LESSONS LEARNED AND LOST FROM THE SALEM VILLAGE WITCH TRIALS:

THE ENDURING DANGERS OF COERCED CONFESSIONS

KYLAH CLAY

SUFFOLK UNIVERSITY LAW SCHOOL

INTRODUCTION 1

I. BACKGROUND OF THE SALEM WITCH TRIALS 2

A. Events Leading to the Mass Hysteria and Witch Trials 2

B. Circumstances of Confessions in the Trials 5

C. Analysis of Selected Confessions 10

II. THE ROLE OF COERCED CONFESSIONS IN MODERN AMERICAN CRIMINAL 15

PROCEEDINGS

A. Legal Changes and Safeguards for Coerced Confessions 16

B. Modern Injustices as a Result of Coercion 20

III. LESSONS LOST FROM THE INFAMOUS WITCHCRAFT TRIALS OF 1692 29

CONCLUSION 31
 INTRODUCTION

“Doubtless the Thoughts of many will receive a great Scandal against New-England, From the

Number of Persons that have been Accused, or Suspected, of Witchcraft, in this Country …”1

Centuries after Rev. Cotton Maher recounted and defended the infamous Salem Village

Witch Trials2 that led to the execution of nineteen accused witches, thirty convictions, and well

over one hundred accused, the cautionary story of coerced confessions remains alive and well in

modern America. Following the tragedy of the trials, outrage among priests, magistrates, and

politicians alike illustrated the shocking evidentiary practices that led to the loss of many

innocent lives. While the primary criticism fixated on the use of spectral evidence, a growing

body of individuals also questioned the use of certain “witch’s tests,” character evidence,

hearsay, and, eventually, confessions. In the three hundred years since the infamous trials

concluded, the American legal system has learned a great deal of evidentiary and prosecutorial

lessons, particularly in the area of coerced confessions. Yet, despite such progress, there remain

significant flaws in the criminal justice system’s use of coerced confessions that allow the same

mistakes of Salem 1692-93 to live on through innocent defendants incarcerated today. This paper

seeks to: (1) illustrate the use of coerced and/or incentivized confessions3 in the Salem Witch

Trials; (2) demonstrate the safeguards slowly put in place to protect the defendant’s right against

self-incrimination and wrongful confessions; and (3) highlight where the modern American legal

system continues to fall short, despite the lessons the Salem Witch Trials has to offer. History

demonstrates that coerced confessions wreak havoc on the criminal justice system; yet in the

1
Reverend Cotton Maher, Wonders of the Invisible World, (1693) (Writing in defense of the Salem Witch Trials)
2
It is important to note that the accusations and hysteria were not strictly limited to Salem Village, but rather spread
throughout the New England colonies. With this in mind, I will refer to the New England Witch Trials of 1692 as
the Salem Witch Trials but acknowledge how the accusations travelled far beyond Salem.
3
Notably, whether the confessions of the Salem Witch Trials were true or false does not concern this paper; rather,
the focus is on the techniques used to coerce an individual to confess to a crime they may not otherwise confess.
This is an important distinction: Coerced confessions are not synonymous with false confessions.

1
three centuries following the Salem Witch Trials, coercive tactics aimed at eliciting confessions

remain commonplace in criminal matters.

BACKGROUND OF THE SALEM WITCH TRIALS

A. Events Leading to the Mass Hysteria and Witchcraft Trials

The trials began after a cumulation of various factors, none of which can be explicitly

attributed to the mass hysteria that would soon surface in 1692. Prior to the first set of

accusations, Salem (along with many other settlements) faced unstable legal proceedings. Up

until the 1660s, most disputes were settled simply by the local Congregational churches, yet as

the population grew and religious views diversified, town meetings became an essential method

of dispute resolution.4 This was largely unsuccessful, however, as the resolution of these local

disputes depended entirely on “a voluntary arbitration process and a communal vote, both of

which presumed that the disputants would display a high measure of ‘neighborliness.’”5

Unfortunately, these disputes concerned many issues of fortune which detracted from the

“neighborly” attitudes encouraged by the town. In 1685, King James II of England revoked the

original charter of Massachusetts and sought to install British loyalists to oversee the colonies’

judicial matters through the appointment of Sir Edmund Ardos and others. As a result, town

meetings were no longer in effect and the British implemented unsuccessful, highly avoided

courts of common law and equity.6 Some historians speculate that the lack of a consistent and

trusted judicial system and the loss of township arbitrations, resulted in some settlers “turn[ing]

4
Kermit L. Hall & Peter Karsten, The Magic Mirror: Law in American History, 35, Second Edition, 2009
5
Id.
6
Id.

2
to pre-Christian magic, the supernatural, or prayers to God for assistance.”7 Just five years later,

however, colonists arranged a small coup d’état of sorts to overthrow the British appointed

Governor, Sir Edmund Andros, along with the judicial system the British had oversaw. By early

1962, just as the witchcraft rumors began to swirl around Salem, the Commonwealth of

Massachusetts and Village of Salem had yet to replace the previous judicial system, resulting in

the lack of a legal system in the community.8

In May 1692, Sir William Phips was provided a legal charter and appointment to govern

Massachusetts. By this time, a growing sense of frustration and anger ravaged villagers unable to

settle their grievances in court. At that same time, rumors of witchcraft gained traction through a

series of untriable accusations; thus, a court was necessary to commence criminal prosecution.9

Thus, Sir Phips created the Court of Oyer and Terminer10 to address the growing concerns of

illegal witchcraft.11 Sir Phips appointed members of his advisory committee and Lieutenant

Governor William Stoughton to oversee the Court of Oyer and Terminer.12

While the clamor for legal remedies remained front and center, an array of other

conditions loomed in the background which eventually combined to further intensify the witch

trials. First was the violence and war consistently taking place between the colonists, French

settlers, and Native Americans. Prior to the mass accusations, two major conflicts between the

colonists and Native settlers resulted in mass death, injury, and trauma. In January 1692, just

7
Kermit L. Hall & Peter Karsten, The Magic Mirror: Law in American History, 35, Second Edition, 2009 and
David T. Konig, Law and Society in Puritan Massachusetts Essex Country (1629-1692) (1979), 47
8
Kermit L. Hall & Peter Karsten, The Magic Mirror: Law in American History, 36, Second Edition, 2009
9
Interestingly, many of the defendants were accused by those who had previously been unable to settle legal
disputes (as simple as property and inheritance disputes) against the defendants. Id. at 35-36.
10
This term translates directly from Latin as: “To see and to hear.”
11
It is worth noting that the charter granted to Sir Phips only authorized the establishment of judicial courts by
provincial legislatures. Thus, historians have asserted that the Court of Oyer and Terminer was possibly an
illegitimate creation.
12
Emerson W. Baker, A Storm of Witchcraft: The Salem Trials and the American Experience, 25, (2014)

3
prior to the first round of accusations, renewed fears of Native American warfare (particularly of

the Wabanaki tribe) intensified as nearby Maine came under attack.13 Mercy Lewis, one of the

first accusers, survived a deadly war against the Native Americans prior to relocating to Salem

Village and spoke at great length of her traumatic losses in earlier wars.14 Notably, evidence

against George Burroughs widely revolved around the fact that he had survived several attacks

by Native American tribes completely unharmed.15 The trial records also indicate an emphasis on

a “Black man” and a consistent fixation on a racially-ambiguous slave, Tituba, who would later

serve as the first to confess.16 This would suggest that racial tensions and fear of future war

played a major role in both amplifying the town’s hysteria and influencing how the trials would

unravel.

