I'm curious about the background political motivations of the judges in Raleigh for not permitting the witness to confront him. The judges' view — that Cobham may have chickened out if he had to directly confront Raleigh — seems to cut against them. Indeed, a witness confronting the accused has the benefit of the witness realizing the gravity of their information. A life (either in full or in part) hangs in the balance. The witness's information will materially impact that life. It seems just (and more likely to yield accurate information) for the witness to better realize the impact their information will have through direct exposure to the accused. So, given the weakness of the judges' view, were there other motivations at play?
Raleigh makes "standards of proof" feel arbitrary. Credibility is so colored by bias as to the point of meaninglessness. Would it have been sufficient if his comrade had been there? Depends, is the kind of guy that the court would be likely to believe or would he be a 'beggarly priest'?
It was an interesting look into the history of the confrontation and hearsay rules without necessarily framing it in terms of the modern American version of those rules. Making that his only line of defense didn't seem like a great idea, but I guess the cards were stacked against the guy. The hearsay portion still seems more important to me than the live testimony/confrontation portion.
Raleigh trial highlights the role of authority and power. Within the courtroom, certain players hold varying weights of power that manifests and help reach decisions. The role of God and the King are ultimate. However, other players seem to be the arbiters of who's claims are worthy of God and the King. This power is immense and dispositive. They determine admissibility, sufficiency, and verdict.
I wonder if everyone in the trial knew that Cobham wanted to recant his statement, and it was an unspoken assumption that the prosecutors had to deal with. It seems deliberately obtuse the way that the prosecutors handled it - by simply refusing to deal with Raleigh's assertion that he would recant, and to pretend that it was actually more fair because he would be more likely to recant if he saw Raleigh. It seems almost conspiratorial for the prosecutors to all ignore Cobham's likely recanting of his testimony.
Dyer's testimony should have been inadmissible. It was hearsay of hearsay. Not only was the other guy anonymous and therefore could not have been called into court (as was discussed), he himself likely had no direct knowledge of what he was reporting to Dyer. (If he'd been privy to the treasonous activities, then why would he be talking about it with some guy he'd just met?) That question seems to me fairly easy to resolve, though we could imagine cases—for example, if Dyer was actually Smith and had direct evidence of Raleigh's treason—far more difficult. Cobham's written statement gives rise to a number of other questions. Should it have been admitted? If admissible, should it have been sufficient to convict? Was it, in fact, taken as sufficient? Or, put differently, what precise role did Cobham's testimony play in Raleigh's conviction?
I don't think it's possible to disentangle the issues of sufficiency and admissibility in the Raleigh trial. Although Raleigh states that the production of Cobham as a live witness would suffice for him to admit guilt, it is not clear if his objection rests on the insufficiency of all other evidence or its inadmissibility. For instance, in the Smith hypothetical, it could be that Raleigh would sustain his objection because, though Smith's testimony is admissible, it may not be sufficient. That is, where the prosecution possesses other evidence that could either complement or contradict--depending on what the jury believes--the evidence presented is insufficient. Although I am not certain that such a relative understanding of sufficiency would have carried the day at the time of Raleigh's trial, it is certainly true today that the prosecution may not withhold evidence--including the production of a witness-- as it did here. See Brady. If we accept instead that Raleigh's case is one about admissibility, we start to see the difficulties that Cecil perhaps inartfully described: that there may be cases where there is no direct evidence, but that the circumstantial evidence (including hearsay evidence) would be enough to convict. Now, we understand that there are lines which the jury may not cross and we simply remove those possibilities (i.e., we prevent the jury from hearing hearsay evidence in the first instance).
I think it is both options of hearsay and insufficiency. I don't think it must be one or another when both are fundamentals to proper justice. Especially when both were issues present within the case and both would nix the case as at least "morally" unjust. For example, what is an admissible "hearsay" in terms of what we allow in? We only allow that in very explicit circumstances. AND what is a sufficient hearsay if we do allow it? Neither are good things in my view. We need both steps/boxes in evidence.
Professor Nesson, you emphasized the "injustice" of the case, a case of grave injustice... But... what if Raleigh was in fact guilty? Aren't we being anachronistic by using our contemporary rules to call what is above all a procedural injustice a matter of truth? The truth should not be obscured: perhaps Raleigh was indeed guilty, perhaps Cobham and Dyer were indeed telling the truth. In such a case, there might have been procedural injustice according to the Common Law of England (perhaps? at that time?)...but no actual injustice in the true meaning of the word.
I find it interesting that all Ralegh wanted was for his accuser to make a sworn statement. To him, it seemed that was all the truth he needed. He isn't concerned with the the elements of believable testimony, the witness's character, presentation, etc. It is hard to imagine such a time, where someone was okay with their life resting in another's hand, as long as he first swore to a common deity or king. It certainly makes it easier to ascertain the "truth."