historical context
Let me start with a bit of historical context because that's a lot of work here. Americans often indulge in a kind of "Salem exceptionalism", treating the events of 1692 as an isolated and idiosyncratic deviation from the long arc of human affairs. Countless books have attempted to explain why the Salem witch craze happened as if it were an aberration, pointing to everything from group psychosis to borderline stress to hallucinogenic yeast.
In fact, witch-hunts and witch trials took place in Europe for centuries before 1692, with consequences of far greater magnitude. Nineteen accused witches were executed in Salem. Sometimes more than 100 accused witches were executed in a single day during witch hunts in Germany. And Salem pales in comparison to the mass trials and executions that took place in France and Scotland.
Common law countries value precedent, and Salem has had it in abundance, not just throughout Europe, but throughout the centuries. It is true that in 1692 the madness began to simmer on the other side of the Atlantic, but it was by no means over. Folklorist George Lyman Kittredge found nothing remotely strange about the Salem trials. Rather, he declared that it was "inconceivable that the colony could have survived its first century without a particular series of chargesâinconceivable, shall we say, to anyone who knows what happened in England and the rest of Europe during that period." "George Lyman Kittredge, Witchcraft in Old and New England 367 (1956).
As in Europe in general, the Salem witch trials came at a time of political turmoil. In 1629, the crown issued a charter that, among other things, made possible the establishment of a general court. For reasons we need not elaborate on here, England dissolved the charter in 1684, leaving the town of Salem to function in 1692 with virtually no regular form of government. When William Phips, the newly appointed governor of the province of Massachusetts Bay, returned from England in May 1692, he found the bankrupt political and judicial system overwhelmed with accusations of witchcraft and the colony's jails full of suspects. He had to do something fast.
Phips rose from poverty to become successively a shepherd, a shipwright, a sea captain, and finally a successful fortune hunter who achieved immense wealth. He was fragmented and witty, but unfortunately he lacked a legal background. So he created, largely on the English model, the Court of Oyer and Terminer - literally "to hear and decide" - to deal with the dire circumstances he encountered. Phips would later regret this decision and dissolve the court he had created.
The judges used to conduct the trial were mixed at best. Three of them (Chief Justice William Stoughton, Justice John Richards, and Justice Wait Winthrop) were close friends of the Reverend Cotton Mather, one of the main instigators of the witch hunt, and attended his church. Mather dedicated one of his books to Winthrop, and Richards consulted Mather about the importance of evidence offered in trials. One of the judges, Nathaniel Saltonstall, was so disillusioned after the first trial that he walked out. Judge Samuel Sewell persisted in the job, but years later wrote an impassioned confession of his wrongdoing.
The law that these judges applied was not a masterpiece of clarity and rule of law. Paraphrasing a biblical passage from the Book of Exodus, Massachusetts law strictly states: "If any man or woman is a witch (having or consulting a spirit familiar), he shall be put to death." Justices of Oyer and Terminer were instructed to apply this law in deciding cases and also, mysteriously, to act "according to the law and practice of England".
The Court of Oyer and Terminer held witch trials four times in 1692, with most sessions lasting several days. The court was able to hold multiple trials during the course of each subpoena because the trials proceeded at an incredibly fast pace, often lasting just over an hour. However, its brevity is not the only reason why most litigants today would find it difficult to view these events as what we call a "trial."
The trial usually began with an appeal by the defendant, with the expectation that even a defendant who pleaded not guilty would openly acknowledge the jurisdiction of the court, a kind of acknowledgment of jurisdiction. That didn't always go as expected, as in the case of argumentative Giles Corey, whose wife Martha has also been accused of being a witch. When Corey refused to make such a concession, the court tried to blackmail his cooperation by punishing him by placing more and more stones on his body until he relented. The story goes that Corey defiantly yearned for "more weight", which his tormentors provided until they finally crushed him to death. Arthur Miller's play The Crucible gives us a grim account of the scene.