Additionally, as the witchcraft hysteria manifested, illness had afflicted both the people

of Salem Village and animals as well. Given the medical knowledge at the time, many deaths

and illnesses were left without explanation, leading many to contemplate an unnatural being at

work. For example, the first two girls alleged to be afflicted by witchcraft were promptly

examined by Doctor William Griggs who noted:

“These Children were bitten and pinched by invisible agents; their arms, necks, and backs
turned this way and that way, and returned back again, so as it was impossible for them to
do of themselves, and beyond the power of any Epileptick Fits, or natural Disease to
effect. Sometimes they were taken dumb, their mouths stopped, their throats choaked,
their limbs wracked and tormented so as might move an heart of stone, to sympathize
with them, with bowels of compassion for them.”17

13
Id. at 50-54.
14
Id. at 104.
15
Stacy Schiff, The Witches of Salem, THE NEW YORKER, (August 31, 2015),
https://www.newyorker.com/magazine/2015/09/07/the-witches-of-salem
16
Elaine G. Breslaw, Tituba’s Confession: The Multicultural Dimensions of the 1692 Salem Witch-Hunt, 44
ETHNOHISTORY 535, (1997)
17
Stephen Nissenbaum, The Salem Witchcraft Papers: Verbatim Transcripts of the Legal Documents of the Salem
Witchcraft Outbreak of 1692, (1977)

4
When Dr. Griggs was unable to determine a medical cause nor treat the young girls with any

known cures, he concluded that the only explanation was an unnatural, diabolical, force. This

further fueled the fear of witchcraft among the community.

B. Circumstances of Confessions in the Trials

As these seemingly mysterious circumstances broiled in the town’s cauldron, hundreds of

accusations for witchcraft surfaced. Per the Laws and Liberties of Massachusetts, “If any man or

woman be a witch, (that is hath or consulteth with a familiar spirit,) They shall be put to death.”18

Supporting such execution, the laws relied on several biblical passages, including Exodus 22.20,

Leviticus 20.27, and Deuteronomy 18.10.11.19 Classified as a capital crime, defendants of

witchcraft charges were not allowed counsel for their legal proceedings.20 With the

aforementioned founding of the Court of Oyer, these accusations could finally be heard.

At the time the trials commenced, the Court of Oyer remained heavily influenced by the

English standard of proof for conviction of witchcraft, thus “[t]he only universally agreed-upon

proofs ... were the accused's confession and the testimony of two eyewitnesses.”21 Perhaps rather

obviously, this standard created a heavy reliance on confessions and influenced the prosecution22

and magistrates to elicit confessions through lengthy and difficult cross examinations, physical

18
The Laws and Liberties of Massachusetts, Liberty 94 (1642)
19
In respective order, the relied upon Biblical verses state: “Whoever sacrifices to any god, other than the Lord
alone, shall be devoted to destruction;” “A man also or woman that hath a familiar spirit, or that is a wizard, shall
surely be put to death: they shall stone them with stones: their blood shall be upon them;” and, “Let no one be found
among you who sacrifices their son or daughter in the fire, who practices divination or sorcery, interprets omens,
engages in witchcraft, or casts spells, or who is a medium or spiritist or who consults the dead.”
20
Spinella and Associates. Even a Witch Needs a Lawyer: When Lawyer are Important in the Time of Trump. THE
LEGAL SPIN. https://spinella-law.com/newsletter/The_Legal_Spin_2017_Winter.pdf
21
Robert Filmer, An Advertisement to the Jury-men of England Touching Witches. Together with a Difference
between an English and Hebrew Witch, 12-14, (1653)
22
Magistrates and their assistants would play a similar role as modern prosecutors in questioning the afflicted and
accused throughout proceedings; however, a small team of prosecutors (particularly Thomas Newton and Anthony
Checkley), identified by transcripts of depositions and indictments, were also involved in the process. Anne Powell,
Salem Prosecuted: The Role of Thomas Newton and Anthony Checkley in the Salem Witchcraft Crisis, CORNELL
UNIVERSITY, (2011)

5
abuse and torture, and psychological pressure. Not only was there an evidentiary need for

confessions, but a certain amount of leniency was permitted to those who confessed, especially

to those who confessed and accused another of witchcraft. Notably, all the individuals who

confessed to their accusations were saved from execution.23

Moreover, while those who confessed were more likely to escape the gallows, it is

heavily important to highlight the social and environmental circumstances leading to the

confession themselves. Social expectations of morality and religion were pervasive in Salem

Village and the New England colony. Given the mass hysteria and insuppressible fear of

community members dealing with Satan, there was an immediate and unforgiving presumption

of guilt for those accused. Those who sought to maintain their innocence were thereby

confronted by magistrates during trial, who would remind them that the only way they may be

saved and forgiven by God was to confess their sins. Not only must the guilty confess, but they

must also confess to the full extent of their sins, which would often lead to the accusation of

others. In one trial, a judge reminded an apprehensive defendant that they “cannot expect peace

of conscience without a free confession.”24 Throughout the trials, prosecutors and judges

encouraged confession under the guise of religious necessity. This put the accused in a

particularly difficult bind, because if they denied the allegations their community would likely

remain not only unpersuaded, but also disgraced by the accused’s refusal to confess to God. On

the other hand, if they did confess the accused could potentially please both the judges and their

community for repenting their sins. This social dynamic illustrates how guilt or innocence were

not the true concern of the Court of Oyer; rather it was the “speedy and vigorous prosecution”25

23
Emerson W. Baker, A Storm of Witchcraft: The Salem Trials and the American Experience, 155, (2014)
24
Stacy Schiff, The Witches of Salem, THE NEW YORKER, (August 31, 2015),
https://www.newyorker.com/magazine/2015/09/07/the-witches-of-salem
25
Id.

6
aimed at eliciting confessions and correcting moral behavior in the community. As a result of

these social and moral pressures, the guilt and stress imposed on the accused accumulated into a

powerful element of psychological coercion.

Aside from the social and moral pressure, magistrates employed highly coercive tactics

during interrogations by assuming guilt during questioning and leaving little room for the

defendants’ rebuttals.26 Applying this line of questioning, one of the judge’s asked an early

defendant in the trials, “What evil spirit have you familiarity with?” When the defendant

responded with confusion and denial of any affiliation with such evil spirits, she was berated

until eventually unable to refute the judge’s presumption of guilt. Another defendant, Mary

Toothaker, began her trial examination adamant that she was not a witch, but following

examination and the introduction of evidence that her specter harmed others in their dreams, she

was effectively convinced of her guilt.27 Capitalizing on the stress of trial and unrelated evidence

of Toothaker’s experience with familial loss, the magistrates psychologically coerced Toothaker

into accepting guilt, finding that “She is convinced she is a witch – she saith now.”28 Coercive

tactics and a “guilty but unwilling to confess mentality”29 during questioning would serve as a

fundamental method of obtaining confessions.

Environmental circumstances served to further extract confessions through coercion. In

considering this mass incarceration prior to trial and the examinations accompanied by this, it is

important to note the role this had in coerced confessions. Given the high number of accusations

and delay in legal proceedings, over 150 accused were held in dungeons until their case could be

26
Emerson W. Baker, A Storm of Witchcraft: The Salem Trials and the American Experience, 156, (2014)
27
Id. at 159
28
Id.
29
Id. at 187.

7
tried by the Court of Oyer. The jail environment was severely underkept, dark, and treacherous.30

Moreover, the incarcerated were forced to pay for their meals, though many were poor and

unable to afford the requisite amount for nutrition. It has also been speculated that guards

withheld water with the belief that more confessions could be excreted if the prisoners were

dehydrated.31 Additionally, those held in the dungeon were deprived of sleep and later reported

to sound “crazed [and] distempered” as a result.32 Forcing the accused to await their trials in such

brutal conditions would leave a mark on their physical and emotional state during interrogations

aimed at eliciting confessions.

