The Spectral Evidence against Brett Kavanaugh


Their “gut reaction” was that her allegations “rang true”

Imagine being charged with a crime you didn’t commit, a crime punishable by death.  The only evidence against you is that offered by your accuser, who testifies that he saw you commit the crime.  I don’t mean he claims to have seen it in the usual sense, as in with his eyes, but in a preternatural sense, i.e., in a vision.  You’re tempted to laugh the matter off.  Surely such evidence is inadmissible in a court of law?  But to your dismay, the court takes this “evidence” very seriously.  Making matters worse, every time you deny your guilt, the accuser claims a recurrence of the vision right then and there in the courtroom.  Thus, every denial only multiplies the “evidence” against you.  When it’s all is said and done, the jury renders its verdict: guilty as charged...and off to the gallows you go.

Nineteen people were tried, convicted, and hanged for witchcraft in Salem, Massachusetts on this kind of evidence.[1]  The trials began in February 1692 when a group of girls and young women (aged 9-20) began to exhibit strange behavior, including fits of screaming and convulsions.  They threw things around the room, contorted themselves into odd positions, rolled on the floor, hid under furniture, made strange noises, and claimed to fall into trances. 

The first of these “afflicted girls” were aged 9 and 11, a daughter and a niece of Reverend Samuel Parris.  A doctor was called for to examine them.  He could find no physical cause for their symptoms and concluded they must be under some devilry.  After extensive questioning, the girls identified a woman named Tituba, a Parris family slave from Barbados, as the one who had bewitched them. 

Soon the numbers of the “afflicted” and the “accused” grew.  Most of the accused were women (as were most of the accusers); and most of the convicted were convicted on evidence provided by specters.  The accusers claimed the spirits (specters) of the accused appeared to them in a vision to terrify and torment them, often pinching and pricking them and driving them mad.[2]  When the accused denied their guilt before the judge and jury, the accusers often claimed new visions on the spot, and went into convulsions or exhibited other signs of bewitchment, to the gasps and horror of onlookers.[3]  By fall, more than 200 people had been arrested for suspicion of practicing witchcraft.  Governor Phips began to doubt the evidence.  Too many good and decent people were being accused. 

The Devil did take upon him the shape of Innocent persons and some were accused of whose innocency I was well assured and many considerable persons of unblamable life and conversation were cried out upon as witches and wizards.[4]

In October, he dissolved the court and the remaining prisoners were released.  In the years following, several prominent participants in the trials publicly lamented the roles they played, including several accusers and judges.[5]  Eventually, the condemned were exonerated.[6]  

I was reminded of this bizarre episode in our nation’s history as I read Mollie Hemingway’s recent column detailing Leland Keyser’s denial of Christine Blasey Ford’s allegations against Justice Brett Kavanaugh.  Blasey Ford, you’ll remember, accused Kavanaugh of attempting to rape her at a party they attended while in high school.  She claimed there were three other people at the party.  All of them deny it, including Keyser, her “life-long friend,” a point reiterated in a new book by two New York Times reporters, Robin Pogebrin and Kate Kelly.

We spoke multiple times to Keyser, who also said that she didn’t recall that get-together or any others like it.  In fact, she challenged Ford’s accuracy.  “I don’t have any confidence in the story.”

Nevertheless, these intrepid reporters believe Blasey Ford’s allegations anyway.   Their “gut reaction” was that they “rang true.”  Got that?  Despite the lack of corroborating evidence; despite the fact that the accuser's life-long friend and key witness has no confidence in her story, Pogebrin and Kelly have confidence in it because their “gut” tells them its true.  Is this the new standard of evidence, an unverifiable subjective gut reaction?  Is “gut evidence” the new “spectral evidence”?  Thankfully, this is not yet the case in courts of law, but it seems to be so in the court of public opinion, and clearly its the case in the offices of the New York Times. 
......

For more on the Salem Witch Trials, see History of Massachusetts Blog:  History of the Salem Witch Trials and Carol F. Karlsen, The Devil in the Shape of a Woman:  Witchcraft in Colonial New England.  For an excellent account of the Kavanaugh hearings, see Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court by Mollie Hemingway and Carrie Severino.



[1] Fourteen women and five men.  Four more died in prison, awaiting trial.  One man was pressed to death for refusing to enter a plea.  Interestingly, ten escaped from prison, including Capt. John Alden, Jr., son of the Mayflower Pilgrim, John Alden, who had been accused
[2] In a letter written to the Earl of Nottingham, Governor Phips described some of the proceedings, “The Court still proceeding in the same method of trying them, which was by the evidence of the afflicted persons who when they were brought into the Court as soon as the suspected witches looked upon them instantly fell to the ground in strange agonies and grevious torments, but when touched by them upon the arm or some other part of their flesh were immediately revived and came to themselves, upon [which] they made oath that the Prisioner at the Bar did afflict them and that they saw their shape or spectre come from their bodies which put them into such pains and torments.” (History of Massachusetts Blog, What is Spectral Evidence)
[3] The courts accepted three kinds of evidence: confession, testimony of two eyewitnesses to acts of witchcraft, or spectral evidence.
[4] History of Massachusetts Blog, What is Spectral Evidence
[6] In 1711, the colony passed a bill clearing the names of many who were condemned and paid restitution to their families.  In 1957, the state of Massachusetts cleared the names of the remaining victims. 

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