After the challenge, the jury made its selection. It was somewhat similar to ours: the process started with a group of 48 men, 12 of whom were selected. Apparently, the defendant could cross-examine the jury and challenge it directly. Once the jury was seated, the prosecutor would begin presenting evidence.
testimonials and rumors
The evidence admitted in these trials generally followed the defendants from previous cases. In the run-up to proceedings, evidence was often provided in the form of "depositions", written statements from alleged witnesses. Ironically, judges tended to prefer such testimony to witness testimony, believing it to be more credible. At a time when there was no easy and reliable way to produce verbatim transcripts of oral testimony, a written document seemed more reliable and avoided disputes over witness testimony. Testimony admitted during preliminary hearings was generally readmitted during trial.
Today we would be quick to dismiss such evidence as a flagrant violation of the rule of hearsay, but in 1692 that doctrine was not fully developed. The use of various extrajudicial testimony by prosecutors during the infamous treason trial of Sir Walter Raleigh in 1603 helped prompt the development of the ban on rumours. (Interestingly, 1604 marked the passage of the most draconian of the various English witch laws - a bad time for justice and due process.) But hearsay doctrine developed slowly, taking nothing resembling its modern form until the early 18th century. .
The Salem witch trials remind us why we have a hearsay rule and why we must be careful about taking actions that could undermine it. In this regard, it is concerning to note that the version of the hearsay doctrine that currently appears in the Federal Rules of Evidence is subject to more than 30 exceptions and exclusions, including a potentially bizarre blanket exception that has thankfully not been realized. . Still, the evidence admitted under our diluted rule is far more credible than the evidence admitted at Salem, which for various reasons was just as important as hearsay.
First, the testimony used in these trials did not only include out-of-court testimony from individuals who had personal knowledge of the subject of their testimony, which would have been sufficient hearsay testimony. Rather, as Salem archivist and historian Richard Trask points out, they also included "second-hand hearsay" and "fits of fantasy." See Richard B. Trask, Legal Procedures Used During the Salem Witch Trials and a brief history of the published versions of the records, in Records of the Salem Witch Hunt (Bernard Rosenthal ed., 2009). In fact, by perusing some of these testimonials, the reader may find it difficult to appreciate exactly how many levels of rumors are involved.
Then there are the issues of time and preservation. Even today, we sometimes believe that extrajudicial testimony is credible because it was made during or shortly after the events in question, before memories had a chance to fade and distortions had a chance to set in. 5) contains an exception for earlier written observations by a witness, so-called "recorded past memories", for precisely this reason.
However, as Trask points out, a close examination of the Salem documents shows that many of them were not written at a specific time. Rather, they were revised in the course of the proceedings and supplemented by additional text. It appears, then, that these documents were not so much fixed snapshots of a witness's knowledge, but rather evolving narratives that changed with the prosecution's theory of the case.
Then the question arises who created these documents. According to Trask, analysis of the handwriting suggests that Thomas Putnam wrote much of the testimony of prosecutors and other witnesses. No one could describe Putnam as a disinterested and objective writer. Salem's first accusers included his wife, Ann, and his 12-year-old daughter. Thomas himself was a complainant in dozens of cases and testified in 17 cases.
We have a hearsay rule based on concerns about the reliability of out-of-court testimony, and for the reasons discussed above, the testimony offered in Salem earned a triplet of unreliability. In many cases they came in an unreliable form, unreliably prepared, written by an unreliable scribe. Of course, they were not all equally suspicious. But few, if any, would meet today's testing standards, and many would fail for a variety of reasons.
present evidence
Argument in the Salem trials usually began with the reading of testimony against the defendant from various witnesses. Although these witnesses may appear in person to summarily swear that their testimony is true, this type of hearsay trial offered no greater guarantees of reliability. Finally, in the Oyer and Terminer trials, the defendants did not have the right to question the people who signed the statements against them.
A few living witnesses gave material testimony, mainly the defendant, who did not enjoy privileges against self-incrimination. In this exceptionally unequal system, the prosecutor could cross-examine the defendant or any other person who came to defend him. The prosecutors, particularly the notorious John Hathorne, were for the most part highly skilled and effective at their job.
For example, consider Hathorne's interrogation of Martha Corey. Hathorne once asked him, "Would you serve the devil for ten years? Say how many? Americanist Katherine Howe, scion of three Salem witches, points out the trap that begs the question: if the witness says yes, then he has granted a pact." decades with Satan; if you say no, the prosecutor will ask you how many years you have agreed to serve. The witness, perhaps sensing his intractable dilemma, responded with a laugh. See The Penguin Book of Witches 272, #18 (Katherine Howe ed. , 2014).
