Does anyone know...?

[John Fazio]

(09-18-2017 09:04 AM)RJNorton Wrote:  Thanks, John. Although I still tend to believe the kidnapping plot was real, I certainly grant that you make some excellent points in the pages of your book that you cited. Kudos.

I will ask just one thing. You give credence to the testimony of Mrs. E. W. McClermont. She maintained that she overheard Booth, Herold, and Atzerodt having a conversation on a Washington street in April 1864 (an entire year prior to the assassination).

She claimed that she was standing only a few feet from the men. And she overheared them talking and testified as follows:

"Then I heard the President's name mentioned; one of the men spoke of his coming from the Soldier's Home; then I heard them mention the word "telescope rifle." One of these answered and said "His wife and child will be along."' Another replied, "It makes no difference; if necessary, they too could be got rid of." At this I turned, and one of them saw I was looking at them; they ceased conversation and walked on the avenue."

I have a couple of questions. First, doesn't Mrs. McClermont's testimony meet the legal definition of hearsay? And, second and more importantly, do you really think Booth and boys were so stupid as to have a conversation like this on a public street only a few feet from a total stranger who could hear what they were saying? Does this even make sense?

Roger:

The hearsay rule is very complicated, because there are many exceptions to it, so many, in fact, that in some systems of jurisprudence hearsay evidence is not excluded, but merely given less weight. I, of course, do not know what the rule was in the Federal judiciary at the time, but it is a safe bet that it was largely the same as it is now. In my state, there are 23 exceptions to the rule of exclusion if the declarant is available and another 6 if the declarant is unavailable. (The declarant is the one making the statement sought to be introduced.) In my opinion, Mrs. McClermont's testimony as to what the conspirators said would be hearsay, and therefore inadmissible, but for the fact that it falls under one of the exceptions applicable when the declarant (the conspirators) is not available (since they were not permitted to testify). The exception is known as a statement made that is contrary to a declarant's interest. Accordingly, it would then be deemed admissible in evidence, which, apparently, was why her testimony was accepted.

As for the likelihood of the conspirators conversing as she said they did, in such close proximity to her, observe that she said they spoke in an undertone and that for that reason she picked up very little of the conversation at first. Consider, further, that Herold and Atzerodt were both immature and weak in the head and would therefore be quite likely to fail to take the kinds of precautions that wiser and more mature men would take. Booth was a numbskull too, but in a different way. Observe, too, that when they perceived that she was looking at them, they shut the conversation down and walked away. The bottom line is that I am inclined to credit her testimony and so, apparently, did Judge Fisher. I cannot imagine what motivation she would have had to make up the story out of whole cloth, nor can I imagine that Edwards Pierrepont and his colleagues would knowingly use perjured testimony. Further, I observe that defense counsel did not even bother to cross-examine her, which can only mean that they too felt her story was unimpeachable. (See pp. 365, 366 of The Trial of John Surratt, Vol. I.)

John