Some consider the Salem witch trials to be a relic of primitive times where superstition overcame sense. To an extent, the last centuries have witnessed a great deal of progress in creating procedural protections for criminal defendants. However, when one removes the self-congratulatory lens in revisiting the witch trials, it becomes clear that our criminal justice system has imported certain errors from seventeenth century prosecutions. Some things never change.
Witchcraft prosecutions often involved testimony about behavioral characteristics and identifying features consistent with witchcraft. For instance, witchcraft “experts” would testify that defendants displayed peculiar physical features known as “witches’ marks” or “witches’ teats,” which were unusual growths on the skin believed to be indicative of satanic possession. Such experts would also testify to the accused witch’s remarkable strength and to behavioral tests, such as the “recitation of the Lord’s Prayer test,” which required the accused to recite the prayer without error.
Modern criminal investigations, too, are replete with use of profiles. Consider, for example, the behavioral drug courier or distribution profiles commonly relied upon by law enforcement as a basis for probable cause or reasonable suspicion to conduct a stop or search of a car or person. The abstract of behaviors relied upon by law enforcement includes, but isn’t limited to: whether an apparent transaction or sequence of events was “unusual;” whether the participant appeared nervous or moved “furtively;” whether the encounter took place in a “high crime area;” and whether the officer observed an item being exchanged or a hasty departure.
The problems with drug-related profiles are much the same as those inherent in the witchcraft profiles. For one thing, the drug profile is far too broad and uses non-criminal behaviors in an effort to divine criminal activity. As Thomas Brattle, a scientist and merchant questioned in the “witches’ mark” context, who doesn’t have some type of skin tag? Another problem common to both the drug profile and the witchcraft profile is the chameleon-like way of adapting to any set of observations, with reliance on contradictory behaviors for the very same purpose. For example, in the drug context, if the suspect moves around, then he is described as “furtive,” but if he sits still, then he is described as “nervous” in appearance. Similarly, in the witch trials, both inability to recite the Lord’s Prayer and flawless recitation of the prayer were used as evidence of guilt, depending upon which purpose suited the particular prosecution.
2. Cross-cultural incompetence
Many scholars believe that Cotton Mather’s treatise “Memorable Providences” had a major role in inciting the witch trials. The treatise described the curious suffering of Boston’s Goodwin children at the hands of a “hag” named Glover. Glover was an Irish Catholic immigrant who spoke Gaelic. As Glover could only recite the Lord’s Prayer in Latin, she failed the test. Due in part to this cultural divide between Glover and her Puritan accusers, she was brought to trial and hanged.
Today, our system continues to fail in adequately addressing in the role of cultural differences in credibility assessments. It seems that if fact finders rely upon appearance and demeanor, then they may be prone to misinterpretation of the behavioral patterns of different cultural or ethnic groups. For instance, reliance upon lack of eye contact as a sign of deception could be misinterpreting this behavior in cultural groups in which eye contact shows disrespect. In other example, certain cultural groups suppress emotive expression in favor of a flat affect, which could be viewed as contextually inappropriate or as a sign of lack of remorse.
3. Syndrome evidence
Syndrome evidence was heavily relied upon in the Salem cases. Of primary significance in the witch trials was the belief that witchcraft effected strange and inexplicable physical illnesses and death in both humans and animals.
The obvious contemporary parallel is syndrome evidence in rape and child sexual abuse cases. Here in Massachusetts, the Supreme Judicial Court noted that courts have uniformly allowed expert testimony on the typical symptoms of sexually abused children because the information is beyond the common knowledge of jurors and of assistance in assessing a victim witness’s testimony and credibility. Experts may describe behavioral signs and symptoms, such as sexualized play, knowledge of adult sexual functions, clinginess, bedwetting, nightmares, fears and anxieties related to body parts, people, and places involved in the sexual abuse. The SJC has decided that a trial judge has the discretion to admit expert testimony concerning rape trauma syndrome to rehabilitate a victim’s testimony or to explain delayed or unusual disclosure of abuse. In certain other states, experts are permitted to testify about common behaviors of sexually abused children as substantive evidence of the crime. Not so much in Massachusetts, but in these other jurisdictions, the problem with syndrome evidence, both today and during the witch trials, is that the question of a connection between the victims’ behaviors and the crime is largely disregarded.
