In a celebrated trial in 1603 Sir Walter Raleigh was accused of conspiracy to commit treason against the Crown by attempting to establish Arabella Stuart as queen of England. At his trial the evidence consisted primarily of a sworn "confession" by Lord Cobham, Raleigh's alleged co-conspirator, before the Privy Council and a letter by Cobham. Raleigh asserted that Cobham had recanted his confession and protested its introduction:

But it is strange to see how you press me still with my Lord Cobham, and yet will not produce him; ... [H]e is in the house hard by, and may soon be brought hither; let him be produced, and if he will yet accuse me or avow this confession of his, it shall convict me and ease you of further proof.

Raleigh's Trial, 2 How. St. Tr. 16 (1603); 1 Jardine's Crim. Trials 418 (1832). The prosecution responded not by producing Cobham but by calling a boat pilot named Dyer, who testified that while in Lisbon a Portuguese gentleman told him, "Your king [James] shall never be crowned for Don Cobham and Don Raleigh will cut his throat before he come to be crowned." Raleigh protested this evidence on the ground that, "This is the saying of some wild Jesuit or beggarly priest; but what proof is it against me?" The prosecutor, Lord Coke, responded, "It must perforce arise out of some preceding intelligence and shews that your treason had wings." On this evidence Raleigh was convicted and executed. See 1 J. Stephen, A History of the Criminal Law of England 333-336 (1883); 9 Holdsworth. A History of English Law 216-217, 226-228 (1926); J.G. Phillimore, History and Principles of the Law of Evidence 157 (1850).

What do the testimonies of Lord Cobham and Dyer have in common? What infirmities, if any, does such evidence contain? Should such evidence be admissible in criminal or civil cases? Does it make a difference whether other probative, corroborative evidence is introduced by live witnesses who testify from their own observations? What values are implicated by the use of such evidence? Fairness? Reliability? Necessity? Individual integrity?

Outrage at the injustice done to Raleigh contributed to the development of the hearsay rules and the constitutional rights of confrontation and compulsory process. One of the puzzles of this subject is how hearsay, confrontation, and compulsory process interrelate.

It is crucial, in applying the hearsay rule, to understand the purpose for which the evidence is being offered. Is a statement being offered to prove the truth of the matter it asserts? Or to prove the statement was made?

As you work through the following problems, consider carefully whether the "statement" in question is being offered to prove the truth of the matter asserted. Also consider whether the chain of inference for which the evidence is offered requires a trip through the mind of--and hence reliance on the testimonial capacities of--an out-of-court declarant. Who is the witness? Who is the declarant?


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