Searching for Reliable Testimony

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Chapter 11
Searching for Reliable Testimony

By the end of the sixteenth century, keeping liars out of court was facilitated by a system of competence rules that prevented witnesses belonging to undesirable categories from testifying. These exclusionary rules were more lax in cases of witchcraft because of the probative difficulties. In criminal trials there was as yet no right to defence witnesses, and the witnesses for the prosecution all testified under oath and were not subject to cross-examination. It was routinely held that a witness who testified under oath must be believed unless directly contradicted.1

The seventeenth century saw a conceptual shift in the domain of evidence. Rather than the quantitative approach of considering the number of witnesses or aggregates of presumptions being of greater importance, the emphasis shifted to rules assessing the quality of the evidence, that is, the validity and the probability of witnesses’ testimony. In a chapter titled ‘Evidence’, Matthew Hale referred solely to competency rules and substantive law issues.2 Yet, Hale distinguished between competency and credit: ‘for the excellency of the trial by jury is in that they are the triers of the credit of the witnesses as well as the truth of the fact; it is one thing, whether a witness be admissible to be heard, another thing, whether they are to be believed when heard.’3 There was a shift from evidence as a field of substantive law (what facts support the indictment), a concept that vanished in the nineteenth century, to a system of rules governing proof at trial and excluding immaterial matters.4 By the eighteenth century, Gilbert already discussed the evaluation of witnesses’ credit and weight.5

Toward the end of the sixteenth century, doubt began to surface as to whether oath-taking was sufficient to ensure the truthfulness of testimony. One pamphlet of 1585, concerning witchcraft proceedings in the Old Bailey, related how ‘by the severall othes of sundrie honest persons, these matters were prooved’.6 The number of witnesses was not the only consideration, but personal qualities such as honesty mattered as well. Still, jurors were perplexed when they faced objectionable testimony that was nonetheless given under oath. Sam, one of the characters in Gifford’s Dialogue, expressed his distress as a juror in a witchcraft case:

If she were innocent what could we do lesse? we went according to the euidence of such as were sworne, they swore that they in their conscience tooke her to bee a witch, and that she did those thinges.

Another character, Dan, answered with a question of his own:

If other take their oath that in their conscience they thinke so, is that sufficient to warrant men vpon mine oath to say it is so?7

Gifford explicitly expressed the worry that sworn testimony was not necessarily true. He wondered what the jurors should do when they suspected the testimony of the witnesses to be perjury but could not prove it.8 Gifford raised the question but did not provide a full and practical answer. Naming the acceptable proofs in a witchcraft trial, Dan allowed for ‘proofe by sufficient witnesses’ or the confession of the accused. Yet, he warned that the testimony of the witnesses might be unreliable, being either indirect or manipulated by the devil:

The testimony be such as may be false, as al that commeth from deuils is to be suspected: or if it be but vpon rumors, and likelihoods, in which there may be exceéding sleights of Satan, as for the most parte there be: how can that Iury answere before God, which vpon their oath are not sure, but that so proceéding they may condemne the innocent, as often it commeth to passe.9

Gifford’s discussion of the reasons for perjury is hardly exhaustive. He did not even suggest an outright lie, made out of malice, as a possible ground for perjury. He warned the jurors not to accept sworn testimony automatically but did not provide them with means to overcome their distress. Yet, by articulating the doubt, Gifford paved the way for the developing concepts of credibility and weight, and for the shift to a rigorous examination of the content of testimony.

Beginning with the seventeenth century, the texts no longer implied that testimony should be accepted solely by virtue of the oath, and the manner and content of testimony began to be scrutinized. Some authors deduced veracity from the manner of testifying. For example, Thomas Potts was impressed by the manner in which nine-year-old Jennet Device testified. Despite her youth, the great audience in court and the fact that she testified against her own brother, Potts commended ‘with what modestie, governement, and understanding, shee delivered this Evidence’.10 Potts also paid attention to the facial expressions of the witnesses.11 It is likely that the account of Potts, the clerk of the assize, provides us with a glimpse of the judges’ nascent awareness of the body language of witnesses.