While, in the law, we don’t always recognize problems while they’re happening, it’s important that we try. Have a safe and happy Halloween, and call me at (617) 336-7250.
As panic is sweeping across Massachusetts following several overdoses and one death tied to MDMA, known as “Molly” or ecstasy, police fear that the drug is becoming “mainstream” or that there is a “bad batch” of the drug in circulation. There has been heightened media attention to relatively low-level MDMA arrests, and talk of ramping up the “war on Molly.” Has anyone in law enforcement or the media stopped to consider that all this attention to the drug is creating the perverse consequence of inciting curiosity and increasing its popularity?
Declaring “war on whatever drug of the moment” does not work, and it never has.
These drives accomplish nothing more than creating a “forbidden fruit” syndrome. In demonizing a particular drug, these campaigns simultaneously glamorize it. While it’s certainly possible that a “bad batch” of Molly is going around, I think it’s probably more likely that the excessive attention to it is actually increasing the drug’s appeal. This may be an unpopular view, but I also think that these campaigns are, all too often, just thinly-veiled lobbying strategies by law enforcement to increase police budgets or propaganda tools to indoctrinate the public in the politics of the ever-failing drug war.
Very clear patterns emerge when we exaggerate the importance of a particular drug, or drugs in general: increased drug use and drug use at a much earlier age. Dave Chappelle illustrated this point in a funny but extremely effective way in his Tyrone Biggums “Drug Awareness Day” skit. Tyrone, who suffers from a crack cocaine addiction, speaks to the students about the dangers of drug use, and at the same time, glamorizes drugs and teaches the students how and where to get them. He tells them:
It is truly an honor and a privilege for me to be here at Pinehurst school or whatever your school is called today. I say it is a privilege because it is a violation of my parole to be around children…
Kids, y’all are looking at a dead man. I should not be in front of you today! Drugs and alcohol have ruined my life. I started doing drugs when I was little, just like you. Me and my friends would go home and smoke marijuana after school…and me and my friends would laugh and giggle, and eat all of the cookies! It was terrible! TERRIBLE!
Then I upgraded to a little drug called acid. Very inexpensive and affordable, even young children could afford it. It was so bad! I did two hits of that! And Bugs Bunny and Scooby Doo and all of my favorite cartoon heroes came to my room and ate cookies with me, and sang songs for 16 hours! God damn! Talking about, “Tyrooooone, don’t clean up your rooooom.” And Mickey Mouse was doing the bass line this, “Ba-ba-ba-booooo. Ba-ba-ba-booooo.”
We all know you can sneak into your momma’s room, while she’s sleeping, and take 5, 10 maybe 20 dollars from her purse, run on down to 3rd Street, catch the D bus downtown, and meet a Latin American fellow named Martinez, we know that! And we know that Martinez’ stuff is the bomb!
The Tyrone skit shows, in an entertaining way, the problem with undue attention to drugs. It introduces people, especially the young, to drugs that they would probably have never heard about or considered. I think that there will be more Molly use and distribution as long as we have this Molly hysteria. The police, in publicly expressing fear that Molly will become “mainstream,” are themselves contributing to the drug becoming mainstream.
The “war on Molly” will be yet another losing one.
Call me at (617) 336-7250.
When I was a teenager I was, like all teenagers, an idiot who did idiot things. Like compulsively “tagging” with Sharpie every park bench, payphone, and bus interior in sight. Also my bedroom wall. As you can see in the photo, this was some pretty high art we’re talking about. Unfortunately, my parents didn’t really think so. From this, I learned that “art” and “damage” are not mutually exclusive concepts. These silly bubble letters could be “art” in my eyes and, at the same time, also constitute “damage.” “Art” and “damage” are dependent upon context and the observer’s response to and interaction with the subject material.
