Trial Procedure

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Chapter 2
Trial Procedure

The question of whether the guilt of the accused had been adequately proved was considered twice during the progress of a trial, first by grand and then by petty jurors. Procedural development, and especially the Marian statutes, reshaped the jurors’ role. Evidence was gathered in advance and submitted for the jurors’ evaluation, and standards of proof began to take form. The enormous difficulty of proving witchcraft led to much discussion about the best evidence and the right procedure to uncover the truth. Important for the trial stages were the roles of the different participants and the interplay between questions of law, fact and procedure.

The Grand Jury and the Indictment

By the mid-sixteenth century, the indictment was the standard measure for criminal prosecution. A private appeal was potentially possible, but the risks involved and the strengthening of the criminal prosecution run by the crown greatly reduced its use. Private appeal was used mainly in situations when it was the only recourse for the victim or the next of kin – acquittal or attaint on indictment in murder cases. By the beginning of the nineteenth century, the private appeal procedure had become obsolete.1

A criminal prosecution could also be initiated on the finding of an inquest held before the coroner that a certain individual had murdered the body examined.2 The Marian statutes granted the coroner duties and powers similar to those of the JP, but this procedure, however, was not typical of witch trials, as they were usually initiated by neighbours’ complaints to the JP.3

Between 1542 and 1736 a process that had already started became crystallized – the members of the grand jury were transformed from active presenters possessing first-hand knowledge of the case into passive indicters.4 This change occurred with the transfer of the investigation and prosecution to the state through its JPs and the law enforcement officers of the local government. The grand jurors were no longer required to name the suspects themselves or to submit their own information about the local crimes. Instead, they examined the bills of indictment prepared in advance of the session and the evidence for the crown. The bills were normally prepared by the clerks, though some were prepared by the prosecutors’ solicitors.5 The grand jury’s main function was to evaluate the evidence and weed out the cases in which there was a lack of substantial proof. If the prosecution had a prima facie case, the grand jury returned a billa vera, the suspect would be indicted and the case would proceed to trial. Otherwise, the grand jury would return an answer of ignoramus, ‘we do not know’; the suspect would be released, and the case would be dismissed.6 The endorsement of either a billa vera or an ignoramus required a majority of twelve votes.7 The grand jury’s answer was pronounced by the clerk, who declared: ‘Gentlemen, you find “a true bill”, or “no true bill”’.8

The panel, previously selected by the sheriff and sworn in, examined the bill of indictment.9 A foreman, chosen for either his superior social status or legal knowledge, presided over the grand jurors.10 The number of grand jurors varied from 13 to 23, but at either forum a minimum of twelve jurors needed to vote on the answer.11

There were diverse views as to the standard of proof or convincement required for a billa vera. The range stretched from a prima facie case (Hale) through a ‘meet’ or ‘fit’ case, which called for ‘a strong and pregnant presumption’, through ‘thorough persuasion’ (Blackstone) up to the same burden as required by the petty jury.12 The existence of sufficient proof could be evaluated on the basis of the prosecution’s evidence alone. Therefore, the grand jurors heard testimonies of the alleged victims, prosecution witnesses and the examining magistrates, and the written examinations were sometimes read to them. The grand jurors did not hear or receive the defence’s evidence.13 Ideally, the victim, all the prosecution witnesses and the examining JP would appear before the grand jurors, but many times they failed to do so.14 Their absence at that stage, however, was not fatal to the case.15 The examinations of the magistrates could be read by somebody else, and the testimony of other witnesses, not necessarily the victim, was sufficient.

The grand jurors were of an inferior social status to the justices. However, they could effectively reject the case that was prepared and submitted by the JP. This division of labour was an inherent source of tension.16 The grand jurors were regarded as the voice or conscience of the county, ‘the very eyes and spies of the county’,17 a position that became an arena for political power struggles.18 Although the ideal for grand jurors was of literate gentlemen, freeholders with sufficient income, the reality was that the jurors were of a lower social standing and were often illiterate.19 Assize judges sometimes tried to improve both the grand and petty juries’ quality by drafting constables and even clerks to serve on the panels.20 The jurors who served at the assizes usually enjoyed a somewhat better status than those who served at the Quarter Sessions and belonged to the lower ranks of the gentry.21

The grand jurors sometimes overstepped their authority and attempted to determine guilt or to dismiss a case out of mercy despite its sufficiency, and, as they were part of the community, they were susceptible to social pressures and considerations.22 Sometimes the assize judges were dissatisfied with grand jurors’ excessive leniency.23 However, it seems that despite the tensions and pressures, they ‘seem to have worked from a set of consistent, if informal, evidentiary guidelines that encompassed both the form and substance of accusations. If judged by their decisions, grand jurymen were neither capricious, timid, nor overly concerned with the opinions of the social or legal establishment’.24 The grand jurors’ evaluation was not rigid or technical. To achieve the desired result, they were sometimes willing to ignore technicalities or exploit flaws in the bill of indictment.25 The criteria for their assessment resembled those used earlier by the magistrate.

