it to, Raleigh's case.
    According to legend, King James disposed of Raleigh, a political enemy, by rigging a prosecution against him. At King James' instigation, Lord Coke, the king's evil prosecutor, accused Raleigh of conspiracy to commit treason. Coke based his case against Raleigh on a confession he coerced from Raleigh's friend, Cobham, while Coke held him incarcerated in the Tower of London. Cobham, in his confession, accused Raleigh of conspiring to kill the king.
At the trial, when Coke introduced Cobham's confession into evidence, Raleigh objected. But instead of producing Cobham, Coke called as a witness a boat pilot named Dyer. Dyer testified that a Portuguese gentleman told him that Raleigh was conspiring to kill the king. Raleigh objected again, but this time without any success at all. The court allowed the evidence, and on this evidence, consisting of Cobham's confession and its corroboration by the boat pilot, Raleigh was convicted and executed.
    The tale of this injustice echoes down through the subsequent centuries to explain the need for the hearsay rule and the confrontation clause.
    We feel the injustice to Raleigh, but what is its source? There are four coherent views of what is wrong in Raleigh's case.
    Cross-examination. The most obvious problem in Raleigh's case is the absence of cross-examination. We want Cobham produced so that Raleigh can test Cobham's accusation by subjecting it to "the greatest engine of truth ever invented." We who root for justice want to see Raleigh able to ask Cobham whether he really made the confession attributed to him, whether Lord Coke coerced him to confess, and whether the confession is true.
The hearsay rule responds directly to the denial of this opportunity. The rule requires either that statements offered for the truth of the matter asserted be subject to cross-examination or that they fall within an exception to the rule. Cobham's confession was hearsay, an out-of-court statement introduced for the truth of the matter asserted, for which there is no hearsay exception. Reliance upon Cobham's confession as a basis for concluding that Raleigh was indeed conspiring to kill the king would require that we rely on Cobham's testimonial capacities, his perception, memory, veracity, and clarity in communication, but with no basis for doing so. The evidentiary rule against admitting hearsay guards against just this weakness in the evidence. A rule excluding hearsay protects against the injustice to Raleigh by allowing the prosecutor to use Cobham's accusation against Raleigh only if Cobham himself appears as a witness and is cross-examined, thus allowing Cobham's perception, memory, veracity, and clarity to be tested by cross-examination.
    The confrontation clause has likewise been seen as a response to the denial of cross-examination in Raleigh's case. This leads directly to the entanglement of hearsay and confrontation. As the Supreme Court has interpreted the confrontation clause, it requires that an accusation against a criminal defendant fall into one of three categories: It must be either (1) subject to cross-examination, or (2) fall within a traditional hearsay exception, or (3) have been made under circumstances giving it such indicia of reliability that cross-examination would be superfluous. But this makes confrontation nothing more than the hearsay rule by another name. Both are qualified rights of cross-examination with more or less the same exceptions and underlying rationale (or lack thereof).
    Availability. A second view of Raleigh's case focuses on the fact that Cobham was an available witness whom the prosecution refused to produce, though it had the power to do so. This is an appealing view because it is the prosecution's refusal to produce Cobham that most arouses our suspicion that the case against Raleigh is rigged.
An approach to the confrontation clause addressing refusals to produce an available witness would seem to lead to an interpretation of the right of confrontation quite different from the cross-examination approach. The availability approach would assert a preference for live testimony in situations in which live testimony is a possibility. The constitutional right of confrontation would require the prosecution to produce available witnesses to testify in open court rather than use their out-of-court declarations. This sounds fair and different from hearsay. On examination, however, it fails to stand up as an independent rule and turns out to be a dead end.
    The Supreme Court has explored this route not once but twice. Justice Harlan espoused the availability approach in his concurrence in California v. Green, but then recanted less than a year later when he realized that his preference rule for available witnesses would wipe out all of the hearsay exceptions that contain no such preference.
"Availability" provides a different rationale for confrontation than "cross-examination," but does not avoid the entanglement with the hearsay rule. Many of the hearsay exceptions are not only exceptions to the preference for cross-examination but also exceptions to the preference for available witnesses. These include all of the exceptions embodied in Rule 803, including such workhorses as the exception for business records. Harlan, when he thought more about it, realized that he did not want to wipe them all out. He had intended no such radical reform.
