Proof at the Salem Witch Trials

• Author: Len niehoff
• Pages: 21-25

Published in Litigation, Volume 47, Number 1, Fall 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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Proof at the

Salem Witch Trials

LEN NIEHOFF

The author is Professor from Practice at the University of Michigan Law School, of counsel to

Honigman LLP in Ann Arbor, and an associate editor of Litigation.

As of the writing o f

this article, Presi-

dent Donald Trump’s

tweets have included

roughly 400 references

to “witch hunts.” In a

sense, this is unsurpris-

ing. The Salem witch

trials have a special

place in our national

identity and vocabu-

lary. Most Americans

understand the refer-

ence, even if they know

few of the historical

details. And the phrase

“witch hunt” serves as

a useful shorthand for

any frenzied chase after something that does not exist. The Salem

trials also inspire a peculiar fascination: Perhaps no other site

of deadly mass hysteria has become a major tourist destination.

Still, most practicing litigators probably know very little about

the Salem witch trials. That’s a shame because the Salem pro-

ceedings have a lot to teach us. They offer countless insights

into the significance

of a stable and impar-

tial judiciary, the in-

dispensable place of

legal counsel, the crit-

ical role of procedure,

and—most importantly

for purposes of this ar

-

ticle—how the concept

of proof can go terribly

wrong. As tends to hold

true with Salem’s les-

sons, these are mostly

cautionary tales.

Historica l

Context

Permit me to start with some historical context, because that

does a great deal of work here. Americans often indulge in a kind

of “Salem exceptionalism,” treating the events of 1692 as if they

were an isolated and idiosyncratic departure from the long arc

of human affairs. Countless books have tried to explain why the

Salem witch craze happened, as if it were an aberration, pointing

Illustration by T im Foley