Pre-trial Procedure

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Chapter 1
Pre-trial Procedure

The crime of witchcraft was created by statute in the middle of the sixteenth century, but proving this crime, which was committed through the use of indiscernible devilish powers, posed a grave problem. The application of the anti-witchcraft legislation was intertwined with, and shaped by, significant and simultaneous developments in criminal procedure and evidence law. Shapiro even suggested that the development of standards of proof eventually brought about the disappearance of the crime of witchcraft.1 The prosecution of witches decreased in the last decades of the seventeenth century, while the rules of evidence became increasingly articulated and widespread around that time.

The procedure for witchcraft cases was the same as the general criminal procedure, with the exception of a few witchcraft-specific presumptions. The use of illegal tests (such as swimming or pricking) by villagers was also typical of witchcraft cases, but these were not part of the official proof system. Yet, much of the procedural and evidentiary transformation of English criminal law developed in the context of the witch trials. Having no divine guidance through the ordeals, and deprived of the confession-inducing mechanism of torture, the English had to seek a way to discover witches. Discovering true witches necessitated consideration and moulding of procedural and evidentiary tools: What was a good proof for witchcraft? What level of certainty was required for a conviction? How could innocent people be protected from false accusations?

The 200 years from the mid-sixteenth to the mid-eighteenth century spanned the period between medieval criminal law, which had not yet fully recovered from the abandonment of the ordeals, and a legal system of human adjudication. It was an era of transformation from criminal prosecution at the will of individuals to the establishment of a state-run prosecution apparatus. The law of evidence, non-existent at the beginning of the period, crystallized toward the end of that era into a set of rules whose basic principles are still applicable today. The standard of proof beyond reasonable doubt was emerging. The defendant’s considerable procedural inferiority was ameliorated by the birth of the rights to be represented by counsel, to get a copy of the indictment and investigatory materials, to testify under oath and to call defence witnesses. Lawyer-free altercation between the accused and the accuser was replaced by the adversary criminal trial around the 1730s.2 Beginning with the last decades of the seventeenth century, the newly introduced involvement of lawyers and their various objections to different kinds of evidence, and the manner of their arguments and examinations in turn, contributed to the development of standards of procedure and evidence rules.3 The most influential role of defence attorneys was the cross-examination (commonly dubbed ‘art’ by lawyers) of the prosecution witnesses, which aimed to discover their biases and perceptual deficiencies.4 The defence infused the notion that not all the evidence submitted by the prosecution must be given weight. Consequently, in the eighteenth century, mechanisms of exclusionary rules intended to shield the defendant from prejudicial or immaterial evidence began to take form.5 Jurors, grand or petty, no longer served in a testimonial role, and they no longer needed to be acquainted with the accused or reside in close vicinity to the crime, but rather received the evidence from the prosecution.6

Passing criminal adjudication into human hands is the best explanation for these transformations. The development, however, was slow and gradual. Tracing the turning points in the process by which existing legal notions became articulated through formulae of exclusionary rules is illusive. On the Continent, the Roman-Canon law developed an intricate and elaborate system of proof standards in which professional judges resembled mathematicians setting variables into a formula. In England, the already existing institution of the inquest, or jury, expanded to fill the vacuum left by forsaking the ordeals, and fact-finding was shifted to lay judges and the jury.7 God is omniscient, but human adjudication required convincing proof, a need that generated the development of standards of evidence. Human adjudication depends on information; therefore, crimes need to be investigated. The Marian laws, enacted in 1554 and 1555, created a unified pre-trial procedure of investigation for all serious crimes, including witchcraft. A state-run apparatus of investigation and prosecution also contributed to the creation of standardized methods of investigation and proof.8 The established system of travelling assize judges, who tried practically all the serious crimes, reinforced unified standards of procedure and proof.

At three stages of the criminal procedure it was necessary to determine the guilt of the witchcraft suspect, and each stage required a consideration of proof. Different participants controlled the determination at each stage. The justice of the peace ( JP), on the basis of accusations and testimonies brought before him, was the first to determine whether the evidence was sufficient for the case to proceed. If he decided affirmatively, he committed the suspect to jail or released her on bail. In such cases, the JP conducted a pre-trial investigation that included an examination of the suspect. At the second stage, the grand jurors decided whether the evidence supported the bill of indictment that was normally drafted by the court clerks and included the formal charges against the accused. If they found the bill to be ‘true’ (a billa vera), it became an indictment, and the case proceeded to trial. The petty jurors decided the outcome of the last stage. They determined whether the defendant was to be convicted or acquitted on the basis of the evidence presented at trial. The anti-witchcraft laws listed forbidden acts but did not specify how to prove them. The practices of evidence and criminal procedure filled the statutes with content. Acquaintance with the procedural stages is essential for understanding how the contemporaries struggled with the problem of proof.

