CHARLES NESSON TAKES A SHOT AT THE PARADOX
BASED ON AN ALTERNATIVE READING OF RALEIGH'S
(From Green & Nesson, Problems, Cases & Materials on Evidence (2nd Ed.
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
"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
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
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
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
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
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
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
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
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