So, given this ambiguity of artistic merit and aesthetic value of street art, how should substantive criminal law approach liability of graffiti artists? Are graffiti writers “artists,” or are they “vandals” who should be prosecuted? These questions are not often addressed by practitioners, academics, or appellate courts, and I think that they deserve discussion.
One issue that arises is whether graffiti art is destruction of or injury to property. Graffiti does not always impair the value or use of property. In fact, sometimes graffiti art dramatically increases economic value. Take, for instance, the work of Banksy, the famed graffiti artist whose works of political commentary are featured on public spaces worldwide. Banksy’s graffiti murals are often said to increase economic and social benefits for residents and businesses, as they tend to draw in tourists and increase neighborhood vibrancy. In one example, Banksy, without the homeowners’ permission, painted a mural on the side of a house, causing the property value to soar. In other cases, graffiti art may not have any effect at all on the value or use of property. Using another Banksy example, Banksy painted murals on the West Bank barrier, which separates Israel from Palestinian territories. There, the murals had no effect on the value or usefulness of the wall. Basically, my point here is that we cannot properly consider the legal significance of graffiti art without appreciation of its spatial context and its economic, political, and social value.
Another issue involves intent and the individual defendant’s perception of his graffiti. Can a defendant be said to have acted maliciously, or even wantonly, if he truly believed that he was only creating a work of art, qualitatively distinct from property destruction or injury? In the context of most other crimes, this issue doesn’t come up because the terms have an objective quality. For example, in a murder case, a defendant couldn’t reasonably argue that the intended outcome wasn’t “death” because he personally perceives an objective “death” as some other type of phenomenon coming under a different label. In contrast to “death,” the concepts of “destruction” or “injury,” in this context, are almost entirely subjective and context-dependent, requiring an observational affective response. Unsurprisingly, however, the prevailing view is that the defendant’s perception of his work is legally irrelevant, due largely to the law’s symbolic disapproval of interference with others’ property rights.
I find the laws governing property crimes so interesting because there is no real social consensus or clear dividing line between criminal and non-criminal activity. I tend to enjoy getting creative with legal issues, and the ambiguity in these laws offers so much opportunity for that. What are your thoughts on graffiti art in the criminal context? Do you love Banksy’s work as much as I do? Have you ever seen “DeNi$e 1999” written in a bathroom stall? Call me at (617) 336-7250, and tell me about it.
There’s been a whole lot of good old-fashioned slut shaming going on in recent weeks, from the Miley Cyrus thing to the 17-year-old girl who was photographed giving a blowjob at an Eminem concert to the sketchy mom who wrote an “open letter” picking on teenage girls for taking selfies. Regardless of what I think of Miley and the others, it is beyond disgusting that we live in a world where so many adults are quick to jump on the hate train and call teen girls and very, very young women every nasty word in the book. I cannot physically roll my eyes hard enough at this stuff, but all this foolish talk of sluttiness did get me to thinking about the policy rationale behind anti-prostitution laws.
To me, anti-prostitution laws are problematic and a bit unsettling because they disregard the individual sex worker’s choices, experiences and justifications and rest on the faulty premise that all sex work is a type of self-inflicted abuse requiring government intervention. I generally dislike legislation designed to protect adults from themselves, but I find laws governing commercial sex particularly questionable to the extent that they assume that any act that compromises an adult woman’s sexual purity is inherently harmful to her.
Criminalization of engaging in sex for a fee is also at odds with the stated policy narrative. It is often said that we have these laws because of the dangers associated with sex work. To be sure, many of those who engage in sex work are exploited or manipulated, and all or most are exposed to a high risk of violence and other bad stuff. Yet, if society views sex workers as victims who don’t understand their own oppression, then why treat them, in the criminal system, as deliberate transgressors? It doesn’t make sense.