Richard Bernard, in A Guide to Grand-Iury Men, offered the grand jurors specific guidance regarding witchcraft. His goal was to help the grand jurors differentiate between real and ‘counterfeit’ witchcraft and to warn them against believing anyone who claimed to be bewitched.26 Bernard advised the grand jurors that they should be most careful before returning an answer and that it was better to refrain from indicting when in doubt:

vnlesse the Witchcraft be very cleere, they may bee much mistaken; and better it were, till the truth appeare, to write an Ignuramus, than vpon oath to set down Billa vera, and so thrust an intricate case vpon a Iury of simple men, who proceed too often vpon ralations of neere presumptions, and these sometimes very weake ones too, to take away mens liues.27

The presumptions that could be adequate to instigate an examination, according to Bernard, were not strong enough evidence to support a finding of guilty in this capital crime.

A finding of a prima facie case resulted in indictment, which needed to contain a commencement, a statement and a conclusion. The commencement was a title that denoted the type of commission and geographical area and defined the court’s jurisdiction and venue. The grand jurors came from the area where the crime was committed, even if the trial was conducted at another locale. The statement set forth the details concerning the crime – facts, circumstances and intent that established the offence. Eventually, the indictment needed to conclude whether the offence was a common-law breach of peace or under a statute.28 Everything needed to be contended in the indictment, and even a slight omission could be fatal to the case.29 In indictments for witchcraft, the use of force and the names of the witch’s imps or familiars were only occasionally mentioned.30 The indictment against Margery Barnes in 1583 claimed, among other things, that she held three imps in her possession, whom she called ‘sperytte’, ‘le gray Catt’ and ‘le dundogge’.31

Initially the indictments were written on parchment in Latin,32 which was not understood by most witchcraft suspects. Only in 1730 was it enacted that indictments should be in English.33 Several separate bills against one suspect could be submitted, or one indictment could contain several charges. It was also common to charge several defendants in one indictment.

If the grand jury did not find the case sufficient, the bill was to be destroyed.34 Only a few ignoramus bills survived, possibly because those bills referred to additional defendants, against whom a billa vera was found. On return of a billa vera, which term needed to be written on the back side of the bill to endorse the indictment, the suspect became an accused and had to answer the charges.35

The Arraignment and Plea

On the assize day, the court room was full of people and bustling with activity.36 At times, the noise was so loud that the accused was unable to hear the prosecution evidence or the judge.37 In addition to the official participants, the hearings drew a large crowd of parties (civil and criminal), witnesses and spectators. The judicial spectacle had a primary educational value for the public.38

All the prisoners were taken to court chained to each other. Following the indictment, they were called, one at a time, to the bar to plead to the charge. The grand jury proceedings were often carried out without the defendant’s knowledge. The defendant had as yet no right to receive a copy of the indictment, so the announcement of the charges was, not uncommonly, her first opportunity to hear the full charges.39 In witch trials, examination was quite frequent, and therefore the accused could get an impression of the nature of the allegations. However, the grand jury sifted the evidence and decided what charges merited indictment, so the actual indictment could be different from the allegations the accused faced at the JP’s house.

The possible pleas in a criminal trial were guilty, not guilty, autrefois acquit (already acquitted) and autrefois convict (already convicted).40 A plea of guilty was an admission of everything in the indictment. On a pleading of not guilty, the indictment was denied, and the case against the accused needed to be proved by evidence.

