Early American Interrogation Law
Reported criminal cases were rare during the colonial period. Case reports in general were scarce and criminal cases even scarcer. But the Salem witch trials provide an example of how the colonists were, at least by the late seventeenth century, drawing back from the use of torture to obtain confessions. The 1641 Massachusetts Body of Liberties provided, “No man shall be forced by Torture to confesse any Crime against himselfe,” though it permitted torture when it was “very apparent” that one convicted of a capital crime had “other conspiratours, or confederates.”1 “Barbarous and inhumane” torture, however, could not be used in any event. The threat posed by confederates in a capital crime who might otherwise not be identified was thought sufficient to warrant “humane” torture, whatever that meant.
The Salem witch hunt fits neatly with our theme that harsh interrogation methods are rooted in perceptions of threat to the established order from internal and external threats. The Massachusetts colony of the period faced many threats to its survival but not internal ones. The colony was a homogenous society that imposed order in large part by a belief in a vengeful God who “directly caused or allowed everything that happened in daily life.”2 Witches would be about the greatest threat that Massachusetts Puritans could imagine. Nor would Puritans think that witches had autonomy worth respecting. Witches were, after all, doing the work of the devil.
The year 1641 was at the end of what Langbein calls the Torture Century in England,3 and it is not surprising that torture was both permitted and tightly regulated in the Body of Liberties. But the witch trials did not occur until 1692 when torture as a means to obtain evidence had apparently disappeared in England and was rapidly declining on the Continent. Thus, its use in the Salem witch trials should have proved controversial and of limited frequency. Both turn out to be true. Despite the popular conception that confessions were routinely tortured from witches, the evidence suggests that most confessed to obtain leniency rather than as a response to torture.