“Call My Accuser Before My Face . . .”

by Jamison Koehler on October 31, 2012

The Proof of the Common Law is by witness and jury:  let Cobham he here, let him speak it.  Call my accuser before my face . . .

— Sir Walter Raleigh

It is always difficult to predict how a witness will perform under the “crucible of cross-examination.” A far safer bet is to bring in the same testimony through a third party witness, such as a trained police officer. There are none of those annoying inconsistencies, and you know exactly what it is you are dealing with. Fortunately (and no matter what else you may think of Justice Scalia, you have to thank him for this), there is Crawford v. Washington, 541 U.S. 36 (2004) and that Sixth Amendment Confrontation Clause thing.

Sir Walter Raleigh was never able to confront his accuser, Henry Brooke,11th Baron Cobham, and was ultimately beheaded. But outrage over the circumstances of his trial played a large role in the development of our current jurisprudence on the right to confront one’s accusers at trial. This right applies, at a minimum, to testimonial statements of a witness who did not appear at trial unless (1) the witness was unavailable to testify and (2) the defendant had a prior opportunity for cross-examination.

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