Time Travel to Old Salem


Dr. Who sets the controls of the time machine for Salem, Massachusetts, 1686, and arrives in a strange, primitive society prone to beliefs and superstitions about witches, goblins, warlocks, and the Devil.

Shortly before Dr. Who's arrival, two women and a man who reside in the settlement are accused by leading elders of practicing witchcraft. According to local practice, they are placed in the stockade until they can be tried in the Salem manner. In Salem at that time, those accused of witchcraft were given two options. One option was to submit to a trial, which consisted of tying the accused to a board and dunking the person in a "pure'' pond while the deacon recited the Lord's Prayer three times. If the accused survived the dunking, the purity of the accused's soul was vindicated and he or she was set free; if the accused did not survive, guilt and sentence were simultaneously announced. No one recalled any acquittals as a result of this process. Alternatively, the accused could accept banishment from the colony, which meant exile to the western wilderness. Once banished, no one had ever been seen again.

Impressed by Dr. Who's mechanized mode of transportation, the Salem elders ask Dr. Who to preside over the trial of the three accuseds. Dr. Who agrees on the condition that trial be conducted by what we now think of as modern trial procedures. The elders agree but insist that the jurors be selected from among their ranks. At trial, the deacon serving as prosecutor seeks to present evidence that prior to Dr. Who's arrival the three accuseds refused to submit to trial by dunking.

Should this proof be admitted? Is it logically relevant? Why should anything be kept from the trier of fact?


Relevance depends not only on what one is trying to prove but also on the starting assumptions one makes about the nature of the world. But whose starting assumptions? Do we see the problem of "relevance'' from the point of view of the victim, the defendant, the jury, the supposedly much more "knowing'' judge, or any particular political or social group?

The evidence, though based on superstition, is relevant to the defendants' guilt if the defendants (1) believed in dunking as a valid test and (2) believed that they were witches or warlocks (whatever that meant in old Salem). But the evidence would be irrelevant if the defendants had no faith in the fairness and accuracy of the dunking procedure, and instead feared it would kill them whether they were guilty or not. Dr. Who might recognize the relevance of the evidence yet nevertheless want to exclude it because Dr. Who understands the superstition and does not want a conviction (apparently) based upon it. The jurors, believing the superstition, may assume that the defendants also believed it and avoided the dunking because of their guilt. Or the jurors may accept the proposition that the defendants put no faith in the dunking test, and consider this a form of heresy itself indicative of the defendants' guilt.

If, after recognizing the different points of view, and seeing how they lead to different concepts of relevance, we conclude that we can't figure out by any abstract logic which concept of relevance is the "true'' one for the system, then we may be led to conclude that the operative concept of relevance in the system is a reflection of the underlying social, political, and economic interests the system is serving. If this is true, it poses a profound problem, not subject to simple answer, that forces us to think about what the objectives of the legal system are, who is meant to be affected by its judgments, and what are the means by which the effects are produced. At bottom, we must ask what advantages, if any, the common law system of trial has over the trial by ordeal. We believe, from our present vantage point, that the current adversary process more accurately determines truth. But how culture-bound is this belief? Reconsider the judgment of Solomon in light of these questions.

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