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In early 1692, several girls in the colonial Massachusetts village of Salem began exhibiting strange symptoms, including twitching, barking, and complaining of being pinched or pricked by invisible pins. The afflicted girls soon accused several local women of bewitching them, beginning a flood of accusations that threw Salem and the surrounding areas into full-blown hysteria.

The trials that ensued became a cautionary tale as the accused lacked many of the legal protections we take for granted today.

By the time William Phips, the newly appointed royal governor of Massachusetts Bay Province, arrived from England that May, accused witches packed local jails. At the time, the colony was operating without a charter, since the Crown had revoked the previous one due to repeated violations. Phips brought with him a new royal charter that gave the colony’s legislature the right to establish a court. But the process would take time, and Phips had to act quickly.

In a fateful decision, Governor Phips created a special court to try the accused witches of Salem. It was known as the Court of Oyer and Terminer, meaning “to hear and determine” in the Old Northern French that was still standard in English courts at the time. While remnants of this legal language still endure in the modern American legal system —the phrase “oyez, oyez, oyez” begins proceedings in the U.S. Supreme Court, among others—the Court of Oyer and Terminer bore little resemblance to the courts we know today.

Witch Trials: Guilty Until Proven Innocent

William Phips, Governor of Massachusetts from 1692 To 1694. 

William Phips, Governor of Massachusetts from 1692 To 1694. 

When an accused witch appeared in front of the Court of Oyer and Terminer during the Salem witch trials, the law assumed they were guilty. Today, the presumption of innocence, or the idea that an individual accused of a crime is “innocent until proven guilty,” is one of the fundamental rights underlying the U.S. criminal justice system.

With roots in English common law, the presumption of innocence is nonetheless absent from key legal documents such as the Magna Carta or the English Bill of Rights of 1689. It’s not mentioned in the Constitution either, but statutes and court decisions, including the Supreme Court decisions in Coffin v. United States (1895) and Taylor v. Kentucky (1978), later established the presumption of innocence as one of the basic requirements for a fair trial—something none of the accused witches of Salem received.

Admission of Hearsay Evidence & Lack of Defense Counsel

According to Len Niehoff, a professor at the University of Michigan Law School who has taught seminars on the Salem witch trials, the U.S. legal system “includes two vital protections that were absent in Salem, making the tragedy almost inevitable.”

The first is the hearsay rule, a complex legal doctrine that essentially prevents the use at trial of statements made outside of court. Today, the hearsay rule “plays a critical role in ensuring that the evidence admitted is reliable and is based on the personal knowledge of witnesses,” Niehoff explained in an email interview. “It prevents the admission of rumors, assumptions, and community gossip—precisely the sorts of things that drove the Salem trials.”

Debate over allowing hearsay in court trials had begun by the time of the Salem trials, but the doctrine evolved slowly. In a Harvard Law Review article published in 1904, J.H. Wigmore wrote that the “history of the hearsay rule, as a distinct and living idea, begins only in the 1500s and it does not gain complete development and final precision until the early 1700s.”

The second key legal protection that accused witches at the Salem trials lacked was the right to be represented by counsel. “There were no defense lawyers present or allowed at these proceedings to object while their clients were being questioned, or to cross-examine those who testified,” Niehoff says. The inability to cross-examine was particularly damning, he points out, because “most of the witnesses against the accused witches could have been very effectively challenged.”

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Witch Trials Relied on Spectral Evidence

Bridget Bishop

The hanging of Bridget Bishop during the Salem Witch trials.

The Court of Oyer and Terminer also relied heavily on spectral evidence. This evidence, according to U.S. Legal.com “refers to a witness testimony that the accused person’s spirit or spectral shape appeared to him/her witness in a dream at the time the accused person’s physical body was at another location.” The court’s acceptance of spectral evidence was controversial from the start, as it differed from accepted legal practice at the time.

Following the execution of Bridget Bishop, who became the first accused witch to be hanged on June 10, 1692, Governor Phips asked a group of the colony’s leading ministers, including Increase Mather and his son, Cotton, for their opinion on the witchcraft proceedings, and the use of spectral evidence in particular. In a response written on behalf of the group, Cotton Mather urged caution regarding spectral evidence, suggesting that the Devil could in fact assume the shape of an innocent person. But the statement closed with support for the court, as the ministers encouraged “the speedy and vigorous Prosecution of such as have rendered themselves obnoxious.”

Despite the ministers’ tepid warning, the Court of Oyer and Terminer continued to convict accused witches on the basis of spectral evidence. The crisis reached its height in late September 1692, when seven women and one man were hanged as witches on a single day. By then, however, public support for the court was waning. Increase Mather went public with his strong opposition to the use of spectral evidence in witchcraft trials in early October, arguing in his treatise Cases of Conscience that “It were better that ten suspected witches should escape, than that one innocent person should be condemned.”

“It's important to note that the trials didn't end because people stopped believing in witches,” Niehoff points out. “They ended because people stopped believing the trials were doing an effective job at identifying who the witches were.”

On October 29, 1692, Phips dissolved the Court of Oyer and Terminer, a decision that marked the beginning of the end for the Salem witch trials. By May 1693, Phips had pardoned and released all those remaining in prison on witchcraft charges.

In the years to come, judges and juries (and even one of the main accusers) apologized for their roles in the trials. Then in 1711 Massachusetts passed legislation exonerating those executed as witches and paying restitution to their families.

Nearly a century after the crisis in Salem, during debate over ratification of the Constitution, anti-Federalist delegates (successfully) argued that the document needed a "Bill of Rights" to guard against the violation of individual citizens’ fundamental freedoms by the federal government. 

Such arguments may have implicitly drawn strength from the negative example of the Salem witch trials, when accused witches were deprived of even the most basic rights they should have been granted under English common law. That lesson continued to resonate in the centuries to come, especially during periods of crisis such as the Red Scare and McCarthyism in the Cold War era.

“It is in my view difficult to draw a direct line from the Salem witch trials to a specific existing legal doctrine, but I would argue that they have had an immense influence on how we think about the law,” Niehoff says.

“The trials are filled with cautionary tales about how catastrophically bad things can go when legal proceedings fail to offer certain minimum guarantees. They also provide a perpetual reminder of the consequences of fear unchecked by the sort of reasoned judgment that the law demands.” 

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