An accused who pleaded not guilty was asked, ‘Culprit, how will you be tried?’ to which the prisoner had to reply, ‘By God and my country’.41 ‘By my country’ signified consent to a jury trial. ‘By God’ is reminiscent of the ordeals, which functioned as the medium of divine adjudication. An accused who omitted either phrase was considered to stand mute. If the jury found the incomplete reply to be ‘mute by the visitation of God’,42 the trial continued. But if it found him to be ‘mute of malice’, the plea equalled a refusal of a jury trial.43 Lack of consent resulted in the infliction of the peine fort et dure (pressing), which persisted until its abolishment in 1772.44

There is some evidence of a limited plea-bargaining practice, which appeared around 1575, by which the prisoner who maintained his innocence agreed to plead guilty to a lesser or clergiable offence to obtain a reduced penalty.45

The Trial by Jury

As the trial proceeded, a different panel, the petty jury, determined whether the accused was guilty of the crime. Jury empanelling began after the arraignment. By the mid-sixteenth century, the jury trial as we know it today was well established.46 In the past, juries had fulfilled the role of witnesses, but by this time, jurors were no longer required to be self-informed, a consequence of the Marian laws and the social and demographical transformations to be discussed later.47

No jury was selected if the defendant pleaded guilty.48 If the defendant pleaded not guilty and replied that he wanted to be tried ‘by God and my country’, jury empanelling began. The defendant had the right of preemptory challenges (limited to 20 by statute since 1533),49 which were rarely exhausted,50 as ‘for the most part the prisoner can say nothing against them, for they are chosen but for that day, and are unknowen to him’.51 The jurors were called and sworn in individually, and if the defendant raised no objection, the next prospective juror was called until the panel was full.52

Empanelling presented a practical challenge, as the shortage of jurors became a persistent situation. As the royal court system expanded, more trials were conducted at the assizes, and the need for jurors increased. Many potential jurors, however, recoiled from the service whenever possible. Service on a petty jury was much less prestigious than on a grand jury, and the petty jurors were generally of a lower social status.53 The official qualifying condition was property worth 40s.54 The rarely achieved ideal of petty jurors was of:

substantial yeomen, that dwell about the place, or at the least in the hundred, or neere where the felonie is supposed to be committed, men acquainted with daily labour and travaile, and not with such idle persons as be readie to doe such mischiefes.55

The ‘substantial yeomen’ were less likely to be acquainted or familiar with the social circle of the defendants and were also not enthusiastic about serving on the panel alongside the more common men who were willing to serve as jurors.

Jurors were exposed to pressures exerted by the parties, the grand jurors (who endorsed a bill of indictment and therefore disapproved of acquittals) and the judges. The latter could fine jurors right away and censure them before the Star Chamber. At the Star Chamber the jurors were examined on the reasons for their decisions and were susceptible to punishment.56

Only in 1670, in the Bushell case, was it ruled that the jurors had a right to return a verdict according to their consciences without being subjected to any subsequent punishments.57 Bushell was the foreman of the jury in a tumultuous assembly case in which the jury found both defendants not guilty. The judges exhibited little appreciation for that result, fined the jurors and sentenced them to be imprisoned until they paid:

The Recorder had expressed his admiration for the Spanish Inquisition, and the Mayor had said he would cut Bushell’s (the foreman’s) throat as soon as he could. The Jury were fined forty marks apiece for their verdict, and sentenced to be imprisoned till they paid it.58

After the jurors in Bushell had been fined and sent to prison, they managed to obtain a writ of habeas corpus. Ten of the twelve judges who heard their case concurred in a decision that set forth a major constitutional principle – the jury’s absolute right to decide the case without being exposed to any questioning or penal consequences.

The modern rule excluding jurors familiar with the parties or the facts did not exist, but the criterion for jury selection was no longer a personal acquaintance with the facts. The jurors were selected from the shire and were not necessarily from the region where the crime was committed. Dislocation was common in early modern times, and the constant demographical changes influenced the panel structure. A local juror might be a newcomer to the area and therefore as unfamiliar with the defendant or the case as a stranger.59 The Marian statutes, which shifted the investigatory role to the magistrates, further catalyzed and institutionalized the separation of juries from their previous power base, the regulation of information.60 No longer self-informant, the jurors were presented with evidence collected by someone else. Because the royal judges who came from outside the shire received the JPs’ investigations and were no longer dependent on the jurors for information, their knowledge of the facts sometimes led them to different conclusions than those of the jurors.

