
Why the trial by ordeal was actually an effective test of guilt - blago
https://aeon.co/ideas/why-the-trial-by-ordeal-was-actually-an-effective-test-of-guilt
======
pwinnski
Inasmuch as this works, or _any_ justice system works, is as much as people
believe the system metes out justice.

In the USA, in 2017, people who knows they're guilty plead not guilty because
they have reason to believe that they'll be able to get away with something.
Either their entire crime, or at least the heaviest punishment for it.
Meanwhile, people who know they're not guilty frequently plead guilty (or more
accurately, take plea bargains) to avoid a slow and expensive justice system
they don't perceive as an instrument of true justice.

Even in the system described in the article, it seems one third of people
claimed innocence and yet were found guilty by the priests. My cynical thought
is that they didn't pay the priest, or weren't regular churchgoers, or were
"outsiders" to the community, and so justice didn't work for them.

~~~
speedplane
> In the USA, in 2017, people who knows they're guilty plead not guilty
> because they have reason to believe that they'll be able to get away with
> something.

I don't have a problem with this. Allowing a defendant to plead not guilty
puts the onus on the system to make its case. The purpose of the justice
system is not only to determine innocence and guilt, it's also to show that
there is a fair and transparent process to get to that result. The procedure
is often as important as the substance.

> people who know they're not guilty frequently plead guilty

Not sure how often this occurs, but this is definitely bad.

~~~
ImSkeptical
The vast majority of criminal cases end with people pleading guilty rather
than going to trial. This US government page [1] says 90% but I've heard even
higher figures from lawyers and other sources.

Now, perhaps the police are very good at their jobs and really do get the
right guy 90+ of the time (everyone who pleads guilty plus everyone convicted
at trial - approximately 60% of cases that go to trial [2]). Or, perhaps the
court system has a bias towards finding people guilty.

One data point that argues for the latter possibility is that people defended
by public defenders are significantly more likely to go to jail than people
with a private lawyer. People with a public defender go to jail 88% of the
time compared to ~75% for people with a private attorney [3]. To me, the
implication is that the skill of your lawyer, and the time your lawyer will
spend on your case, has a huge influence on your likelihood of getting
convicted. That influence implies to me that the police probably aren't 96+%
accurate in getting their man, and that therefore some of the people pleading
guilty are doing so to avoid a false conviction.

If you look into this, you'll find prosecutors threaten defendants with harsh
punishments as a tactic to get them to plead to vastly reduced sentences -
e.g. "Take your chance at trial, kid, you'll do ten years for possession with
intent to distribute. Or, plead guilty, do six months with two years
probation." Prosecutors are incentivized to make these deals because they are
evaluated, in part, by conviction rate.

1-[http://www.uscourts.gov/about-federal-courts/types-
cases/cri...](http://www.uscourts.gov/about-federal-courts/types-
cases/criminal-cases)

2 -
[http://www.justice.gov/usao/reading_room/reports/asr2012/12s...](http://www.justice.gov/usao/reading_room/reports/asr2012/12statrpt.pdf)
page 14

3 -
[http://www.pbs.org/kqed/presumedguilty/3.2.1.html](http://www.pbs.org/kqed/presumedguilty/3.2.1.html)

~~~
rayiner
It’s not so much that the police are so good at their jobs but that they focus
on easy cases, either through sting operations or possession crimes. It might
be hard to prove that a gang member committed a particular robbery, but if you
found him with a gun when you went to serve your arrest warrant (this happens
all the time), then it’s a slam dunk to charge him with the robbery and felon-
in-possession. The average sentence on the FIP is like six years, probably
more than the robbery

As to people with lawyers having better success: people who can afford lawyers
tend not to commit crimes that are easy to prove. They’ll disproportionately
be charged with white collar crimes, where the difference between legal and
illegal conduct often could be what the accused was thinking when he took a
certain action.

~~~
sillysaurus3
Thoughts on
[https://www.youtube.com/watch?v=USkEzLuzmZ4](https://www.youtube.com/watch?v=USkEzLuzmZ4)?

You've argued over the years that the justice system is in fact a justice
system, not merely a legal system. In other words, you believe it's mostly
fair.

I feel like I'm probably misrepresenting your position. But the overall point
is that many of your comments carry a tone of "Well, there's a logical basis
for why the courts work this way."

I've been trying to square your experience with anecdotal evidence, which
seems to universally agree that the system is stacked against you. Those who
go to court with a public defender are doomed.

In case you happen to enjoy that video, there's another on bail:
[https://www.youtube.com/watch?v=IS5mwymTIJU](https://www.youtube.com/watch?v=IS5mwymTIJU)

One of my worst fears is being accused of some kind of crime, like cybercrime
or anything else. I've seen how HN and Reddit treat the accused. I've done it
myself: I know that the point of an indictment is to indict someone, yet when
I read FBI testimony stating that the founder of Silk Road hired hitmen, I
start to feel differently about him.

[https://news.ycombinator.com/item?id=15414170](https://news.ycombinator.com/item?id=15414170)

As cheesy as it sounds, I care about being honorable. I'd never engage in
ransomware or embezzlement or anything else, let alone hurt anybody. But I
know that if someone were to accuse me of those things, people would
automatically think less of me, regardless of whether I did it or not. And
that's why it's terrifying. Especially for those without money.

So I thought I'd ask you to please justify this system. Fundamentally,
morally: is it sound?