While imprisoned, the accused were forced to undergo lengthy and invasive bodily

examinations by magistrates and authorities to determine whether the accused had any

incriminating “witch’s marks.”33 During these examinations, the accused were forced to endure

horrifying acts of torture, often with the goal of inducing confessions. This was a key evidentiary

tool, used to show the mark of Satan, but it was never clear what constituted a witch’s mark or a

natural bodily mark. Regardless, the examinees were often “hog[tied by] their feet to their necks

until blood dripped from their eyes and nose.”34 Others were subject to long hours in a pillory

during examination, a wooden frame that leaves one’s arms and head constrained and

outstretched. A frightening part of these probes included the use of pricking blemishes, bumps,

or other skin deformities, with sharp pins. These probes were unlimited and often involved the

30
Robyn Kagan Harrington, The History of the Salem Witch Trials, MEDIUM, (May 31, 2020),
https://medium.com/exploring-history/salem-witch-trials-b16a87ff0d57
31
Id.
32
Emerson W. Baker, A Storm of Witchcraft: The Salem Trials and the American Experience, 156, (2014)
33
See William Perkins, A Discourse on the Damned Art of Witchcraft, (1610) (Stating that “some do add this for a
presumption; if the party suspected be found to have the devil's mark. For it is commonly thought, when the devil
maketh his covenant with them, he always leaveth his mark behind him, whereby he knows them for his own…)
34
Robyn Kagan Harrington, The History of the Salem Witch Trials, MEDIUM, (May 31, 2020),
https://medium.com/exploring-history/salem-witch-trials-b16a87ff0d57

8
close and humiliating inspection of the accused’s genitals and other private parts.35 In some

cases, these examinations were conducted in front of the magistrate and jury.36 Not only were

these examinations a form of abuse and torture, but they would ultimately lead to the assumption

of guilt whether the accuse confessed or not; if a mark was not found it was declared hidden by

Satan, and if a mark was found, which was often, it was almost certainly the mark of a witch.

The physical and psychological impact of awaiting trial in a dark, grimy cell, while

malnourished, prone to torture, and subject to violating bodily examinations, would most

certainly play a role in later confessions as the accused sought any chance to increase their

likelihood of survival and eventual freedom.

The odds were clearly stacked against the accused. While a growing number of accused

waited for trial in dirty dungeons, their surrounding village became increasingly engulfed in a

mass hysteria and paranoia concerning witchcraft and morality. Though the Court of Oyer was to

act “according to the law and customs of England,”37 judges responded to cases with “an

assumption of guilt and an eagerness to convict,”38 throwing away established judicial

procedures, such as recusal in cases concerning judges’ family members, and encouraging the

highly controversial form of spectral evidence in their courtrooms.39 Thus, when defendants

entered the courtroom, without the assistance of counsel and both emotionally and physically

shattered by their experiences in the dungeon, they were quite likely aware that their chances of a

fair trial were inevitably slim.

35
Martha M. Young, The Salem Witch Trials 300 Years Later: How Far Has The American Legal System Come?
How Much Further Does It Need To Go?, 64 TUL. L. REV. 235, 247 (1989)
36
Id.
37
Len Niehoff, Feature, Proof At The Salem Witch Trials, 47 LITIG. 21, (2020)
38
Emerson W. Baker, A Storm of Witchcraft: The Salem Trials and the American Experience, 185, (2014)
39
Emerson W. Baker, A Storm of Witchcraft: The Salem Trials and the American Experience, 27; 185-86, (2014)

9
 C. Analysis of Selected Confessions

The first confession of witchcraft marked confirmation of the community’s mass hysteria

and served as a catalyst for further indictments; it is also a strong example of the power physical

abuse and torture have in eliciting confessions. Tituba is a well-known figure of the Salem Witch

Trials who has risen to the status of a mythical figure; yet, given Tituba’s identity as a slave of

non-European descent, many historical accounts have overlooked her role in the trials or failed to

properly biograph her.40 Despite this, her role in the trials is well documented. Before the trials

formally commenced, members of the Court of Oyer questioned Sarah Good, Sarah Osborne,

and Tituba regarding accusations made against them. While some accounts of the trials indicate

that Tituba had been engaged in witchcraft prior to the accusations, this has been highly refuted.

Nevertheless, when Good, Osborne, and Tituba were accused of witchcraft by Betty and Abigail

Parris, all three women vehemently denied the claims.41 As a slave, however, Tituba was

subjected to brutal physical and psychological pressure at the hands of her slave master (and,

notably, the father of her accusers), Samuel Parris; thus, fear of further punishment would lead to

her sensational confession.42 Tituba’s confession detailed the presence of a satanic specter;

implicated Good, Osborne, and two unidentified individuals from Boston; and combined notions

of witchcraft from Puritan and Native American folklore.43 The details of Tituba’s confession,

taken as truth, deeply frightened the community and provided the Court of Oyer the confirmation

needed to pursue other alleged witches.

40
Bernard Rosenthal, Tituba's Story, 71 THE NEW ENGLAND QUARTERLY 190, (1998)
41
Id.
42
Elaine G. Breslaw, Tituba’s Confession: The Multicultural Dimensions of the 1692 Salem Witch-Hunt, 44
ETHNOHISTORY 535, (1997)
43
Id.

10
 Further confessions would surface as the trials developed, many of which were the result

of pressure and coercion by the authorities and magistrates of Salem Village. Margaret Jacobs, a

teenager at the time, had witnessed her uncle and grandfather suffer the ramifications of a

witchcraft accusation. Her accused relatives fled Salem, her mother went mad, and her siblings

attempted to hide from the town. When Margaret was sent to court for adjudication, she reports

that the magistrates threatened her to confess or face hanging in the dungeon. Like many accused

at the time, she was offered her life in exchange for her sworn confession. In January 1693, after

confessing to witchcraft and accusing two others of the same, Margaret Jacobs eventually

retracted her confession, appealing to the court for forgiveness through the following petition:

“The Lord above knows I knew nothing, in the least measure, how or who afflicted them;
they told me, without doubt I did, or else they would not fall down at me; they told me, if
I would not confess, I should be put down into the dungeon and would be hanged, but if I
would confess I should have my life; the which did so affright me, with my own vile
wicked heart, to save my life; made me make the like confession I did, which confession,
may it please the honoured court, is altogether false and untrue. The very first night after
I had made confession, I was in such horror of conscience that I could not sleep for fear
the devil should carry me away for telling such horrid lies. I was, may it please the
honoured court, sworn to my confession, as I understand since, but then, at that time, was
ignorant of it, not knowing what an oath did mean.”44

Jacobs’ harrowing account displays the outright coercion that lies beneath so many of the

witchcraft confessions. Especially noteworthy is the importance of honesty to the Puritans of

Salem Village45; to lie would be a grave sin in the eyes of God, but the combination of severe

coercion at the hands of authorities, imminent threat of one’s life, and lack of an attorney to

44
Stephen Nissenbaum, The Salem Witchcraft Papers: Verbatim Transcripts of the Legal Documents of the Salem
Witchcraft Outbreak of 1692, (1977)
45
See Martha M. Young, The Salem Witch Trials 300 Years Later: How Far Has The American Legal System
Come? How Much Further Does It Need To Go?, 64 TUL. L. REV. 235, (1989) (“While commentators have thus
argued that "a well-phrased and tearfully delivered confession was clearly the best guarantee against hanging," they
overlooked the spiritual import that the Puritans placed upon lying. Orthodox Puritans would rather die than belie
themselves, so most of the confessions must have been, at least in the minds of the confessors, true.”)

11
explain the legal significance of confessing, Jacobs, and undoubtedly many others, were left with

few options but to confess.

Even many of those who maintained their innocence consistently would eventually

confess to the witchcraft accusations, as they were heavily influenced by the magistrate’s

emphasis on confessing one’s sins not only for criminal purposes but for religious needs as well.

For example, Dorcus Hoar unwaveringly stood by her innocence throughout her trial. Hoar was a

‘perfect candidate’ for a witchcraft accusation given her longstanding history of theft throughout

Beverly, Massachusetts.46 Several witnesses testified against Hoar, many of whom focused on

prior acts of theft and fortune telling, yet in response to a brutal and challenging cross

examination pertaining to a relationship with Satan, Hoar boldly responded to accusations of

witchcraft, exclaiming, “Oh! you are liars, & God will stop the mouth of liars You are not to

speak after this manner in the Court I will speak the Truth as long as I live.”47 Her unwillingness

to confess did not satisfy the court, especially upon testimony from the alleged victims that Hoar,

while on stand, was listening to a “black man whispering in her ear [and] would never

confess.”48 Thus, Doar was scheduled for execution; however, the night before her execution

Doar confessed. In a petition for reprieve to Governor Phips, Reverends John Hale (who testified

against Doar in great length at court) and Nicholas Hoye stated:

“... we hope in mercy to the soule of Dorcas Hoar of Beverly to open her he [torn] out of
distress of conscience, as shee profesceth, to confess her selfe guilty of the heynous crime
of witchcraft for w'ch shee is condemned, & how & when shee was taken in the snare of
the Devill, & that she signed his book with the forefinger of her right hand &c… Allso
she gives account of some other persons that shee hath: known to be guilty of the same

46
Salem Witch Museum, Site of Dorcus Hoar Home, (2021), https://salemwitchmuseum.com/locations/dorcas-hoar-
home-site-of/
47
Stephen Nissenbaum, The Salem Witchcraft Papers: Verbatim Transcripts of the Legal Documents of the Salem
Witchcraft Outbreak of 1692, (1977)
48
Id.