Steps of the Pre-trial Stage

The ‘Bringing’: An Initial Arrest by a Constable or Neighbours

The initiation of a criminal proceeding against a defendant required legal tools to secure the physical presence of the suspect for investigation and trial. The Marian statutes set the procedure for bail or committal by the JP, who was usually not a lawyer,9 and laid the ground for a pre-trial examination. Langbein noted how the phrasing of those laws presupposed that the suspect was ‘brought’ before the JP by ‘them’10 or ‘those’11 ‘that bring him’.12 The bringers might be the constable, neighbours who assisted him in case the suspect opposed the arrest, complainants or witnesses. The constables,13 as Sir Thomas Smith lamented, ‘were at the first in greater reputation than they bee nowe’.14 In the past, Smith added, the constables had enjoyed a prestige similar to JPs. However, that had changed by his time, ‘for so much as every little Village hath commonly two Constables, and many times artificers, labourers, and men of small abilitie be chosen unto that office, who haue no great experience, nor knowledge, nor authoritie’. The judicial proceeding, therefore, was launched after the suspected witch was brought before the JP.

In the early days of the common law, the authority to arrest was inherent not only in constables, but in private persons as well. Judge Hale opined that a private person must commit an arrest in three situations: (1) on witnessing another commit a felony, (2) on ‘hue-and-cry’15 and (3) in aid of an officer acting under a warrant.16 A private person, according to Hale, could arrest another on ‘probable cause’ on suspicion of a felony or accompany a public officer, even if the latter had no warrant.17 A constable could also arrest a person if he had reasonable grounds to suspect that the person had committed a felony, no matter whether such felony had been committed. Smith affirmed that ‘everie English man is a Sargiant to take the theefe’.18

By the mid-sixteenth century, the established concept of the breach of peace buttressed the authority of law enforcement officials to arrest. Lambarde, a lawyer trained at Lincoln’s Inn and the author of significant legal treatises,19 explained that whenever a person was suspect in a breach of peace, the officers could ‘carry’ them before the JP and be assisted by neighbours to compel the suspect to come.20 Subsequently, if a suspect ignored a JP’s warrant to provide a surety for keeping the peace, then ‘the Officer may (upon that Warrant) arrest and carry him to the Gaole’.21

Thomas Greenwel, in A Full and True Account of the Discovering, Apprehending and Taking of a Notorious Witch, described the apprehension of Sarah Griffeth, a witchcraft suspect, and the manner of bringing her before Justice Bateman in 1704.22 Sarah Griffeth ‘was long time suspected for a bad woman, but nothing could be prov’d against her, that the law might take hold of her’. That was the case until one day, following an incident with ‘a good jolly fellow’, the apprentice of one Mr John, the latter,

fearing some further mischief, takes a constable and goes to her lodging where he finds the old woman, and charges the constable with her. She made many attempts to escape, but the Devil who owed her ashame had now left her, and she was apprehended. As she was conducted towards the Justices house she tried to leap over the wall, and had done it had not the constable knocked her down. In this manner she was carried before the Justice.

The apprentice, the alleged victim, was also accompanying the group, for the pamphleteer mentioned that on their arrival he gave testimony before Justice Bateman. The initiative in the description came from a private person, the complainant’s employer, who located the suspect, brought the constable and accompanied them to the JP’s house. Relying on the same Mr John’s complaint, the constable apprehended the suspect without a warrant or a need to apply for one prior to the apprehension. Sarah Griffeth ‘made many attempts to escape’, including a leap over the wall on reaching the JP’s home. It is obvious that she was brought forcibly, until eventually the constable ‘knocked her down’ and she was physically carried into the JP’s house. The authority to apprehend suspects included the use of physical force, as it is likely that many suspected offenders would not have come before the JP of their own free will. It may even well be that the use of arms was allowed for that purpose.23 In any case, the frequent use of the verb ‘to carry’ denotes the forceful apprehension of unwilling suspects.24

The JP, to whose home the suspect was carried or brought, then had to determine the subsequent treatment of the case. Therefore, the initial stage of witch prosecution was the bringing before the JP.25

Appearance before the Justice of the Peace and the Examination

The proceeding following the apprehension took place at the JP’s house. During the hearing, the JP heard the allegations and was authorized to issue pre-trial orders to ensure the gathering and preservation of evidence for the upcoming proceeding before the assize judges. Many times, the JP tried to arbitrate the dispute and help the parties reach a settlement.26 He decided whether bail was sufficient or whether committal of the suspect to prison was required to ensure appearance at trial. He also gave orders regarding the appearance of witnesses, including sureties, and could order additional investigation, such as conducting a search or questioning more witnesses. In case the evidence was insufficient, the JP could order that the suspect be arrested for further examination for three more days, during which investigation could advance.27 For the JP to commit the suspect to prison, ‘a fewe lines signed with his hande is ynough’.28

