The History of Children's Hearsay: From Old Bailey to Post-Davis

31 Pages Posted: 4 Jun 2007  

Thomas D. Lyon

University of Southern California - Gould School of Law; University of Southern California - Department of Psychology

Raymond LaMagna

Irell & Manella LLP

Abstract

The United States Supreme Court has recently held that in order to determine the application of the Confrontation Clause to hearsay, one should examine common practice in 18th century British courts. Analyzing 18th century treatises and trial reports, this paper demonstrates that children's hearsay statements alleging abuse were routinely admitted when children were too young to testify, and that R. vs. Brasier, an oft-cited 1779 case, did not change this practice. Rather, both the courts and commentators believed that a best evidence approach should be applied - children should testify whenever possible, but when they could not, their hearsay could be heard. The paper proposes an interpretation of the Confrontation Clause forfeiture by wrongdoing doctrine that captures both historical and contemporary intuitions about what is fair in criminal cases when child victims are too young to testify.

Keywords: evidence, hearsay, children, confrontation, sexual abuse, rape

Suggested Citation

Lyon, Thomas D. and LaMagna, Raymond, The History of Children's Hearsay: From Old Bailey to Post-Davis. Indiana Law Journal, Vol. 82, 2007; USC Law Legal Studies Paper No. 07-7. Available at SSRN: https://ssrn.com/abstract=990987

Thomas D. Lyon (Contact Author)

University of Southern California - Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States
213-740-0142 (Phone)
213-740-5502 (Fax)

University of Southern California - Department of Psychology ( email )

Los Angeles, CA 90089
United States

Raymond LaMagna

Irell & Manella LLP ( email )

1800 Avenue of the Stars
Los Angeles, CA 90067
United States

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