The conditions under which the juries conducted their deliberations were not at all attractive. Although the cases were usually decided ‘in minutes rather than in hours’,61 jurors were sequestered in prison-like conditions until reaching their decisions:

And there is a bailife to waite upon them and to see that no man doe speake with them, and that they haue neither bread, drinke, meate, ne fire brought to them, but there to remaine in a chamber together till they agree.62

While the hungry jurors were deliberating, the judges and justices went out for dinner and afterwards progressed with civil cases to pass the time until the jurors came back.63 If the jurors reached no verdict by the end of the session, they could be carried in a cart after the itinerant judges, who continued their journey to the next county.64

Juries served in several cases during the sessions and had to decide them all together on the basis of what they could remember after completion of all the sessions.65 Sometimes the panel had to implore the judge not to encumber them with additional cases.66 In practice, juries were allocated more than two or three cases and sometimes determined the verdict for up to 18 prisoners.67

Jurors, as a matter of course, were not paid or compensated for their services. As soon as their task was over, they were ‘dismissed to goe whither they will, and haue no manner commoditie & profite of their labour and verdict, but onely do seruice to the Prince and commonwealth’.68

The result of all those inconveniences and disadvantages was that many tried their best to avoid jury duty. Even constables and grand jurors who were present at court could be drafted to the petty jury.69 Whoever chanced to be in court as a witness, a spectator or a party risked being snatched up to jury service,70 a concern that led some victims to refrain from prosecution.71

Proving the Crime

The trial began once the empanelling was completed. Under common law the accused had a right to be unshackled during the trial,72 which was to be conducted in the presence of the accused, who could be removed from the courtroom only in rare circumstances.73 The trial was no longer a conflict between private parties, but rather between the crown, which was the prosecuting party, and the accused. However, despite its being a party to the criminal proceedings, only rarely was the crown represented by counsel,74 and the court, with the assistance of the clerk, managed the proceedings.75 The JP appeared not as a prosecutor, but ‘to give small assist to the assize judge, who coordinated the prosecution at trial, by providing him with a convenient summary of the prosecution case’.76 The assize judge examined the witnesses and the defendant and thus controlled the flow of evidence to the jury.77

The clerk called for the witnesses for the prosecution to come forth by saying: ‘If any can giue euidence, or can say any thing against the prisoner, let him come nowe, for he standeth upon his deliuerance.’78 The absence of the prosecution witnesses was a ground for an acquittal, even in cases where the defendant had previously confessed at the examination. In such cases, those witnesses, who had earlier been bound to appear by the JP, would be required to pay their recognizance.79

Because of the probative difficulties in witchcraft cases, confessions were highly desirable. Torture being illegal, however, confessions were not as easy to obtain as on the Continent. Smith expressed a fourfold criticism of the use of torture. First, the value of confessions that were forcibly obtained was doubtful, as the prisoner was likely to admit anything: ‘He will confesse rather to haue done any thing, yea, to haue killed his own father.’ Second, he condemned the cruelty. Third, the public sentiment might turn against a ruler who forced his subjects to endure such cruelty. And last, there was a practical consideration – torture was futile. As the deposition had no independent probative value, the prisoner could recant in court.80

The voluntary confession, according to Michael Dalton in his popular manual The Country Justice, ‘exceeded all other evidence’.81 But the English became more and more suspicious regarding the voluntariness of confessions. Later, in the eighteenth century, out-of-court confessions could be admitted into evidence, but their probative value, or ‘weight’, depended on the circumstances of the admission of guilt.

Although the results of the pre-trial examination would not independently constitute proof,82 the examination was used as a road map of the presentation of the case and the content of the prosecution testimonies by the JP.83 The depositions were not kept on record once the trial was over.84 However, the reading of the examination and the appearance of the JP did not replace the need to prove the charges by the actual testimony of the witnesses.85 It might give an impression of the general picture and save time (the witnesses could simply approve their statements to the JP), but without actual testimony, no fact was proven. Afterwards all the prosecution witnesses, beginning with the victim and followed by the constable and all those who participated at the apprehension, were called and sworn in one after the other. The alleged victim (‘prosecutor’) testified first. The testimony was complemented by the ‘altercation’, a direct confrontation between the accuser and the defendant.86 It was a verbal battle between the accused and his accuser and did not take the form of direct and cross-examinations, but was rather a heated exchange of words.87 In the middle of the sixteenth century the right to be represented by an attorney did not yet exist, and the accused had to struggle with his accuser directly.88 The accused had no right to receive the indictment or the witnesses’ depositions in advance, so there was hardly any chance to prepare. The spontaneity enforced by the deprivation of prior information and the emotional toll contributed to an intense encounter. The anxiety-provoking circumstances could confuse a defendant who was even an experienced barrister89 and were clearly beyond the coping ability of most defendants, who were poor and uneducated.