12
 crime. And beeing in grat distress of Conscience earnestly craves a little longer time of
life to realize & perfect her repentance for the salvation of her soule.”49

Especially noteworthy is both the timing of Doar’s confession, and circumstances in which it

was given. As aforementioned, the chances of survival were often greater when one both

confessed to witchcraft and accused others of engaging in the crime. This is a key component of

the petition as well, which exclusively focuses on Hoar’s confession and account of other

witches. While the petition further requests Doar receive an additional month to reflect on her

sins before execution, the trials and executions ended just prior to that extension. Essentially, by

confessing to her alleged crime and pointing her finger at others, Doar’s life was saved. As

aforementioned, confessions were heavily sought by the Court of Oyer and essential for

repentance in Puritan culture. A detailed confession, like one that accuses others of religious and

moral disobedience, was the greatest chance of survival. While Doar may well have been

innocent as she had so vehemently claimed, the pressure to confess in exchange for survival was

a weighty and coercive factor in whether one maintained their innocence or proclaimed guilt.

Had Doar otherwise held onto her claims of innocence, she would have been executed by

hanging on September 22, 1692.50

Perhaps the most devastating confession came from the youngest victim of the trials,

four-year-old daughter of Sarah Good, Dorothy (incorrectly written as “Dorcus” in various court

documents and later historical accounts of the trials).51 Dorothy’s accusations came soon after

her mother’s. In March 1692, Dorothy was accused by three individuals of physically and

mentally tormenting them through her specter; these accusations led to a warrant for her

49
Stephen Nissenbaum, The Salem Witchcraft Papers: Verbatim Transcripts of the Legal Documents of the Salem
Witchcraft Outbreak of 1692, (1977)
50
Id.
51
Margo Burns & Bernard Rosenthal, Examination of the Records of the Salem Witch Trials, 65 THE WILLIAM AND
MARY QUARTERLY, 401 (July 2008)

13
apprehension almost immediately. Upon examination by the Magistrates it was reported that,

“when this Child, did but cast its eye upon the afflicted persons, they were tormented, and they

held her Head, and yet so many as her eye could fix upon were afflicted.”52 Though Dorothy was

never convicted of witchcraft, upon a lengthy examination by the Magistrates in connection to

her mother, Dorothy confessed to owning a pet snake (interpreted at the time as a witch’s

“familiar” rather than a pet) and witnessing her mother work with the Devil.53 Moreover,

Dorothy was subject to lengthy physical examination for a witch’s mark, which led to the

discovery of a “deep red spot, about the bigness of a flea bite” thus furthering suspicion of

witchcraft.54 While the records are not entirely clear, some reports indicate that Dorothy spent

two weeks under questioning by the Magistrates and provided her confession in hopes to be

reunited with her mother.55 Her confession, however, implicated both her mother and herself in

witchcraft.56 As a result, Dorothy would spend eight months imprisoned. While incarcerated, her

mother was found guilty of witchcraft but awaited execution until after giving birth to her second

daughter, Mercy, in prison. Dorothy would witness Mercy’s death in prison as well, likely a

result of malnutrition. Shortly after, her mother was executed. Upon execution, Sarah Good

refused to admit guilt, stating only: “I am no more a witch than you are a wizard, and if you take

away my life God will give you blood to drink.”57 After eight months of brutal prison conditions

and a mass of psychological trauma, Dorothy was finally released from prison upon bail when

52
Stephen Nissenbaum, The Salem Witchcraft Papers: Verbatim Transcripts of the Legal Documents of the Salem
Witchcraft Outbreak of 1692, (1977)
53
Id.
54
Id.
55
Peter Charles Hoffer, The Salem Witchcraft Trials, A Legal History, 66, (1997)
56
Stephen Nissenbaum, The Salem Witchcraft Papers: Verbatim Transcripts of the Legal Documents of the Salem
Witchcraft Outbreak of 1692, (1977)
57
Alina C., Guilty Before Trial: The Story of Sarah and Dorcas Good, NEW WORLD NEWS,
http://people.ucls.uchicago.edu/~snekros/New%20World%20News/New_World_News/Guilty_Before_Trial.html#:
~:text=I%20am%20no%20more%20from%20the%20Salem%20Town%20Prison.

14
the horrors of the trials concluded. Dorothy never recovered from the trauma she endured those

eight months and relied on her father’s support for the rest of her life. Her experience in the trials

illustrates the use of psychological harm to influence confessions; by separating a four-year-old

child from her mother, denying her nourishment, and subjecting her to lengthy interrogations,

Dorothy was coerced to confess regardless whether she knew what she was even confessing to.

These are but a few examples of the manner in which the Court of Oyer managed to elicit

confessions. Those who stood for trial would sometimes question whether they were truly

witches and simply did not know it, potentially as a result of the psychological impact of

coercion. Defendants were already physically and mentally tolled by their conditions and

experiences in the dungeons prior to trial. Prosecutors spoke in rhetorical and unworkable

manners to assert guilt, magistrates reminded the accused of the need to confess in full before the

court and God, and execution loomed over the accused. Combined, these factors left defendants

with little hope for freedom unless they succumbed to the court and provided a confession.

II

THE ROLE OF COERCED CONFESSIONS IN MODERN AMERICAN CRIMINAL PROCEEDINGS

After four major hearings and nearly a year of accusations, the trials would eventually

wind down as the Magistrates and officials feared it became out of hand.58 The Court of Oyer

and Terminer was replaced with a new court that expressly forbade the use of spectral evidence,

a key evidentiary component throughout the previous trials, and the hysteria slowly quieted

down.59 Slowly, the accused's cases were dismissed, and the convicted awaiting execution were

pardoned. One Magistrate, Justice Sewall, and twelve jurors would later apologize for their role

58
See Letter of Thomas Brattle, F.R.S., 1692 from Narratives of the Witchcraft Cases, 1648-1706 in which Brattle
details his concerns regarding the rising number of confessions.
59
Bernard Rosenthal, Tituba's Story, 71 THE NEW ENGLAND QUARTERLY 190, 205, (1998)

15
in the trials, and one of the ‘afflicted’ would express her guilt for participating in a “great

delusion of Satan.”60 In 1696, just three years following the conclusion of the trials, the Council

and Assemblies of his Majesties Province of the Massachusetts Bay declared a day of fasting in

recognition of the wrongdoings and victims of the Court of Oyer.61 Nearly three hundred years

later, all the convicted individuals have been formally exonerated.62 Acknowledging that some of

those who confessed to witchcraft during the Salem trials may have been guilty by 17th century

Puritan standards, it is apparent that those who confessed were subject to rigorous practices of

coercion including torture, loss of bodily autonomy, and threats of execution. The accused were

not provided legal counsel and thus had no one with legal knowledge to directly consult prior to

confession. Whether innocent or guilty, egregious harm was done by these acts of coercion.