Authors also noted the coherence of testimony. Evasive answers reflected negatively on the witness’s truthfulness.12 Consistency among the testimonies of the different witnesses also signified higher probability of truthfulness. According to Casaubon, if the examination revealed that ‘more then one, ten, or twenty’ witnesses agreed ‘in all points and particulars’ and their testimonies were supported ‘with notable circumstances’, then they were most likely to be true.13

The motives and interests of the witnesses also began to be inspected. Cotta believed that, just like facts of nature, witchcraft was a fact that could be observed and learned about from the accounts of the observer. Yet, such observations could be the basis of an indictment only on the fulfilment of two conditions. First, ‘the witnesses of the manifest magicall and supernaturall’ should have no interests and be ‘free from exception of malice, partialitie, distraction, folly’. Second, the testimony had to refer to a matter ‘manifest vnto the outward sense’. As it was not always clear whether supernatural matters could be perceived by the senses, Cotta suggested assistance ‘by conference and counsell with learned men, religiously and industriously exercised, in iudging in those affaires, there bee iustly deemed no deception of sense, mistaking of reason or imagination’.14 Cotta believed it was possible to distinguish between imagination ‘from within the brain’ and matters perceived by ‘the outward sense’.15 Cotta’s criteria, the observer’s impartiality and perception by the senses, were grounded in an empiricist worldview and required the assistance of experts, such as ‘learned men’.

William Drage (1637?–99), a medical writer who practised as an apothecary at Hitchin, Hertfordshire, and a profound believer in astrology and witchcraft,16 also emphasized the importance of impartiality. According to Drage, it was the impartiality that made accounts of witchcraft credible. Drage argued that if many witnesses reported instances of witchcraft, ‘specially they not allured by Gain, or obliged by Interest, or superstitionated by Education, or forced by rigour of Authority’, then it must be true.17 It was the quantity and experience of unconnected witnesses in different countries and different times that proved the existence of witchcraft. Although Drage discussed proving the existence of witchcraft in general, his criteria for impartiality were broad yet applicable to individual cases (as within individual cases as well, the coherence between the testimonies of unrelated and impartial witnesses made their accounts credible).

Bernard wrote a thorough account of the consideration of testimony. Like Cotta, he supported pre-trial evaluation of testimony. In his Guide to Grand-Iury Men …, he listed possible concerns regarding the credibility of different types of witnesses and even suggested a questionnaire to be answered by the various witnesses to better assess their qualities as witnesses.18 Bernard’s writing blended concepts of competency and credibility. For example, he supported using ‘indifferent neighbours’. Yet, he alerted, some of them were ‘fearfull, superstitious, or children, or old silly persons, whose testimonies are to be heard, but not easily credited, as being persons in such a case as this is, very much subiect to mistaking’.19 In the same sentence, Bernard referred to broad categories (such as children) that did not necessarily bear on the truthfulness of an individual witness and to personal attributes, such as being superstitious. The paramount principle was to find the witnesses worthy of credit. After evaluating who should be believed, Bernard moved on to determine what the testimony should include. For the ‘conscionable’ neighbours ‘of understanding’, Bernard composed a list of questions that pertained both to matters of perception (what the witness observed) and opinion (about the parties and authenticity of the bewitchment).20

‘Suspected aduersaries’ was the next category of witnesses. These were people who might be motivated by ill will toward one of the parties. Yet, Bernard argued, nosy and inquisitive neighbours might be valuable, as they ‘will pry very narrowly into euery thing, to discouer what they desire to finde. Therefore though it bee wisedome to suspect ill will, yet may some things be found out by them, which otherwise may be mistaken, or lye hid.’21 He similarly made a list of questions to be presented to this type of witness. Another category of witness was ‘the suspected Witches whole family able and fit to answer’. Many of the questions Bernard prepared for these witnesses related to matters perceived by their senses, such as seeing the suspect’s witchcraft acts and artefacts; hearing the suspect’s curses, recital of charms or admission; and even smelling ‘noysome and stinking smell’.22 Overall, Bernard’s two main considerations in assessing testimony were the qualities of the witness and the type of information the witness could provide. Both Bernard and Cotta aimed to determine the genuineness of the testimony at the pre-trial stage. According to their arguments, the grand jurors should have been able to evaluate the witnesses before deciding whether the case should proceed to trial.

From the 1670s on, authors of witchcraft pamphlets routinely hailed the credibility and reliability of their informants, usually at the beginning of the text. A pamphleteer opened with the following statement in 1671:

These Particulars, with many others omitted, I received from eye Witnesses of unquestionable credit, and reputation, and you may no more doubt the truth of them, than distrust the affection of

Sir.

Your most humble Servant.

I.A.

Hereford 1 March 167023

A pamphleteer declared in 1678 that the following account ‘being matter of certain truth, deserves to be inserted in a Chronicle, rather than a Penny Pamphlet’. He added that despite the ‘strangeness’ of the events, there were ‘multitudes of … Neighbours ready to attest it’.24 An author in 1681 began with a warning: ‘Let not the Incredulous question the verity of the Sequel, since divers ocular and auricular witnesses can and will upon occasion, testifie the truth of what shall be hereafter asserted.’25 These praises signify the increasing need to establish the credibility of the individual witness.

The reliability of witnesses was used by English theologians to counter scepticism. Bovet, a Puritan theologian, denounced the sceptics who rejected: