My fascination with Chief Judge Bouget in his The Manner of Procedure of a Judge in a Case of Witchcraft continues. There is much discussion on the use of torture; when it is appropriate and when not. In the case of common rumour, Judge Bouget believes that an additional indication of witchcraft must be present before common rumour would be sufficient grounds to torture the suspect. The good judge did not particularize these indications apparently determining, as we say today, the matter must be decided on a case-by-case basis. Common rumour continues today in our use of opinion and reputation evidence as found in Rule 5.608 of the Iowa Rules of Evidence. Another example of the law's strict adherence to traditional practices and methods.
The problem, as Judge Bouget specifically states, is that proof is so difficult in cases of witchcraft, due I suppose to the craftiness of witches. And since proof is difficult, confessions are very useful often being the only substantial proof available in cases of witchcraft; and the most effective method of obtaining a confession, is torture. Here we have another long and verifiable tradition in law that knows no jurisdictional boundaries-the establishment of guilt by confession. As all practicing criminal defense lawyers know, today, in our own time, the vast majority of criminal cases are resolved through the confession of the defendant. In 1619 the order of events were as follows: first we have common rumour, then we have torture and a confession, then the trial, lastly the punishment which for many is burning alive.
A good reputation appears to be considerably convenient in a charge of witchcraft or any of the more modern crimes introduced from time to time by our legislatures. A bad reputation brings the attention of the authorities-the eye of the law is on you. Law enforcement personnel will know the car you drive, will know where you live, will know the incidence of short-term visitors at your residence, will generate trash-rips to check your garbage, in other words; keep you under surveillance. Sooner or later the person being watched, because of his bad reputation, will commit any one or more of the thousands of crimes now in existence, be hauled to jail, and taken before the court for punishment. In all likelihood the defendant will have confessed. Physical torture, not being commonly accepted nowadays, we set a bond which can not be meant. The defendant loses his job, his dog or cat starves to death, his landlord does not get his rent, his electricity is shut off, his wife and children have no money for food, he has no access to his disability check, he can't pay his cell phone bill, his associates take all his property. The only method by which the defendant may escape these inconveniences is to plead guilty, received probation or time served, and get out of jail. The authorities have prevailed once again.