While many look back to the lack of defense-oriented safeguards during these trials with a sense

of horror, many of the same specters that haunted the 17th century criminal procedures continue

to manifest in 21st century approaches to confessions; for example, in the United States

approximately “25% of overturned wrongful convictions involved a false confession,”63 many of

which were obtained after implementing similarly coercive tactics employed by the Salem

Village authorities. Thus, despite the now seemingly clear consensus that the infamous Salem

Village witch trials were the result of illegitimate evidence, fear mongering, and hysteria-based

60
Salem Witch Museum, What Happened in the Aftermath of the Trials?, (2021), https://salemwitchmuseum.com/
see also Emerson W. Baker, A Storm of Witchcraft: The Salem Trials and the American Experience, 246, (2014)
(Detailing similar expressions of guilt from the formerly afflicted).
61
Robert Calef, More Wonders of the Invisible World, 143 (1700)
62
Emerson W. Baker, A Storm of Witchcraft: The Salem Trials and the American Experience, 109, (2014) and see
Massachusetts Clears 5 From Salem Witch Trials, THE NEW YORK TIMES, (November 2, 2001),
https://www.nytimes.com/2001/11/02/us/massachusetts-clears-5-from-salem-witch-
trials.html#:~:text=More%20than%20three%20centuries%20after,officially%20exonerated%20by%20the%20state.
63
California Innocence Project, Issues We Face - False Confessions, (2021),
https://californiainnocenceproject.org/issues-we-face/false-confessions/

16
legal conclusions, there is still much the modern criminal justice system has yet to learn from

1692.

A. Legal Changes and Safeguards for Coerced Confessions

Some scholars, particularly Martha Young, argue that the greatest progress in criminal

practice since the Salem Witch Trials has been made in the realm of confessions.64 Through an

examination of the evidence relied upon in several of the trials held in 1692, Young asserts that

some of the strongest indicators of relevant legal progress have been gained through securing

legal safeguards against admissibility for confessions made under circumstances of torture.

Moreover, she directs readers to the Bruton rule which provides co-defendants safeguards from

another co-defendant’s self-incriminating statement. Yet, while these assertions hold true, the

safeguards Young references have yet to be fully developed and, in their current shape, still

provide plenty of room for inadequacies in the criminal procedure that remain detrimental to the

accused.

Young’s assertions address the fact that many of the fifty confessions had been made

under psychological or physical duress, while others may have truly believed they were guilty.

Nevertheless, she argues that “Confessions can no longer be physically or psychologically

coerced, and if by mistake they are, they are inadmissible as evidence.”65 This is further

supported by monumental cases detailing the inadmissibility of such evidence, such as Lisenba v.

California and Lyons v. Oklahoma.66 These cases build on the notion that coerced confessions

work against the fundamental safeguards encompassed under due process. In recognizing the

dangers of coerced confessions, the Court in Lisenba v. California stated plainly: “The aim of the

64
Martha M. Young, The Salem Witch Trials 300 Years Later: How Far Has The American Legal System Come?
How Much Further Does It Need To Go?, 64 TUL. L. REV. 235, (1989)
65
Id.
66
Lisenba v. California, 314 U.S. 219, (1941) and Lyons v. Oklahoma, 322 U.S. 596, (1944)

17
rule that a confession is inadmissible unless it was voluntarily made is to exclude false

evidence.”67 These cases build off the holding of Brown v. Mississippi, which determined that

involuntary statements are inadmissible, and defined voluntary statements as “the product of a

rational intellect and a free will.”68 There, the Court considered the fundamental protections of

due process to determine whether a statement made during a physically abusive police

interrogation was involuntary.69 Ultimately, the Court found that physical beatings and torture to

extract confessions are so abhorrent and contrary to the protections of due process that they are

almost certain to be deemed inadmissible.70

These cases indicate a commitment by the Court to protect individuals from the

prejudicial impact of an involuntary confession in criminal proceedings. Thus, in future cases the

Court has employed a totality of circumstances test to determine “whether the accused, at the

time he confesses, is in possession of mental freedom to confess to or deny a suspected

participation in a crime.”71 Circumstances to consider and balance in determining voluntariness

include the conduct of law enforcement during the interrogation, the mental state of the accused

as well as other pertinent characteristics specific to that individual, and the general circumstances

of the interrogation. The Court, however, provides that tests to determine whether a confession

was coerced or voluntary are left to the states, rather than a uniformly prescribed standard. Of

course, states must remain compliant with constitutional requirements of due process; however,

the totality of circumstances test leaves much interpretation to state judges. The Court notes that

there are procedural safeguards in place to reduce injustices during police interrogations as

67
Lisenba v. California, 314 U.S. 219, 236, (1941)
68
Brown v. Mississippi, 297 U.S. 278 (1936)
69
Id. at 281.
70
Id.
71
Lyons v. Oklahoma, 322 U.S. 596, 602 (1944) (citing Ashcraft v. Tennessee, 322 U.S., 143, 154)

18
required by Miranda v. Arizona, which mandates police notify suspects that they have the right

to remain silent, that anything said can be used against them, and that they have a right to an

attorney.72 The Miranda decision stops short of invalidating manipulative and coercive tactics

employed by police during interrogations and assumes that defendants that waive these rights

understand the gravity of the rights they have waived73 -- this has not gone unnoticed by critics.74

While Young correctly notes the progress in evidentiary rules governing coerced

confessions, it is important to note the flexibility of these coercion tests and the incredibly high

potential for involuntary statements to be entered into evidence. The overwhelming case law and

empirical evidence pertaining to this issue demonstrate that courts rarely find a statement to be

the result of coercion or circumstances rendering it involuntary.75 “On occasion, [courts] will

suppress confessions in cases where judges believe police officers crossed the line into an

unacceptable level of coercion,” although this is rare and often too late if the jury has already

been made aware of the confession.76 Even with the totality of circumstances test and procedural

safeguards of Miranda, trial courts “routinely find confessions voluntary that are the product of

extreme pressure, threats, and promises.”77 The improvements established in American

jurisprudence portray a society dedicated to the formidable protection of incriminating

statements made under coercive settings, but in practice these protections are both flimsy and

underutilized.

72
Miranda v. Arizona, 384 U.S. 436, 455, 467 (1966).
73
Id. at 444
74
Ariel Spierer, The Right to Remain a Child: The Impermissibility of the Reid Technique in Juvenile Interrogations,
92 N.Y.U. L. REV. 1719, (2017)
75
Id. at 1731
76
Ed Finkel, Are We Making Murderers? False Confessions and Coercive Interrogation,
ILL. B.J., 26, (April 2016) (quoting Professor Drizin)
77
Ariel Spierer, The Right to Remain a Child: The Impermissibility of the Reid Technique in Juvenile Interrogations,
92 N.Y.U. L. REV. 1719, (2017)

19
 Indeed, progress has been made in the realm of coerced confessions; defendants may

anticipate heightened review of the circumstances and standards leading to their confession. Yet,

these protections vary from state to state, and should an inadmissible coerced confession find its

way into a trial, the affected defendant’s appeal will be subject only to a harmless-error test.78

While the legal system acknowledges the harms of coerced confessions, both the protections it

affords to criminal defendants and safeguards it employs to prevent coercion continue to fall

short.

B. Modern Injustices as a Result of Coercion

While there is certainly some validity in stating that the criminal justice system has made

strides in the prevention and protection of coerced confessions, modern injustices demonstrate

eerie parallels to the methods of coercion used in Salem Village 1692 that suggest the contrary.

Confessions remain a highly effective evidentiary tool to convict defendants, and similarly to

the accused in 1692, those who confess may be offered lighter sentences. Modern prosecutors

have wide discretion in the charges they file which provides them with “tremendous leverage in

plea bargains.”79 Prosecutors frequently offer defendants lesser charges in exchange for a guilty

plea, which forces the defendant to decide between pleading guilty to a crime they may not have

committed or risking their freedom during trial. In an illustrative example of the significant risks

at play, Paul Hayes faced allegations of writing a fraudulent check which would result in his

third felony charge. Under his jurisdiction’s Habitual Crime Act, Hayes faced a life sentence if

convicted. Adamant he was innocent, Hayes refused the prosecution’s deal that he plead guilty

for a lesser charge with a five-year sentence and instead opted for a jury trial. Hayes was found

78
Arizona v. Fulminante, 499 U.S. 279, (1991) (applying harmless-error doctrine to coerced confessions for the first
time by a plurality vote)
79
Chris Calton, Government Prosecutors Are Out of Control, MISES INSTITUTE, (August 21, 2019),
https://mises.org/wire/government-prosecutors-are-out-control

20
guilty and, despite several appeals, was unable to reverse his conviction. Others in Hayes

situation may not be willing to take this risk, however, aware that the odds are stacked against

them. For example, in a case involving kidnap and rape charges, defense attorney Benjamin

Davis explains that, although there was substantial evidence to prove his client’s innocence,

when offered a lesser charge of simple battery in exchange for a confession of guilt, the client

accepted, stating “I can’t take the chance.”80 The notion of confessing to a charge in order to

avoid risking a potentially more severe deprivation of freedom or life is undeniably similar to the

elements of coercion at play when accused witches like Dorcus Hoar confessed to their alleged

crimes in hopes to avoid execution.