Remarkably, Justice Blackmun, just a few years later, in his opinion for the Court in Ohio v. Roberts, repeated Harlan's mistake, evidently completely unaware of the ground Harlan had already covered. Harlan's opinions are nowhere cited by either the majority or the dissent in Roberts. The Court took the next ten years and several further opinions to work away from this error, finally escaping from it in White v. Illinois only by surrendering completely to the constitutionalizing of the hearsay rule.
    Face to Face. A third view of Raleigh's case focuses on the fact that Cobham was not brought into Raleigh's presence to accuse him face to face. "Face-to-face" confrontation would have been of substantial benefit to Raleigh, even if Raleigh was not allowed to cross-examine. Face-to-face confrontation would have (a) eliminated doubt about whether Cobham actually accused Raleigh; (b) given the jury the opportunity to observe Cobham's demeanor when he accused Raleigh; (c) subjected Cobham to oath before the jury; and (d) forced Cobham to make his accusation under the psychological pressure of looking Raleigh in the eye.
The modern right of cross-examination usually incorporates all of the face-to-face tests and adds the power to cross-question. Only in the unusual case in which cross-examination of the accuser is conducted out of the defendant's presence does the constitutional value of face-to-face confrontation come into discrete focus. A "face-to-face" approach therefore necessarily assumes the "cross-examination" approach and adds to it. The hearsay exceptions deny a defendant both. Thus, a face-to-face approach carries with it all the problems of the cross-examination approach, and cannot do better than the cross-examination approach in resolving the conflict between the confrontation clause and the hearsay exceptions.
Corroboration. A fourth view of Raleigh's case focuses on the lack of corroboration for Cobham's accusation. Our sense of the injustice to Raleigh is, ultimately, a feeling that he was innocent. The evidence against him, taken as a whole, fails to support a conclusion beyond a reasonable doubt that he was guilty.
    This is not a problem arising solely from the admission into evidence of Cobham's confession. To be sure, we are offended by the introduction of Cobham's confession against Raleigh, but we are offended also by the weakness of the prosecutor's response when Raleigh objects to it. The prosecutor could have produced Cobham, which would have been strong, or he could have produced other good evidence that corroborated Cobham's confession, which also would have been strong. Instead, he produced the boat pilot's silly report of the hearsay statement of an otherwise unidentified Portuguese gentleman, which quite appropriately stimulated Raleigh's response, "This is the saying of some wild Jesuit or beggarly priest, but what proof is it against me?"
    Our sense of the injustice, in other words, might be explained by the insufficiency of the whole case against Raleigh, not merely by the use against him of Cobham's confession. We are disgusted, in the story, when Lord Coke produces the boat pilot because the pilot's testimony utterly fails to corroborate Cobham's confession and remove our doubt that it is false and coerced.
    The totality of the evidence against Raleigh left a gaping hole, namely that Cobham's confession was false. The probative value of Cobham's confession needed to be tested. It could have been tested either by directly testing Cobham himself through cross-examination or by indirectly confirming its truth with corroborating evidence that could itself be tested.
These observations about Raleigh's case raise the question whether one can construct a sensible and useful interpretation of the confrontation clause that takes account of the deficiency of the case against the defendant taken as a whole rather than limiting the confrontation clause exclusively to the admissibility of discrete items of evidence. The three approaches to the underlying rationale of confrontation--cross-examination, face-to-face presence, and availability--all lead to theories of confrontation expressed as a rule of admissibility, which inevitably entangles the confrontation clause with the hearsay rule. Corroboration, as an element of a confrontation rationale, offers the possibility of escape, precisely because concern for corroboration directs focus to the sufficiency of the evidence as a whole in a manner capable of dispelling the fear of injustice that the use of a hearsay accusation raises. Such an approach promises to disentangle the confrontation clause from the hearsay rule, where other approaches have failed.
