Wonders of the Invisible World Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials

Abstract

The primary aims of this Article are to deconstruct the evidence from the Salem witchcraft trials and to determine whether those prosecutions relied upon syndrome and profile evidence, and whether such, evidence played a substantial role in the convictions. The secondary aim is to determine whether modern cases employ evidentiary methods sufficiently similar to the Salem cases such that we should reconsider prosecutorial syndrome and profile evidence.

This Article concludes that prosecutorial syndrome evidence and, to a lesser degree, prosecutorial profile evidence, were relied upon in the Salem cases and were important to the convictions. Moreover, in modem cases, which rely on syndromes for purposes of conviction and profiles for purposes of reasonable suspicion and probable cause, the essential cognitive error in the Salem trials is still present in the use of syndrome and profile evidence: the belief that criminal behavior can be determined with sufficient certainty by considering constellations of behaviors in either victims or defendants. This Article argues that experience-based conclusions about the relationship between observed behaviors and crime, when not subjected to a more searching or science-based scrutiny, are both incomplete and laced with the potential for error.

As developed more fully in Part VI, infra, courts have shown a great willingness to accept prosecutorial profile and syndrome evidence, the validity of which is premised primarily on the experience of law enforcement officers and treating therapists. Courts have not been forceful in requiring proof of the underlying belief structures that animate profile and syndrome evidence, namely that crime is meaningfully related to defendant behavior and victim behavior. Part VI submits that current appreciation for scientific method, along with the Supreme Court's mandate that trial courts engage in rigorous "gatekeeping" of expert evidence" and amended Federal Rule of Evidence 702, collectively support greater proof of reliability and validity of prosecutorial syndrome and profile evidence prior to its admissibility at trial.

Although the comparison between the witchcraft trials of 1692 and modem trials may be considered inflammatory, it is important to remember that the experts relied upon in Salem were employing precepts that had been in use for approximately a century." Moreover, although witchcraft may not have been the cause, there were numerous examples of people and animals in Salem becoming sick and dying. Thus, some of the harm was very real, even if the cause misperceived. Finally, it is the respective methodology under comparison, not the actual evidence. The law does not always recognize its own errors while they are occurring, but often discovers them only in the refracted light of history.

Keywords: salem witch trials, salem witchcraft trials, prosecutorial syndrome, profile evidence, increase mather, puritians, court of oyer and terminer, cotton mather, rape trauma syndrome, child sexual abuse syndrome, prosecutorial syndrome evidence, drug courier profile, racial profiling, bridget bishop

JEL Classification: K10, K14, K41