An array of psychological factors during interrogation and questioning also put pressure on

defendants to confess regardless of their innocence or guilt. In modern criminal matters, police

have broad authority in how they conduct interrogations. Most prominently, law enforcement

employs the Reid Technique, an “interrogation process that is designed to obtain an admission of

guilt,” as described by the creator of the technique.81 The technique employs a series of steps that

require rigorous questioning and psychological tactics to coerce a confession. In early steps,

interrogators are taught to propose “reasons and motives that will serve to psychologically justify

or excuse the suspect's criminal behavior.”82 They are also taught that “Truthful suspects usually

do not ask to talk … [instead,] their denials strengthen.”83 Thus, interrogators utilizing this

technique must continue to press the accused unless they do not wish to talk; however, little

evidence supports this concept that truthful suspects do not talk. Should the accused continue to

80
Albert W. Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U. CHI. L. REV. 50, (1968)
81
Joseph P. Buckley, The Reid Technique of Interviewing and Interrogation, 2012,
https://connect.ilprincipals.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=e4549d68-
cb10-47c0-aa94-380438b7798c&forceDialog=0
82
Id.
83
Id.

21
deny, interrogators must then propose alternative situations, essentially “two incriminating

choices concerning some aspect of the crime - based on an assumption of guilt.” The goal of this

step is to provide two alternatives to justify why the accused may have committed the crime; one

alternative is framed in an ethical and justifying manner while the other is cast in a more

‘criminal’ and negative light.

The final step of this technique requires the interrogator to “make sure the accused

provides a statement that their confession was voluntarily provided.”84 Despite this, the Reid

Technique relies heavily on psychological tactics to coerce the confession, which negates the

notion that such statements were provided voluntarily. Deceptive techniques, such as lying about

incriminating evidence when none exists, have been upheld by the Supreme Court for decades,

yet these techniques carry significant risks of coercion and manipulation.85 In an interview with

Dr. Saul Kassin, a psychology professor and confession researcher, explained the psychological

impact of interrogative practices like these:

“The reason why people confess to crimes they did not commit is because they are
subject to pressures of interrogation, a highly aggressive form of social influence. In the
interrogation, especially in American style interrogation, people can become so stressed
and so broken down and they start to feel so hopeless about their current situation that
they come to believe in a rational way a confession is in their best interest. In some cases,
they get so confused by the fact that American police are permitted to lie about evidence
— and I mean lie about DNA, prints, surveillance footage, polygraph results — that in
some cases people accused of crimes, particularly kids and others who are limited
intellectually, become so confused by the lies that they actually come to believe they
have committed this crime they did not commit. They wonder why it is they can’t recall
it. They are led to believe that it is possible for people to transgress without awareness,

84
Id.
85
See Frazier v. Cupp, 394 U.S. 731, (1969) (affirming conviction of defendant after finding that a police officer’s
misrepresentations during interrogation that defendant’s associate had confessed did not influence an involuntary
confession); Oregon v. Mathiason, 429 U.S. 492, (1977) (holding that the Supreme Court of Oregon erred in
reversing a defendant’s conviction for murder finding that his voluntary arrival at police station for an interview
rendered Miranda inapplicable and that the police officer’s lie that defendant’s fingerprints were found at the crime
scene did not affect the voluntariness of his confession); and Nightingale v. Maine, 569 U.S. 1032 (2013) (certiorari
denied where defendant sought to appeal a denied motion to suppress for a confession elicited during a “deliberate”
two-step process utilized by interrogating officers to obtain confessions)

22
 for people to do something terrible and repress it. So they develop basically an inference
that they must have committed this crime.”86

Essentially, the technique either coerces the accused into confessing out of fear or invokes so

much stress that they believe they may actually be guilty. This is reminiscent of the

psychological impact the Salem Witch Trials had on the accused. Subject to significant stress

during cross examination and exposed to daunting spectral evidence by their accusers, some

defendants eventually asked, on the record, whether they had become witches without their

knowledge.87 One accused woman was so confused and surprised by her mother’s conviction and

accusations made against her that she asked, “Where is my mother that made me a witch and I

knew it not?”88 These individuals began their trials with an assurance of their innocence, but the

coercive techniques employed by the court officials led to the psychological phenomenon

described by Dr. Kassin: when so confused, stressed, and hopeless, one becomes engulfed in the

possibility that they truly are guilty that they eventually come to believe it. Nevertheless, the

Reid Technique, which employs psychological tactics highly likely to induce this psychological

state, remains a prominent approach to police interrogations and has been approved by the

Supreme Court.89 While some courts may render certain confessions or statements made during

the course of these types of interrogations, the fact alone that these coercive techniques were

employed do not automatically render these statements inadmissible.90

86
Evan Nestarek. Coerced to Confess: The Psychology of False Confessions, BEHAVIORAL SCIENTIST, (Oct. 21,
2014), https://behavioralscientist.org/coerced-to-confess-the-psychology-of-false-confessions/
87
Emerson W. Baker, A Storm of Witchcraft: The Salem Trials and the American Experience, 157, (2014)
88
Stacy Schiff, The Witches of Salem, THE NEW YORKER, (August 31, 2015),
https://www.newyorker.com/magazine/2015/09/07/the-witches-of-salem
89
Ariel Spierer, The Right to Remain a Child: The Impermissibility of the Reid Technique in Juvenile Interrogations,
92 N.Y.U. L. REV. 1719, (2017)
90
Editorial Board, Reid technique is problematic, LAW TIMES, (December 11, 2017),
https://www.lawtimesnews.com/archive/reid-technique-is-problematic/262844

23
 Looking past the interrogative process, the process of holding accused individuals prior

to trial with or without bail is another aspect of coercion similarly employed by Salem 1692. As

aforementioned, the accused were immediately held in a dungeon or jail and subject to

environmental factors that potentially impacted their later confessions. The same is true today.

Nearly 60% of individuals in county jails have yet to be convicted for the crime they are held

on.91 This practice poses an alarming potential for coercion, with data suggesting “that detention

itself creates enough pressure to increase guilty pleas.”92 This is especially harmful for

individuals who cannot afford bail. Research focused on New York City found that 85% of

individuals in that jurisdiction could not afford to make bail set at $1,000 or below.93 While held

in jail, these individuals, who are supposedly presumed innocent until proven guilty, are subject

to physical abuse, sexual assault, and psychological trauma.94 As a result of this pressure, stress,

and fear, research has found that “bail makes poor people who would otherwise win their cases

plead guilty.”95 While there is a notable difference between confessions and guilty pleas, there is

a similar element of coercion involved that parallels the Salem Witch Trials and speaks to the

danger of coercive tactics like these.

