Thomas D. Lyon, USC Law School, and Raymond LaMagna, Irell & Manella, have posted an article, The History of Children's Hearsay: From Old Bailey to Post-Davis. It is forthcoming in the Indiana Law Journal. Here's the 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.