    Suppose we conceive of confrontation as a process that allows a defendant to test the case against him. On this theory, the object of the confrontation clause is to prevent the prosecution from convicting a defendant on the basis of an inadequately testable accusation.
There are two basic tests to which an accusation against a defendant can be subjected: cross-examination and corroboration. Cross-examination, which encompasses oath, face-to-face presence with the defendant, and cross-questioning, tests the accusation by testing the accuser. Corroboration, which looks to evidence independent of the accusation to determine if the accusation is confirmed, tests the accusation by putting it in context with other evidence. If an accusation is to be introduced against a criminal defendant in a form that does not give the defendant the opportunity to cross-examine the declarant, then the confrontation clause should be interpreted to require that the hearsay accusation be corroborated. Confrontation is thus conceived as a concept broader than cross-examination. Cross-examination is a primary means, but not the exclusive means, of accomplishing confrontation.
Interpreting confrontation as testing would immediately allow the Supreme Court to step away from much of the nonsense that has characterized judicial analysis of how the introduction of hearsay accusations against a criminal defendant can be squared with the defendant's right of confrontation. The various exceptions to the hearsay rule that permit hearsay accusations against criminal defendants have been justified constitutionally by the rationalization that the hearsay declaration was made under circumstances that give it guarantees of trustworthiness equivalent to cross-examination. Wigmore asserts in an oft-quoted passage:
    The theory of the hearsay rule ... is that the many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination. But this test or security may in a given instance be superfluous; it may be sufficiently clear, in that instance, that the statement offered is free enough from the risk of inaccuracy and untrustworthiness, so that the test of cross-examination would be a work of supererogation.  5 J. Wigmore, Evidence 1420, p.251 (J. Chadbourne rev. 1974).
    This is a ludicrous claim. According to Wigmore, for example, excited utterances are deemed so trustworthy as to render the test of cross-examination "a work of supererogation" because the utterence is made under circumstances that eliminate the possibility of fabrication. This assumes without any justification whatsoever not only that excitement stills the power of fabrication but also that uncovering the possibility of fabrication would be the only purpose of cross-examination. Research has shown that excitement increases the probability of erroneous reports, and any counsel who, given the opportunity, failed to cross-examine the declarant of a crucial excited utterance, even one conceded not to be fabricated, would be near incompetent. Perhaps the witness misperceived the situation, or was confused, or exaggerated, or mispoke, or saw something else that put his utterance in a different context. Similar analysis and observation can be made about virtually all of the hearsay exceptions. Statements made to doctors are deemed so trustworthy that cross-examination would be marginal because people are highly unlikely to lie to a doctor. Yet doctors are schooled in the art of taking histories precisely because patients so often convey faulty or misleading information. Dying declarations are credited because the sense of impending death removes all temptation to falsehood. Courts even today continue to quote as authoritative the religious rationale for this exception: "[N]o person, who is immediately going into the presence of his Maker, will do so with a lie upon his lips."
The rationalizations deal at most with the risk that the declarant is intentionally lying. They assume that truth-telling and lying are opposite sides of a two-headed coin instead of zones along a spectrum representing an individual's attentiveness to accuracy. They ignore entirely the other benefits to the defendant of cross-examination: assurance that the declaration was actually made; the force of the oath and the presence of the defendant; the possibility that the declarant, though not intentionally lying, misperceived, misinterpreted, misremembered, was speculating or elaborating or passing on hearsay, or never intended the accusatorial meaning that the prosecution is attributing to the declaration; and the opportunity to impeach the declarant. No defense lawyer would ever consider the circumstances surrounding the generation of a critical hearsay accusation against the defendant in such a way that cross-examination would be superfluous. It is one thing to say that a given type of hearsay arises under circumstances that give it some indicia of reliability, and quite another to say that the presence of circumstances comprising the elements of any of the hearsay exceptions guarantees the trustworthiness of the hearsay declaration. The rhetorical move from indicia of reliability to guarantees of trustworthiness is hyperbole.