The 1990s brought a similar type of mass hysteria among the United States as the fear of

“super predators” erroneously charged juveniles of the era as more dangerous and wicked than

ever before. This would eventually lead to the charges of Kevin Richardson, Antron McCray,

Yusef Salaam, Raymond Santana, and Korey Wise. Just between the ages of 14-16, these

91
Nick Pinto, The Bail Trap, THE NEW YORK TIMES, (August 13. 2015),
https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html
92
Id.
93
Luke Darby, How The For-Profit Prison Industry Keeps 460,000 Innocent People in Jail Every Day, GQ, (May
24, 2019), https://www.gq.com/story/abolish-cash-bail
94
Nancy Wolff & Jing Shi, Contextualization of Physical and Sexual Assault in Male Prisons: Incidents and Their
Aftermath, 15 J. OF CORRECTIONAL HEALTH CARE 58, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2811042/
95
Nick Pinto, The Bail Trap, THE NEW YORK TIMES, (August 13. 2015),
https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html

24
children were accused of the brutal rape of a female jogger in Central Park, New York City in a

case that both horrified and captivated the nation. Not unlike the accused of the Salem Witch

Trials, the accused children (later coined as the “Central Park Five”) were subject to long and

brutal interrogation. For over seven hours each, these minors were interrogated under severely

coercive tactics including “physical force, aggressive questioning, shouting, threats, and lies,” all

in which are permissible forms of interrogation under the law besides physical force.96 These

practices were not only physically aggressive but also psychologically traumatizing, especially

given how young the accused were. Testifying to the psychological impact these tactics had in

eliciting his confession, the youngest of the accused, then twelve-year-old Korey Wise,

explained that he “wanted to go home.”97 Pressed whether the police forced him to confess, he

stated again “I tell you, I wanted to go home.”98 Like Dorothy Good, who wanted only to be

reunited with her mother, the accused all confessed on a promise that they would be able to

return home should they confess to their alleged crime.99 Under duress and coercion, each of the

five children provided their confessions to a crime they clearly had not committed and were

sentenced a minimum of five to ten years, with the oldest accused sentenced to upwards of

fifteen years as an adult.100 These individuals were sent to juvenile detention centers and adult

96
Elizabeth Vulaj, From the Central Park 5 to the Exonerated 5: Can It Happen Again?, N.Y. ST. B. ASS’N,
(August 1, 2019), https://nysba.org/from-the-central-park-5-to-the-exonerated-5-can-it-happen-
again/#:~:text=According%20to%20the%20teens%2C%20the,confessions%20was%20not%20put%20on
97
Gina Tron, 'I Wanted To Go Home': Korey Wise's Heartbreaking Testimony In The 'Central Park 5' Case,
OXYGEN, (June 5, 2019), https://www.oxygen.com/martinis-murder/i-wanted-to-go-home-korey-wise-
heartbreaking-testimony-in-central-park-5-case
98
Id.
99
Elizabeth Vulaj, From the Central Park 5 to the Exonerated 5: Can It Happen Again?, N.Y. ST. B. ASS’N,
(August 1, 2019), https://nysba.org/from-the-central-park-5-to-the-exonerated-5-can-it-happen-
again/#:~:text=According%20to%20the%20teens%2C%20the,confessions%20was%20not%20put%20on
100
Aryelle Siclait, How Long Were The Central Park Five In Prison? Netflix's 'When They See Us' Tells Their Story,
WOMEN’S HEALTH MAGAZINE, (June 16, 2020), https://www.womenshealthmag.com/life/a27679359/central-park-
five-prison-how-long-netflix-when-they-see-
us/#:~:text=Yusef%20Salaam&text=Found%20guilty%20of%20rape%20and,6%20years%20and%208%20months
and Innocence Staff, Korey Wise, THE INNOCENCE PROJECT, (2021), https://innocenceproject.org/cases/korey-wise/

25
prisons for years while they continued to maintain their innocence post confession. Had it not

been for a voluntarily provided confession of the true perpetrator of the Central Park crime,

paired with supporting DNA evidence, these five individuals would have remained guilty and

incarcerated for a crime they did not commit, because of a confession they were coerced to

give.101

In a recent inquiry initiated by the Bronx District Attorney regarding misconduct in

interrogation practices by three judges for a murder case, it was found that their interrogation

practices led to the false confession of murder by Huwe Burton, a 16 year old at the time.102

Burton was accused of murdering his mother, yet “despite a lack of physical evidence, his

timeline not matching up to the details of the crime, and his coerced confession,” he was charged

and sentenced for fifteen years to life in prison.103 In Philadelphia, similar concerns of

misconduct in interrogations have arisen as exonerations and allegations of coerced confessions

continue to surface. After a stringent and fear-mongering interrogation, Danielle Crawley falsely

confessed that her brother had pulled a gun out during a confrontation with law enforcement.104

Crawley maintained that her brother did not take his gun out and was shot by the police officer

unprovoked, but after hours of interrogation she became exhausted and increasingly anxious. The

detective continuously asserted that Crawley, “Sit there and think about what could happen to

[her] daughter.”105 Later threatened by the detective that she would be thrown in jail and her

child removed from her custody, Crawley eventually fell victim to these psychologically

101
Innocence Staff, Korey Wise, THE INNOCENCE PROJECT, (2021), https://innocenceproject.org/cases/korey-wise/
102
Jan Ramson, 3 Detectives Obtained a False Murder Confession. Was It One of Dozens?, N.Y. TIMES, (Feb.
15, 2021), https://www.nytimes.com/2021/02/15/nyregion/3-detectives-obtained-a-false-murder-confession-was-it-
one-of-dozens.html
103
Id.
104
Samantha Melamed, Losing Conviction, THE PHILADELPHIA INQUIRER, (May 7, 2021)
https://www.inquirer.com/crime/a/philadelphia-murder-exonerations-wrongful-convictions-20210507.html
105
Id.

26
coercive tactics and confessed to the interrogator’s version of events.106 Four years ago in the

same city, Anthony Wright was acquitted for a crime DNA evidence proves he did not

commit.107 In the moments leading to his confession, later deemed false, Wright states that he

had been handcuffed to a stationary chair as officers “threatened to rip his eyes out and “skull-

f—” him.108 After four hours in these conditions, he agreed to sign a confession admitting guilt

for the rape and murder of his neighbor which would later serve as key evidence during his

initial trial, and again during his retrial. It took twenty-five years for Wright to leave prison as a

free man.

Although courts look to police conduct during the interrogation to determine whether a

confession was voluntary or coerced, there are no uniform laws mandating interrogations be

recorded in full which makes it difficult for courts to ascertain what actually happened during the

interrogation.109 While evidentiary and constitutional safeguards against the admission of

involuntary statements as the result of physical abuse110 have moved interrogations more towards

psychological deception, the lack of documentation during interrogations impairs the court’s

ability to determine whether those safeguards were upheld and whether the confession was a

result of improper interrogations. Moreover, without video surveillance of the interrogation,

interrogating officers can easily escape accountability should they invoke physical force. This

was the case for Anthony Wright, who was violently threatened during his interrogation and

106
Id.
107
Menasah M. Dean & Mark Fazlollah, Philly man, wrongly imprisoned for 25 years, gets nearly $10 million from
city, THE PHILADELPHIA INQUIRER, (June 6, 2018), https://www.inquirer.com/philly/news/crime/anthony-wright-
louise-talley-10-million-settlement-dna-evidence-rape-murder-nicetown-25-years-philadelphia-20180606.html
108
Id.
109
False Confessions & Recording of Custodial Interrogations, THE INNOCENCE PROJECT,
https://innocenceproject.org/false-confessions-recording-interrogations/
110
Brown v. Mississippi, 297 U.S. 278 (1936)

27
wrongfully convicted as a result of his coerced confession.111 Wright claims that he was punched

in the chest by officers during the interrogation, but without video evidence his claims were

given little attention during trial.112 In another case, Jose Felton challenged the admission of his

confession because he was provided alcohol during the interrogation. Lacking evidence of what

happened, Felton’s conviction was upheld.113 The children of the Central Park Five underwent

hours of emotionally and physically abusive interrogation but only their final confessions were

recorded, leaving the defendants unable to prove just how violently coercive their interrogations

were. Had their interrogations been recorded in entirety, however, they might not have ever been

convicted because the court would have seen the abuse that took place. A crucial factor in the

totality of circumstances test to determine whether a statement was voluntarily made involves an

analysis of the interrogation itself. When courts are limited to relying on affidavits and testimony

from those involved in the interrogation this analysis is severely hindered. Thus, without proper

documentation of interrogations, constitutional safeguards pertaining to coerced confessions are

weakened.