I haven’t addressed male prostitutes in this post because, in my opinion, they are not stigmatized to the same degree as females who engage in such work. However, I do think that males who are prosecuted for patronizing prostitutes do suffer the very same type of stigmatization as female prostitutes as a result of the societal double standard of valuing male sexuality, or even promiscuity. Most of these guys did nothing more than upgrade from a good massage to a great massage from a rational, consenting adult. Who cares?
What are your thoughts on this issue? Let me know, feel free to disagree, and call me at (617) 336-7250.
Everyone knows that you’re not a real lawyer unless you relentlessly try to force and/or trick everyone into looking at your boring and uninspired blog and website. I, for one, am as real as they come. You can tell by the fact that I write this boring and uninspired blog.
Also by the fact I set up a Google+ account the other day.
I’ve been told that if you’re a lawyer, then you need to be on Google+ unless you’re actively trying to be poor and unsuccessful. I’m sure that this is true, but I still have some pretty major and definitely reasonable concerns. Like, how will anyone know that I’m a lawyer when I don’t even have a single picture of myself standing in front of a book case with my arms crossed looking serious yet approachable? Will people be able to see how often I look at poor Amanda Bynes’ sad Twitter posts and how much I YouTube watch the final rap battle in 8 Mile? What if I get drunk and post a Foxy Brown quote or tell the general public about how I’m kicking myself for not inventing Taco Bell’s Dorito taco shell, because I had that idea for years before it happened?
I don’t know. I’ve got the soul of an elderly Amish person and the phone of Zack Morris, so obviously this stuff scares me a little bit.
But, I always answer my Zack Morris phone. So give me a call at (617) 336-7250.
Whenever there is any kind of public outcry over a not guilty verdict, many are quick to criticize defense attorneys, attorneys who are just doing their jobs and what the constitution requires of them. I think that those who blame defense lawyers for being effective defense lawyers might be operating on a kind of juvenile understanding of “good” and “bad.”
When I was a little kid, I always thought that there were “good guys” and there were “bad guys.” Me and my friends, like lots of kids, played “cops and robbers” all the time. You were either the good-guy cop or the bad-guy robber, and you’d basically just run around yelling stuff like “Stop in the name of the law!” or “You can’t make me, ya pigs!”, depending upon which side you were on. I was always on the “robber” side in that game, which might have something to do with my life’s path so far.
As I started getting older, though, I realized that there are few truly “bad” people. And there are very few “good” people, too. Maturity teaches that the cops aren’t always the “good” guys, and the robbers aren’t always the “bad” guys. Good people do “bad” stuff, and bad people do “good” stuff. Really, all or most of us are just a mix of both “good” and “bad” and capable of doing both “good” and “bad.”
Criminal defense lawyers are not in the business of “bad people.” Defense lawyers are in the business of “people,” who, in this country, are entitled to constitutional safeguards.
And, I think we can all agree that our constitution is most definitely “good.” So give defense lawyers a break for doing their part in upholding it, will ya?
Call me at (617) 336-7250.
I’ve been a little reactionary in my posts about the Zimmerman case. Don’t lecture me. I know that lawyers are supposed to be purely reasonable and not passionate, as is said. However, I tend to disagree. I think that the best and strongest lawyers are the ones who, despite everyone in the world trying to beat it out of them, never lose passion.
In any event, I’ve been thinking about the role of publicity in these high-profile cases. Typically, lawyers view pre-trial and trial publicity as a bad thing. I’m not so sure that it is anymore, though, given the fact that most high –profile trials in recent years have resulted in acquittals. I wonder if George Zimmerman, Casey Anthony, O.J., and all the others would have been acquitted if they were just regular old unknown defendants.
I wonder if publicity increases the pressure on jurors to treat criminal defendants fairly and hold the government to its burden. Or if the publicity pressures defense lawyers to really bring it. Or makes the government feel nervous and uncomfortable. Maybe it has no effect at all.
What do you think? Call me at 617-336-7250, and let me know.