The rest of the prosecution witnesses testified after the victim. They included the constable, lay witnesses and, many times in witchcraft cases, expert witnesses. Some cases revolved around the battle between the experts.90 A common presumption was that illnesses unknown to medical practitioners must originate from witchcraft.91 Physicians were often called to testify as expert witnesses to prove that, according to existing medical knowledge, the illness could not be attributed to natural causes. It was therefore presumed that witchcraft was behind the illness.

The inferior position of the defendant was manifested in many procedural disadvantages, which hindered the ability to prepare a defence. In felony cases, the defendant was normally imprisoned pending the proceeding, and the indictment and depositions were not revealed to the defendant prior to the trial. There was no right to representation by counsel during the trial or even to assistance by one to prepare. As Baker remarked: ‘If counsel were allowed it was pointed out with some alarm in 1602, every prisoner would want it.’92 The concern was that counsels would complicate and manipulate the trial with fine words and legal trickery.93 Cockburn discovered that, according to all the available court records of the Home Circuit in the period of Elizabeth I and James I, attorneys were allowed in only three cases.94 Representation was allowed in misdemeanour cases but forbidden in felony cases. An act in 1696 permitted the assistance of counsel for the pre-trial and trial in treason cases, yet defendants of other serious crimes remained unrepresented.95 After the 1730s, representation by counsel was commonly permitted as a matter of grace,96 and in 1836 it became a legal right.97 Representation was bolstered by deeming the client’s disclosures to the attorney to be privileged, about which a defence counsel could not be called to testify – what Gilbert calls ‘a Sort of Confidence inviolable’.98

Even after the 1730s most defendants were still unrepresented.99 Only the wealthier defendants were able to afford counsel.100 The others had to rely on a court’s occasional initiative to assign a volunteering counsel who happened to be in court, or try to represent themselves.101 Yet, despite these deficiencies, the involvement of defence attorneys and the objections they raised generated an elaborate system of evidentiary rules and contributed to shifting the burden of proof to the prosecutor.102

It was difficult to oppose the prosecution witnesses. Other than in the altercation with the alleged victim, the defendant had no right to confront the testimonies. Cross-examination did not yet exist. All prosecution witnesses testified under oath.103 In sharp contrast, defendants could not testify under oath on their own until the middle of the nineteenth century.104 Testifying under oath was considered advantageous, as the customary view was that if a witness testified under oath, he or she must be believed unless directly contradicted.105

Another difficulty for the accused was the barring of defence witnesses.106 Although Queen Mary I advocated the allowance of defence witnesses, her instruction was often disregarded.107 The first defence witnesses appeared at the end of the sixteenth century.108 During the interregnum (1651–59), prisoners could not only cross-examine the prosecution witnesses, but also call their own witnesses.109 However, the proposal of the Hale Commission to allow defence witnesses to testify under oath was not effectuated.110 By the mid-seventeenth century, defence witnesses were the normal practice,111 and, generally, it may be said that the trial procedure from the second half of the seventeenth century had begun to resemble the modern one.112 Still, when the practice of calling defence witnesses began to be tolerated, they could not testify under oath.113

The criminal proceeding was no longer between private parties. Prosecution was in the name of the king, and the prosecution witnesses testified for the crown. Courts were reluctant to permit contradition of those witnesses, as it might conceptually injure the interests of the king.114

This approach was a remnant of the compurgation method, the wager of oaths. By the oath, the witnesses testified ‘under the Solemnities and Obligation of Religion, and the Dangers and Penalties of Perjury’.115 False testimony was not only perjury, but also heresy, subject to divine sanctions.116 Conflicting oaths were permitted in civil cases, and even in misdemeanours, the accused was allowed to call defence witnesses to testify under oath. However, such a right was denied to defendants in felony cases.117 Contradicting oaths in a capital case might suggest the possibility of erroneous execution. By permitting only prosecution witnesses to testify under oath, ‘the system assured that a jury’s verdict of guilt would seem to bear a divine imprimatur’.118

A series of scandalous treason trials during the seventeenth century left a bitter impression of injustice and led to an improvement of defendants’ procedural rights. The Treason Trials Act of 1696 mandated that in treason cases the accused should have a copy of the indictment before trial, be allowed representation by counsel and to call witnesses under oath.119 An act of 1702 gave traitors and other felons the right to call sworn witnesses.120

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