The JP’s input and determination were critical to the development of the case.29 Failure to ensure suspects’ and witnesses’ appearance often frustrated the possibility of any future conviction by the assize judges, who held hearings only during their semi-annual visits. It is obvious why suspects would shun criminal prosecution (especially considering the mandatory hanging in felony cases). However, complainants and witnesses were also prone to change their mind regarding the pursuit of the case. The time lapse between the initial complaint and the assize session allowed angry complainants to cool off and consider the consequences – significant costs (court fees and witnesses’ expenses) and the mandatory punishment for felonies. Cooperating witnesses could also reconsider the trouble and expense that their appearance entailed.

To assess the need for bail or committal to jail, the JP interrogated the suspect and the witnesses. In fact, the Marian laws required examination. The statutes were enacted to overcome overly generous, or corrupt, bailing practices of the JPs. The preamble of the first Marian law, the bail statute, explained how JPs took little notice of a 1487 law30 that required bailment in appropriate cases by at least two JPs, one of whom had to be ‘of quorum’ (commissioned to sit in the quarter sessions or hear and determine out of sessions). The preamble further denounced the practice of the JPs to set the offenders free and frustrate the possibility of their conviction.31

The bail statute provided that in serious cases, manslaughter or felony,32 no suspect should be released on bail by the JPs unless several conditions were met. As under the 1487 statute, non-complying JPs were susceptible to fines, one of the justices had to be of quorum, and the justices needed to certify the bonds by their signature and submit them to the judges of the next gaol delivery. The bail statute further determined that bailment had to be conducted by two justices sitting ensemble. This provision meant to rectify the existing practice of JPs’ bailing suspects single-handedly by using the name of another necessary JP without his knowledge or permission.33 The most significant novelty, however, was the adoption of the procedure of examination. The JPs,

when any suche Prysoner ys brought before them for any Manslaughter or Felonye, before any Bailement or Maineprise, shall take thexaminacon of the said Prysoner and informacon of them that bringes him, of the facte and circumstances there of, and the same, or asmuche therof as shalbee materiall to prove the felonye, shall put in writing before they make the same Bailemt, which said examinacon together with the said Bailemt, the said Justices shall certefie at the next generall Gaole Deliverye to bee holden within the lymytes of their commission.

As this excerpt makes clear, JPs were allowed to bail suspects in cases of manslaughter and felony only if they had previously examined both the suspects and their bringers. Two justices were required for the issuance of a bail, but one JP was sufficient to conduct the examination.34

The second Marian act,35 the committal statute, broadened the range of mandatory examinations. It further stated that examination should also be undertaken when the suspect was committed to jail. There was no quorum requirement, so, as in jail committal, a single JP sufficed. After an examination the JP had no authority to discharge the suspect without bail, even if he believed the suspect was innocent.36

Neither statute required the examination of the suspects or witnesses under oath. The lack of an explicit statutory arrangement was the subject of disagreement among the contemporary justices.37 The oath advocates, such as Lambarde, argued that the use of an oath would allow admitting the examination into evidence in case one of the witnesses died before the trial.38 This was one of the claims that supported Langbein’s argument that the examination had no evidential value in the trial itself. Some courts admitted depositions of dead or absent witnesses, provided that they had been examined under oath and that the JP or his clerk was sworn to the truth thereof.39 Dalton also supported the oath and emphasized the value of warning witnesses to testify truthfully.40 Yet, Dalton maintained that only incriminating evidence could be taken under oath.41

It appears that there was no established practice with regard to the oath and that some justices did question suspects under oath. For example, in the examination of John Walsh in 1566, who was suspected of sorcery, ‘He sayth by the othe that he hath taken’ that he never hurt anyone’s body or goods.42

The first part of the examination was the oral inquiry. Unlike the procedure on the Continent, there was no rigid paradigm of inquiry. The JP heard the complaints and allegations of the bringers, be they the victim, witnesses or second-hand informants. The suspect was under no legal obligation to articulate a statement and could be uncooperative if he or she wished (the lack of a plausible explanation, however, could diminish the chances of being released). There were no rules of evidence or any required order of questioning. In fact, anything could be brought up before the justice – hearsay information, speculations, indications of reputation and even gossip.43 Elizabeth Stile, for example, was arrested after being brought before the JP and arrested as a witchcraft suspect after ‘honest neighbours’ reported her to be a ‘leude, malitious, and hurtfull woman’.44