It’s always interesting when thought streams from different parts of life intersect.
At the moment, I’m teaching the General Education/Core Curriculum/whatever-your-school-calls-those-classes-everyone-needs-to-take-some-of course on the history of the whole world from the mists of time to 1500. The primary sources I’ve chosen for that course include documents on medieval European laws and court cases, which led me to wonder when and how things changed, when did the basic principles I recognize as the American legal system start to be practiced? This led me a barrister by the name of William Garrow, who was a transformative figure (or so my sources tell me, I’m hardly an expert) in the English legal system in the 1880s and 90s (after which he was first promoted to King’s Council and then demoted to a mere Member of Parliament before eventually wasting his final decades in such worthless occupations as judge, Solicitor General and Privy Councilor). Before Garrow, the courts relied on the testimony of witnesses to a crime. The prosecutor found the witnesses, the judge asked the questions, the jury evaluated the evidence, and the defense attorney … well, there usually wasn’t one and the defendant wasn’t generally allowed to speak on his or her own behalf. It all came down to the witnesses, who were not cross-examined! Garrow changed all that. By appearing in court for the defendants and asking the witnesses questions, he is credited (by my sources) with playing a key role in the innovations of the adversarial system, rules of evidence, and the invalidation of hearsay evidence, in addition to personally introducing both the concept and the phrase, “innocent until proven guilty”.
Garrow’s biographers, John Hostettler and Richard Braby, in Sir William Garrow: His Life, Times and Fight for Justice, picked a particular cross-examination from the Old Bailey records to demonstrate how it was done. In this case, Garrow had already gotten the witness, a Mr. Fleming, to admit to being the receiver of the goods that the defendant was accused of stealing. He had further gotten Fleming to admit that he was likely to be hanged for possession of stolen goods unless he could fix possession on another person. Garrow then went in for the kill:
Garrow: Did you not do this to save your own neck; did you not make the disclosure to save your own life?
Fleming: I suppose I must answer, Mr. Garrow, in the affirmative, for I know no better: I certainly made this disclosure to save myself.
Garrow: Then you are now swearing, in order to fix this danger on somebody else to save yourself.
Fleming: I apprehend, Mr. Garrow, I am still in the same danger if I do not fix on the right person.
Notice that, in his last answer, Fleming argued that it would go badly for him if he made a false accusation. The jury didn’t care. They were horrified at the idea that they were expected to accept the testimony of someone who had such a direct interest in a conviction, and on that basis alone, acquitted the defendant. It became, over time, an accepted tenet of the English legal system that interested witnesses were not reliable.
I mulled that over for a few days, trying to figure out why it felt somehow off. Oversimplified. Naïve, even. Too likely to excuse real criminals who posed serious dangers to society. Was it the jury’s refusal to consider the witnesses final statement?
Meanwhile, another stream of my life, starting in a completely different place, was heading right for that very point. I recently got back in contact with a woman I’ve known since I was born, as far as I can tell. Our parents were friends and the families got together several times a year, but as we grew up, as so often happens, we drifted off in different directions. Reconnecting with her got me thinking about all the other people I’d known that way, and wondering where they are today. The great gift of Google came through, and I found one. She’s now called Alexandra Natapoff, but I’m pretty darned sure she’s the kid I used to know as Sasha. She was a few years younger than me, and I don’t remember her all that well, but I remember her mother, and this Alexandra looks, sounds, and moves exactly the way her mother did back when we were kids. How do I know that? Because I found this video. Which, in an astonishing coincidence, addressed my question about Garrow and the testimony of Mr. Fleming:
We think of our legal system as inherited from the English system, based on the same principles and precedents of common law. And yet, somewhere in the late 1700s, they diverged. Given that we were fighting a war of independence from England at the time, it’s understandable that our legal experts might not have been studying their latest innovations. And yet, we did pick up the notions of the adversarial system, presumption of innocence, etc. But we somehow didn’t adopt the inherent distrust of the snitch.*
Natapoff makes the point, rather effectively I think, that our reliance on snitches in the legal system has in recent years expanded to reliance on snitches in the wider, American society. We are socializing ourselves, myself obviously included (hence the mulling), to accept snitching as part of the normal practice of citizenship. This can be a very good thing. The anonymous bar employee who paid attention to a semi-drunk man’s ravings, got his license plate number off his car and called the police saved the lives of hundreds of innocent people. Less risky, perhaps, but just as important and valuable a protection of lives as the airplane passengers who jumped on the man trying to light his shoe on fire. I applaud anonymous bar employee’s snitchy ways. Hell, snitching is not only a civic duty, in this age of terrorism, both homegrown and imported, snitching is an act of patriotism!
Which is all well and good from a law enforcement perspective, but as national identities go, “We are the Snitches” isn’t exactly “Give me liberty or give me death.” It doesn’t have the same ring, the same nobility, the same élan. More importantly, snitching by its nature divides us, turns us against each other. It makes us, not a nation united in common cause (freedom, the common welfare, life, liberty and the pursuit of happiness), but individuals perpetually suspicious of our neighbors and distrusting of difference instead of celebrating the melting pot. As national values go, it is fundamentally destructive. Is this the America we want to be? And what, if any, role does this valorization of snitching play in the atmosphere of distrust and anger in America today.
* I’m only addressing snitching, which is the act of informing on an individual, not whistleblowing, which is exposing wrongdoing by an organization.