The Salem Witch Trials are a historic injustice rich with lessons on the importance of

judicial integrity, due process, and evidentiary standards. So why does America continue to

employ coercive tactics not at all unfamiliar to those Salem Village authorities used to obtain

confessions in 1692? What lessons have been lost since then that could have protected

individuals like Anthony Wright, Huwe Bruton, Danielle Crawley and her brother, and the

children of the “Central Park Five” from providing coerced confessions?

111
Menasah M. Dean & Mark Fazlollah, Philly man, wrongly imprisoned for 25 years, gets nearly $10 million from
city, THE PHILADELPHIA INQUIRER, (June 6, 2018), https://www.inquirer.com/philly/news/crime/anthony-wright-
louise-talley-10-million-settlement-dna-evidence-rape-murder-nicetown-25-years-philadelphia-20180606.html
112
Id.
113
Jan Ramson, 3 Detectives Obtained a False Murder Confession. Was It One of Dozens?, THE NEW YORK TIMES,
(Feb. 15, 2021), https://www.nytimes.com/2021/02/15/nyregion/3-detectives-obtained-a-false-murder-confession-
was-it-one-of-dozens.html

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 III

LESSONS LOST FROM THE INFAMOUS WITCHCRAFT TRIALS OF 1692

Although the modern legal system has moved away from dungeons, hog-tying, and

spectral evidence, there are still many connections to be made between today and 1692. The

factors that led to coerced confessions in the Salem Witchcraft Trials are still present today:

Offers of leniency for those who confess, psychologically manipulative and coercive

interrogation practices, subjection to environmental stress by holding individuals pre-trial, and a

jarring lack of safeguards to prevent state authorities’ from abusing their power continue to taint

criminal matters. Moving forward, it is imperative that policymakers consider the rights at stake

when an individual is subject to rigorous, psychologically confusing, physically exhausting, and

lengthy interrogations. Dr. Kassin’s explanation emphasizes the need for policymakers and those

involved in the legal system to understand the impact that these tactics have on creating

unreliable and false confessions. Given the great strength a confession carries in the criminal

adjudicative process and the impact it has on both the accused and the judicial system as a whole,

changes must be made to reduce the risk of coerced confessions. Thus, the following

recommendations consider the aforementioned concerns and incorporate the lessons the legal

system has yet to learn from the coerced confessions of the infamous Salem Village witch trials

three centuries ago all the way to the modern coerced and false confessions elicitation of the

Central Park Five:

I. Reform the structure of plea bargaining to reduce prosecutors currently unfair advantage

that allows for substantial coercion over the defendant. Few safeguards exist during the

plea-bargaining process which allows prosecutors to hide evidence favorable to the

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 defendant during negotiations114 and stack potential charges to enhance the defendant’s

potential sentence115 behind closed doors. There are several options in reforming the

plea-bargaining process, all in which seek to level the playing field between the

prosecutor and defendant. Potential changes include strengthening discovery rules to

prevent prosecutors from hiding favorable evidence during negotiation stages,

demystifying the negotiation process by making public any policies or procedures

implemented by that jurisdiction, and holding prosecutors accountable to these

procedures.

II. Reduce the number of individuals held pre-trial as a result of their inability to post bail by

eliminating cash bail altogether and severely narrowing the scope of those who can be

held without bail. Like the accused in 1692, “nearly half a million people languish in jail

cells across America,” while they wait for trial, thereby subjecting those deemed innocent

until proven guilty to horrendous environmental pressures and psychological stress.116

Bail exists to ensure that individuals will return for later court appearances; however, as

advocated by the Bail Project, “Pretrial liberty should not be a question of money.”117

The impact of pre-trial detention on one’s mental state can severely impact whether one

will plead guilty.118 With this in mind, pre-trial detention should only be used in very

limited and serious situations.

114
Eric Gonzalez, Commentary: Reform discovery rules, writes district attorney, TIMES UNION, (March 2, 2019),
https://www.timesunion.com/opinion/article/Commentary-Reform-discovery-rules-writes-13656795.php
115
116
After Cash Bail: A Framework for Reimagining Pretrial Justice, THE BAIL PROJECT, (2020),
https://bailproject.org/wp-content/uploads/2020/02/the_bail_project_policy_framework_2020.pdf
117
Id.
118
Nick Pinto, The Bail Trap, THE NEW YORK TIMES, (August 13. 2015),
https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html

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III. Prohibit law enforcement from utilizing psychologically coercive interrogation practices

such as lying during interviews or utilizing the Reid technique. Research consistently

demonstrates that these techniques increase the risk of false confessions; instead, law

enforcement can utilize non-accusatorial interviewing techniques which are far more

effective in eliciting truthful information.119

IV. Hold interrogation officers accountable by requiring the entirety of the interrogation be

filmed. Without this documentation, courts are unable to accurately determine whether a

confession was voluntary under the totality of circumstances test. Moreover, law

enforcement is less likely to be held accountable for physical abuse unless there is actual

documentation of the act. Safeguards preventing officers from employing physical abuse

to elicit confessions are essentially ineffective unless there is a way to hold them

accountable.

CONCLUSION

“The people of Salem believed that the devil was at work in their community. It turns out they
were right--it just wasn't the one they were after. This demon took the form of denial of counsel,
rank hearsay, character assassination, and an unblinking confidence in "what everybody
knows." The New Testament tells us that when the devil failed to tempt Jesus, he went away--but
planned to return at an "opportune time." Our responsibility, as litigators, prosecutors, defense
counsel, and judges, is to prevent that time from being our own.”120

As so aptly stated by Len Niehoff, it is the legal profession's responsibility to prevent the

same injustices endured by the accused in Salem 1692 as they manifest in our modern legal

system today. Great strides have been made over the past three centuries to protect freedom and

uphold justice; since the injustices of the Salem Witch Trials, an array of legal safeguards have

been established to prevent the use of coerced confessions as evidence in trials. Though today’s

119
Robert Kolker, Nothing but the Truth, THE MARSHALL PROJECT, (May 24, 2016),
https://www.themarshallproject.org/2016/05/24/nothing-but-the-truth
120
Len Niehoff, Feature, Proof At The Salem Witch Trials, 47 LITIG. 21, (2020)

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courts recognize the danger of coerced confessions and employ evidentiary standards to

determine whether a confession is admissible, no matter how time passes, individuals will

always remain susceptible to admitting guilt to a crime they did not commit when subjected to

coercive measures. From the accused witches languishing in the Salem dungeon facing a near

certain death to the young boys of the Central Park Five subjected to hours of interrogation,

physical harm, and psychological deception, the parallels of modern America and colonial Salem

Village are glaringly apparent.

Over a year after Tituba’s confession, she finally returned to a Grand Jury for her formal

indictment unaccompanied by counsel. By then, however, the courts no longer accepted spectral

evidence or confessions obtained during the period of mass hysteria and ultimately refused to

indict her.121 Despite this, Tituba remained in the Salem Dungeon for a few months afterward

because she was unable to pay her prison fees. Today, Tituba would have the right to an attorney

at the indictment. She would be released from prison upon the Grand Jury’s refusal to indict her.

She could invoke her right against self-incrimination should the court further question her. Yet,

despite this progress, if Tituba faced a tribunal today, the chances that her coerced confession be

admitted into evidence are high. Even with procedural safeguards under Miranda and the

application of totality-of-circumstance tests, there is no guarantee that Tituba’s involuntary

confession will be withheld from evidence. Whether her confession was true or not, there lies

great danger in admitting evidence obtained under coercion. Today, one cannot ascertain how

many individuals were convicted as a result of a coerced confession, nor can one immediately

derive how many of those confessions were false. Without effective safeguards to prevent the

elicitation and use of coerced confessions, an unknown number of individuals will face similar

121
Emerson W. Baker, A Storm of Witchcraft: The Salem Trials and the American Experience, 42, (2014)

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fates as the accused of Salem Village. This not only threatens the liberty and freedom of the

accused, but also the very pillars of the judicial system and democracy itself. With every historic

injustice is an array of lessons to learn, but it appears that some were lost in the chaos of 1692.

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