Or think of the interrogation of Martha's husband, Giles, whose gruesome fate was outlined above. The prosecutor (probably Hathorne) asked Corey, "What temptations have you had?" Corey proudly replied, "I've never been tempted in my life." Hathorne continued, "What, did you make it without temptation?" As Katherine Howe points out, Hathorne cleverly transformed a plea of ââinnocence ("I've never been tempted') into a stunning confession ('I made a deal with the devil even though I wasn't tempted'). I walked. at 275 n.5.
It seems that no amount of denial could absolve a defendant of Hathorne's interrogation tricks. At one point during her questioning, the alleged witch Bridget Bishop blurted out, "I don't know anything about that. I'm innocent to a witch. I don't know what a witch is." To which Hathorne calmly replied, "Then how do you know that Aren't you a witch?" I walked. at 168.
character test
However, hearsay is not the only category of evidence that we now generally ban, but which has found a welcome home in the Salem witch trials. The court also accepted evidence of the suspect's bad or suspicious character. The evidence came in all formsâreputation, opinion, and claims of specific actionsâand counted everything from awkward personal interactions to malicious rumors. A strong confirmation bias helped keep things going: many of the defendants were socially excluded for one reason or another, and likely became the target of a witchcraft charge precisely because of their outsider status.
This focus on character made a wicked sense. Early English witchcraft was concerned primarily with the maleficium: the damage the alleged witch was said to have done to the victim's person or property. These laws treated witchcraft as another crime and made it relatively irrelevant whether the defendant had committed it by arson, poison, or curse. The 1603 Act, however, focused its attention on the status of the accused and treated the simple act of being a witch more clearly than a criminal.
The aforementioned colonial statute followed this model. Technically, proof that the defendant had used witchcraft to physically harm someone or damage their property was not required; The crime was simply being a witch in consultation with family members. In practice, of course, most of the time the evidence included some evidence of harm, since that was what triggered the initial claim and set things in motion. But the law that controlled Salem made the character the centerpiece of the case, so the evidence was of great importance at trial.
In fact, one could argue that of all the proof principles that got Salem into trouble, relevance did the most damage. To understand why, we must remember that experimentation does not occur in a vacuum and that no experimentation seeks to create a universe of realities out of nothing, as an act of divine creation. As noted legal scholar Carl Thayer observed, "the trial cannot rebuild each case from scratch, since Descartes creates a world based on the cogito, ergo sum postulate." lined Evid. 201 Note from the Advisory Committee.
Rather, court hearings take place in the context of interpretations of events that are generally shared by community members. In this sense, we judge in the context of âwhat everyone knowsâ. That's true today, when all jurors, for example, have a basic understanding of things like cars, appliances, and health care. And it was true in 1692, when all the jurors had a collective elementary understanding of things like becoming a witch, how witches did their evil work, and how evil creatures could be identified.
Thus, in 1692, the people of Salem knew that one became a witch by making a pact with the devil, who often appeared as a man dressed in black. They knew that witches had at least one mark on their bodies. The devil could abandon you once the witch agrees to serve him, or the witch could create a small nipple to feed her "familiars" (cats and other creatures that do her bidding), or both.
They knew that witches were often seen in the presence of their family members. They knew that witches could shapeshift, travel through the air, and appear in ghostly forms to their targets. They knew that witches used puppets (sometimes called "dolls") to cast their curses. They knew that a witch couldn't say the Our Father without tripping. Etc.
At the end of 1692 serious doubts arose about the trials, eventually leading to the dissolution of the court of Oyer and Terminer. But historians generally agree that this skepticism has to do with the effectiveness of the processes in identifying witches with reasonable certainty for a capital case. Even after the trials were over, people continued to believe in witches and the signs that went with them, such as signs, familiars, and apparitions. "What everyone knew" about witches became stubbornly fixed and remained so for some time.
These beliefs made relevant a wide range of evidence that, in retrospect, seems utterly absurd to our 21st century eyes. Today it would be perfectly normal for someone to have a mark on their body or to be seen in the company of a dark-clothed man or a pet, carrying dolls around the house, or having difficulty reciting the Lord's Prayer perfectly. when his life depended on it (particularly when he was illiterate or not fluent in English, as was the case with some of the defendants). In the Salem witch trials, however, all of these events had a grotesquely exaggerated significance.
