Convictions through Hearsay in Child Sexual Abuse Cases: A Logical Progression Back to Square One
![handle is hein.journals/marqlr72 and id is 53 raw text is: CONVICTIONS THROUGH HEARSAY IN
CHILD SEXUAL ABUSE CASES: A
LOGICAL PROGRESSION BACK TO
SQUARE ONE
FRANK M. TUERKHEIMER*
I. INTRODUCTION
In 1603, Sir Walter Raleigh was tried for high treason. The indictment
alleged that Raleigh and Lord Cobham conspired to overthrow the King
and replace him with Arabella Stuart, using the assistance of the Austrian
Archduke and the King of Spain. Arabella Stuart, in ascending to the
Crown, would establish peace between England and Spain, tolerate Popish
and Roman superstition, and agree to be bound by the Archduke, the King
and the Duke of Savoy in contracting a marriage.1
The principle evidence against Raleigh was a confession given by Lord
Cobham while under interrogation in the tower shortly after the period of
the alleged conspiracy.2 Raleigh urged that the evidence was inadmissible
because it was unreliable hearsay. In response to Raleigh's argument that
Cobham implicated Raleigh out of a desire to help himself, the attorney for
the prosecution responded that while [t]he accusation of a man on hear-
say, is nothing; would he accuse himself on passion, and ruinate his case
and posterity, out of malice to accuse you?3 The prosecutor also alluded
to an earlier statement of Cobham to his brother in which Cobham said
'[y]ou' are fools, you are on the bye, Raleigh and I'[sic] are on the main;
we mean to take away the 'king and his cubs'.4 Thus, the prosecution
* Professor of Law at the University of Wisconsin.
1. For a detailed account of Sir Walter Raleigh's treason trial, see 2 COBBETr'S A COMPLETE
COLLECTION OF STATE TRIALS 1-59 (1809) [hereinafter 2 COBBETr'S].
2. Id. at 10, 11, 17, 19. There is no question that today this confession would be inadmissible
as hearsay, even in a joint trial with Cobham. Bruton v. United States, 391 U.S. 123 (1968).
3. 2 COBBETT's, supra note 1, at 14. Presumably, the argument that Cobham would ruinate
his... posterity referred to the legal consequence that Cobham's heirs would not inherit his
estate if he were found guilty of treason, a potent argument. At another point, the attorney for the
Crown stated: when a man, by his accusation of another, shall, by the same accusation, also
condemn himself, and make himself liable to the same fault and punishment: this is more forcible
than many Witnesses. Id. at 7.
4. Id. at 14. Expressed in terms of today's rules of evidence, the prosecutor's argument is that
Cobham's statement to his brother was a declaration against his penal interest. Since not offered
to exonerate the accused, it is admissible without the need for corroboration if the declarant is
unavailable. FED. R. EVID. 804(b)(3). The evidence on this point suggested Cobham's availabil-](ViewImageLocal?handle=hein.journals/marqlr72&div=10&collection=&method=preview&ext=.png&size=3)
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Convictions through Hearsay in Child Sexual Abuse Cases: A Logical Progression Back to Square One
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