    The reason for overblown assertions about the reliability of hearsay declarations stems from the result-oriented process of rationalizing their admission, given a legal framework that offers the defendant nothing but rationalization to offset the loss of his right of cross-examination. Courts wanting to recognize hearsay exceptions have no choice but to assert that the lost right of cross-examination was not worth anything. This doctrinal and ethical awkwardness would be avoided by turning instead to corroboration, the other basic test besides cross-examination for the reliability of evidence. A corroboration requirement is the logical way to offset denying a defendant the opportunity to cross-examine his accuser. If we concede that the defendant's right to cross-examine his accusers is not absolute (a concession that is the premise for every Supreme Court confrontation case), and if we foreswear as hyperbole the rationale that the hearsay is so good, that is, comes with such "guarantees of trustworthiness," that it does not need testing, we are led naturally to look for a means to test the hearsay accusation that is independent of the declaration itself. This is corroboration. If, for reasons of practicality, necessity, or efficiency, courts choose to permit the prosecution to introduce a testimonial accusation against a criminal defendant under circumstances that give the defendant no opportunity to cross-examine the declarant, then the logical way to make up the deficiency is to require the hearsay declaration to be corroborated.
    A hearsay accusation is, in effect, an untested hypothesis of guilt. We can understand the confrontation clause as a guarantee to a criminal defendant that he will have the opportunity to test the accusations against him. Cross-examination of the declarant is one effective test. Requiring an accusation to be corroborated is another. If courts tolerate the introduction against a criminal defendant of a hearsay accusation that the defendant cannot test by cross-examination, then the confrontation clause could be understood to require that the hearsay accusation be subjected to the test of corroboration.
    The affirmative thrust of making corroboration a component of confrontation is that a hearsay accusation introduced against a criminal defendant must not only meet threshold standards of reliability but must also be corroborated. This approach would require a threshold foundation of reliability to justify admission of hearsay, just as Justice O'Connor articulates in Wright, but would also require that if hearsay is admitted, it must be corroborated to be deemed sufficient to convict. No crucial element of the prosecution's case against a criminal defendant could be proved by hearsay alone.
    This would be a sound rule. We admit hearsay because the damage done to the factfinder's ability to determine the truth seems more impaired by excluding the hearsay than by admitting it and dealing with the risks it poses. Our current methods of dealing with the risks are, however, minimal. There is no formal recognition of the deficiency in the evidence. We allow the opposing lawyer to point out in argument the hearsay's inherent flaw--its untestability by cross-examination. But this is addressed to the jury, not the judge. Jurors can respond as they please. The judge does not treat the hearsay accusation any differently than she would treat an accusation that had been cross-examined. Instead, the trial judge (and reviewing courts) simply act as if there is no deficiency in the hearsay, or they assume, which is the same thing, that the jury is capable of assessing and properly evaluating the deficiency.
But simply because evidence is ruled admissible does not mean it provides a sufficient basis to establish the element of the offense it is offered to prove. We fully understand this when relevance is the issue. Evidence admitted over a relevance objection, even if credited, might not establish the material proposition for which it is offered because there might still remain a logical gap between what the evidence establishes and what is necessary to constitute proof of the proposition in question. As McCormick said, "A brick is not a wall."
When hearsay is admitted, even if pursuant to an established hearsay exception, a similar observation holds with respect to sufficiency of the evidence to prove the proposition for which it is offered. Hearsay law says nothing about how potent hearsay should be allowed to be once it is admitted. Recognizing that hearsay should, under some circumstances, be admitted because complete exclusion is too severe a response to the flaw in the evidence does not mean that because a court admits the hearsay, the court must thereafter ignore its flaws. Indeed, quite the opposite is true--courts should employ and accommodate other means of compensating for the flaw. Having concluded that the risks from exclusion outweigh the risks of admission, it nonetheless makes sense to minimize the risks of admission.
    Admitted hearsay poses a problem of speculation if it is uncorroborated. The hearsay may, if credited, contain a broad enough assertion to leave no logical gap between the hearsay assertion and the element of the crime being proven. Its weakness is not its logical scope, but its impaired testability, which interferes with the process of accreditation. But on what basis can the jury decide to credit it? Without evidence to corroborate the hearsay, the jury has no basis equivalent to that provided by cross-examination.


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