But it gets worse, in two ways. First, the belief that witches could appear to the damned in spirit or spectral form allowed accusers to witness their dreams and visions. The use of "spectral evidence" has been controversial, with Cotton Mather defending it and critic Robert Calef harshly condemning it. Calef made a damning charge against the practice, and Mather responded by burning Calef's book in Harvard Yard.
Second, the absence of these facts does not necessarily exonerate the defendant due to the prevailing demonology at the time. The devil can appear as a dark man, but he can also manifest as a small child or animal, testifying that the accused has been seen in the presence of virtually anyone or anything that suggests guilt. The lack of a visible mark on the defendant's body could mean that the devil helped hide it, or that the witch allowed the nipple to dry out to avoid detection.
A particularly striking example of the difficulty of providing exculpatory evidence is the Our Father. Ironically, one of the accused witches was former Salem Village pastor, the Rev. George Burroughs. Prosecutors have not presented much of the conventional evidence against Burroughs, for example, that he had the required mark on his body. However, the jury found him guilty and sentenced him to hang.
When Burroughs was executed, he recited the Lord's Prayer without hesitation or error. This development gave the crowd that had gathered a breather. But Cotton Mather dismissed his concerns, pointing out that Burroughs had been duly convicted and that the devil often deceptively appeared as an angel of light. Mather's argument must have won, for four more executions followed.
In short, "what everyone knew" in Salem made it virtually impossible for the defendants to refute the charges because no facts would prove their innocence. Therefore, an accusation inevitably led to a conviction and execution. Today we believe that a fair and just trial is based on a falsification principle: relative to each side's narrative, there must (at least in theory) be a contradicting narrative. The Court of Oyer and Terminer did not follow such a rule.
"What everyone knows" today
Before we roll our eyes at the resulting injustices in Salem, let's consider how "what everyone knows" continues to shape our laws and judgments. And we should be humble enough to acknowledge that some of our current unwavering beliefs will no doubt be seen as embarrassing nonsense for years to come. As Justice Holmes wisely observed in one of his most famous dissents, "Time Has Troubled Many Militant Faiths" Abram v. United States, 250 US 616, 630 (1919) (Holmes, J., dissent).
There are numerous scientific examples of this. For example, for many years (until the 1980s) investigators believed that certain facts conclusively indicated that a fire had been started intentionally. These clues included things like leak patterns in the scorch marks on the floor, or signs of extremely high temperatures in certain places. Investigators believed that such evidence indicated the presence of an accelerator and therefore determined the cause to be arson. This chain of reasoning has become the gospel of science.
However, in the 1990s, scientists published research challenging these claims. Entrenched beliefs resist exorcism, so it took a while for this science to reach the courts, prosecutors, and defense attorneys. But in 2004 it became common knowledge that for many, many years, fire investigators simply didn't understand how fire works. It turned out that the factors they identified correlated at least as well with unintentional fire as they did with deliberate fire.
"Expert" testimony based on this misunderstanding led to the arrest of countless innocent defendants. In a way, these wrongfully convicted were no less victims of false and magical thinking than the 19 people executed at Salem. Everyone knew something with moral certainty, and everyone was wrong.
The science of arson is not an isolated phenomenon either. Similar reversals have occurred with other principles once considered very reliable (such as certain forms of candy analysis) and debates continue (such as the "Shaken Baby Syndrome" evidence). See Caitlin M Plummer and Imran J Syed, "Misplaced Science" Revised: Leak Delays and the Persistence of Misconceptions Based on Outdated Science, 46 Cleveland State L Rev 483 (2016). We should never trivialize the Salem tragedies, but numerically they pale in comparison to these mistakes of our own time, the human cost of which was enormous.
I'll end with this thought: the people of Salem believed that the devil was at work in their church. Turned out they were right, it just wasn't what they were looking for. This demon took the form of refusal to advise, rude gossip, slander, and an unwavering trust in "what everyone knows." The New Testament tells us that the devil, without tempting Jesus, left, but he planned to return at an "appropriate time." Our responsibility as litigants, prosecutors, defenders and judges is to prevent this time from being our time.