The ghosts of Salem: Shadows of injustice in modern administrative agency hearings

October 25, 2023 | By DANIEL WOISLAW
Salem Witch Trials

The Salem Witch Trials stand as a chilling reminder of the dark corners of humanity’s pursuit of justice. In the heart of that 17th-century hysteria, the Court of Oyer and Terminer became infamous for accusing and convicting “witches” based on flimsy evidence, hearsay, and an inverted burden of proof. Shockingly, echoes of these past injustices reverberate in today’s administrative agency hearings, where fundamental rights are often curtailed, and fairness remains an elusive ideal.

Limiting the Right to Discover Evidence

An important aspect of any legal proceeding is the ability to discover evidence, both beneficial to one’s case and detrimental to the other side. Typically, this is accomplished by depositions; formal, written questions; and subpoenas for documents. Yet administrative agency hearings today often restrict this process. The federal Consumer Product Safety Commission (CPSC), for example, does not allow depositions or subpoenas for documents as a matter of right. Instead, a person accused of making a dangerous product must hope the commission—its accuser—grants their request. The imbalance in access to evidence undermines fair adjudication and perpetuates a system where truth is sacrificed for expediency. The Environmental Protection Agency likewise limits the right to discover evidence by requiring parties to request the administrative agency’s permission to acquire any information beyond a list of witnesses and exhibits expected to be presented at the hearing.

Agencies’ denial of the basic practice to discover evidence is reminiscent of the Court of Oyer and Terminer’s policies during the Salem Witch Trials, where the accused were denied access to question and review their accusers’ allegations before trial. Indeed, there was no right in these proceedings for those suspected of witchcraft even to cross-examine the witnesses who signed the accusatory statements that were often admitted in evidence against them.

One fine example comes from the case against my many-times great ancestor John Alden, who was accused by written accusation of pinching someone while standing a great physical distance from them, the assumption being plain that he could not have accomplished the pinching except by witchcraft. Knowing he would not get a fair trial, he fled, returning only after the tumult of the witch trials had passed and his case was dropped. Others were not so fortunate, with their proceedings marred by reliance on out-of-court statements they were powerless to challenge and an assumption that those accusations proved witchcraft.

Reliance on Hearsay

The use of hearsay as evidence plagued the Salem Witch Trials, tainting the proceedings with unreliable information. Astonishingly, contemporary administrative agency hearings employ a similar tactic. The CPSC, mentioned earlier, even states that administrative law judges may dispense with the federal rules of evidence as they please—rules designed to ensure that the evidence a court receives is reliable by excluding hearsay and requiring authentication of documents, just to name a couple of their important fixtures.

Inverted Burden of Proof

The inverted burden of proof, a hallmark of the Salem trials, where the accused were presumed guilty until proven innocent, haunts modern administrative agency hearings as well. In agency proceedings, the burden often rests on the accused, forcing them to prove their innocence rather than requiring the prosecution to establish guilt. This inversion of justice echoes the burden-of-proof framework employed by the Court of Oyer and Terminer in Salem.

Many administrative agency adjudications begin by placing the burden of proof on a person who merely seeks to enjoy some liberty interest already protected by the Constitution—for example, building a family home on their land, engaging in free speech, or marketing a new product. By requiring a person to prove that their land isn’t a federally protected wetland, that their speech isn’t dangerous, or that their new product is safe, agencies flip the burden of proof by assuming—before an adjudication has even begun—that a person should not be allowed to develop their own property, exercise their liberty, or freely associate with others.

In this way, modern hearings conducted by administrative agencies share in the legacy of the Salem Witch Trials, which presumed the guilt of those accused, placing on them the burden to establish their innocence. While modern agency hearings don’t today result in the deaths of the accused, they do often give the state’s imprimatur to crushing fines and fees and can even establish evidence to be used in a criminal prosecution that can lead to imprisonment.

Refusal to Consider Constitutional Challenges

As a trial lawyer, I once had a judge refer to my client’s right to challenge evidence that was obtained illegally against his Fourth Amendment rights as “a technicality.” I still recall my rejoinder: “What you refer to as a ‘technicality,’ I call a constitutional right.” Fortunately, the court did entertain my motion to exclude the evidence—and the judge granted it. Truthfully, there are few other mechanisms to prevent invasions of privacy and property that the Fourth Amendment prohibits other than motions to exclude.

Litigants in many administrative hearings are not so lucky. Challenges to the hearing itself, to the evidence presented, or to the law being enforced against them often fall not only on deaf ears but on a “court” that has no power to consider constitutional arguments.

The right to challenge the constitutionality of proceedings is an important safeguard against injustice. The denial of this right adds to the costs of litigation, where constitutional claims must be addressed by federal or state courts on appeal from administrative decisions, to which courts often defer.

The echoes of the Salem Witch Trials in modern administrative agency hearings serve as a stark warning. We must heed the lessons of history and demand a system where due process is not merely a normative idea but an enforceable requirement of every legal proceeding. Transparency, fairness, and an unwavering commitment to justice must guide our administrative processes. It is time to exorcise the ghosts of Salem from our legal system, ensuring that the mistakes of the past remain where they belong—in history books, not in our courtrooms or their administrative facsimiles. Only then can we truly claim that justice is blind and that the spirit of fairness prevails over the ghosts of long-past witch hunts.