a career in the criminal courtroom, even as it gave the device free rein outside the formal procedures of the law.
The justice system has long wrestled with methods for gauging honesty. Criminal activity, almost by definition, cloaks itself in just the sort of falsehood society wishes to uncover. There have been three major phases in the development of such tests in the European west, each with its preferred methods of extracting the truth from recalcitrant human beings—and each increasingly in tune with prevailing assumptions about how to extract the truth from inanimate nature. Proponents of lie detection hoped to introduce a fourth and final phase in the administration of justice in which the methods for humans and inanimate nature would finally converge.
In the first phase, the medieval trial by ordeal, the community obliged the accused to confront a physical challenge so that God might judge the outcome. Sometimes this ordeal involved mortal combat. At other times, the faith of the accused was tested by an act of endurance. For instance, presumed liars were asked to lick a burning hot poker; if God wanted to commend their honesty, their tongues would not be scorched.
The second phase, which lasted from the twelfth to the eighteenth century, came in two distinct forms, one on the European continent, the other in England. Though the continental system of inquisitorial justice would be later denounced as cruel and unusual (see the Fifth and Eighth Amendments to the U.S. Constitution), it actually operated according to its own impeccable logic. The goal of inquisitorial justice was certainty of judgment—that, and the reintegration of the guilty into the kingdom of the saved. In an age when almost all crimes were punished by death, no Christian magistrate dared substitute earthly judgment for God’s say-so, at least not without proof "as clear as the sun at noon." Hence, the judge calculated guilt according to an arithmetic rule. The sworn testimony of one reliable eyewitness constituted a half proof; that of two independent eyewitnesses constituted a full proof. Unfortunately, as few crimes were witnessed by even one person, let alone two people, magistrates were authorized to torture the accused—confession being considered the "queen of proof."
In theory, judicial torture was justified to save the soul of the accused, lest the person die having violated a sacred oath of innocence and suffer the far greater torments of hell. It was also thought to be conducive to truth-telling. Early modern jurists believed that the truth was less a production of the will than a spontaneous utterance, and hence that bodily pain, by crushing the will, would release the truth, much as the pain of childbirth would induce an unmarried woman to honestly name her infant’s father. Yet the jurists also recognized what their Roman predecessors had long known: that many people resisted torture to the end, and that others, to end their agony, simply told interrogators whatever the authorities wanted to hear. For just these reasons the Roman jurist Ulpian was often quoted as saying that torture was "weak and dangerous, and inimical to the truth."
To mitigate against such deceptions, the jurists generally authorized torture only on the basis of circumstantial evidence of the sort we would consider sufficient to convict. Moreover, jurists introduced safeguards to ensure that torture was not abused. Examiners were forbidden to ask suggestive questions; the confessor had to supply corroborative information that only the guilty party could know; and the confessor had to repeat the confession after the torture had ceased. The torture itself was executed according to strict procedures. Judicial torture was not wanton sadism, but a formalized practice for obtaining the truth, one which matched the most up-to-date understanding of how to gain knowledge by putting nature "on the rack."
In England, by contrast, the common law actually retained
The justice system has long wrestled with methods for gauging honesty. Criminal activity, almost by definition, cloaks itself in just the sort of falsehood society wishes to uncover. There have been three major phases in the development of such tests in the European west, each with its preferred methods of extracting the truth from recalcitrant human beings—and each increasingly in tune with prevailing assumptions about how to extract the truth from inanimate nature. Proponents of lie detection hoped to introduce a fourth and final phase in the administration of justice in which the methods for humans and inanimate nature would finally converge.
In the first phase, the medieval trial by ordeal, the community obliged the accused to confront a physical challenge so that God might judge the outcome. Sometimes this ordeal involved mortal combat. At other times, the faith of the accused was tested by an act of endurance. For instance, presumed liars were asked to lick a burning hot poker; if God wanted to commend their honesty, their tongues would not be scorched.
The second phase, which lasted from the twelfth to the eighteenth century, came in two distinct forms, one on the European continent, the other in England. Though the continental system of inquisitorial justice would be later denounced as cruel and unusual (see the Fifth and Eighth Amendments to the U.S. Constitution), it actually operated according to its own impeccable logic. The goal of inquisitorial justice was certainty of judgment—that, and the reintegration of the guilty into the kingdom of the saved. In an age when almost all crimes were punished by death, no Christian magistrate dared substitute earthly judgment for God’s say-so, at least not without proof "as clear as the sun at noon." Hence, the judge calculated guilt according to an arithmetic rule. The sworn testimony of one reliable eyewitness constituted a half proof; that of two independent eyewitnesses constituted a full proof. Unfortunately, as few crimes were witnessed by even one person, let alone two people, magistrates were authorized to torture the accused—confession being considered the "queen of proof."
In theory, judicial torture was justified to save the soul of the accused, lest the person die having violated a sacred oath of innocence and suffer the far greater torments of hell. It was also thought to be conducive to truth-telling. Early modern jurists believed that the truth was less a production of the will than a spontaneous utterance, and hence that bodily pain, by crushing the will, would release the truth, much as the pain of childbirth would induce an unmarried woman to honestly name her infant’s father. Yet the jurists also recognized what their Roman predecessors had long known: that many people resisted torture to the end, and that others, to end their agony, simply told interrogators whatever the authorities wanted to hear. For just these reasons the Roman jurist Ulpian was often quoted as saying that torture was "weak and dangerous, and inimical to the truth."
To mitigate against such deceptions, the jurists generally authorized torture only on the basis of circumstantial evidence of the sort we would consider sufficient to convict. Moreover, jurists introduced safeguards to ensure that torture was not abused. Examiners were forbidden to ask suggestive questions; the confessor had to supply corroborative information that only the guilty party could know; and the confessor had to repeat the confession after the torture had ceased. The torture itself was executed according to strict procedures. Judicial torture was not wanton sadism, but a formalized practice for obtaining the truth, one which matched the most up-to-date understanding of how to gain knowledge by putting nature "on the rack."
In England, by contrast, the common law actually retained
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