The fact that 95% of cases end in plea deals, and that N% of that subset
didn't commit any crimes -- should we feel ok with that? Yet on the flipside,
it _seems_ to work, and we seem to live in a pretty decent and free society.
I'm not sure how much or little we should credit the courts for that.

The reason I'm asking you in particular is because you're one of a few people
on HN with enough experience to give a thoughtful answer. You've been involved
with it, and you know the territory.

~~~
rayiner
> You've argued over the years that the justice system is in fact a justice
> system, not merely a legal system. In other words, you believe it's mostly
> fair.

To the contrary, I think it's incredibly unfair. But probably for different
reasons than you do. For example, thousands of people every year are sentenced
to an average of over six years in prison for possessing a firearm as a felon.
It's "fair" in the sense that the error rate for those convictions is almost
certainly negligible, because proof only requires showing possession and a
fact that's a matter of public record. But in my opinion the crime and the
sentence are unfair: we shouldn't take away the rights of people who have
served their time, and six years is a sentence more appropriate for murder
than possession of anything.

I think the under-funding of public defenders is a travesty. But most public
defenders will admit that most of their clients are guilty, and they spend
most of their time ensuring their clients plead to the right charges and get a
fair shake at sentencing. It's "fair" in the sense that the system mostly
convicts the right people (except at the margins, which is why public
defenders should get more funding) but it's "unfair" in the sense that
sentences are too long and many of these crimes shouldn't be crimes.

> One of my worst fears is being accused of some kind of crime, like
> cybercrime or anything else.

You should be afraid! Take, for example, 18 U.S.C. 1001, which makes almost
any sort of false statement vaguely related to the federal government a
felony. It's "fair" in the sense that there is almost never any doubt that the
accused made the false statement in question (either in a recorded interview
with an FBI agent, or in in writing in some official paperwork). But it's
"unfair" in that it's often used to trap (or, more often, threaten) people who
only did something marginally wrong. _E.g._ lying to a federal agent to
conceal a workplace affair.

> Yet on the flipside, it seems to work, and we seem to live in a pretty
> decent and free society. I'm not sure how much or little we should credit
> the courts for that.

That's a really fundamental question. I think the way to look at it is to look
at what happens in places without enforcement of certain kinds of conduct.
_E.g._ sex crimes in rural India or Pakistan. Why do victims plead for
enforcement of the laws on the books in such situations? Partly retribution.
Probably not really deterrence--even with enforcement, the odds of getting
caught are so low that there can't be much of a real deterrent effect. The
biggest value of punishing crimes is, in my opinion, creating social norms.
The overwhelming majority of people aren't "good" or "bad," but they will
readily follow social norms that are visibly enforced. The primary benefit of
putting people in prison for robbery thus is showing everyone that it's
conduct that is so unacceptable that we put people in prison for it.

~~~
AnthonyMouse
> The primary benefit of putting people in prison for robbery thus is showing
> everyone that it's conduct that is so unacceptable that we put people in
> prison for it.

Sure, but nobody is proposing repeal of the law against robbery.

And when you look at something like felon in possession of a weapon, the same
argument doesn't apply. Felons mostly acquire weapons for self defense like
anybody else. Even most felons aren't murderers. And felons have more enemies
than most -- former rivals, compatriots who may think you ratted them out, or
prosecutors _told them_ you ratted them out whether you did or not.

When the choice is a 5% chance of going back to prison for having a weapon or
a 70% chance of getting beat down for not having one, so many people break the
law that no social norm can be established.

So the only effect of laws like that is to make things too easy for
prosecutors. Round up some ex-convicts at random and you can throw half of
them back in prison for years without ever showing that they harmed anyone.

At best prosecutors are only doing this to "bad people" for some entirely
subjective definition of bad, but we all know this is exactly the sort of
thing that leads to selective prosecution of minorities and dissidents.

The question is how to get rid of laws like that when they have bipartisan
support. Republicans like to be "tough on crime" and Democrats like anything
that smells like gun control.

~~~
speedplane
> the only effect of laws like that is to make things too easy for prosecutors

No question that judicial and prosecutor efficiency are important factors in
deciding to prosecute, but they are not the only ones. Prosecutors often take
on difficult cases when there is strong political support for it.

For example, after years of dragging their feet, NYC prosecutors tried to
convict someone (anyone) involved in the 2008 financial crisis. They got a few
people on the sides, but their effort was mostly seen as a failure. Still, it
was probably better that they tried and failed rather than not tried at all.

Another example is the war on drugs in the 1990s. As far as efficiency and
resources, it was a horrible program, not easy or efficient by any measure,
but the country was terrified of drug use and it's related crime. The goal was
based more in societal norms than efficiency.

Last example, Mayor Guiliani's tactics of removing small crimes (illegal
street vendors, minor trespassing, graffiti) was based in the theory that you
can improve entire neighborhoods and reduce major crimes by eliminating the
smaller ones. Again, unclear if this tactic really worked, but it's clear that
his aim was not purely judicial efficiency, it was economic development.

These cases were not efficient at all, but there was strong demand to

------
tonyg
A light-hearted post about a completely evil method of "correctly" finding
fact. A whisker away from apologetics for torture.

The final paragraph is particularly bonkers:

> "In practice, it might not have mattered whether ordeals were truly God’s
> judgments or instead the judgments of clever legal systems that leveraged
> criminal defendants’ incentives to correctly find fact. For, in either case,
> the result was the same: improved criminal justice, thanks to God."

It's a facile analysis indeed that posits that this setup is either "clever",
might "correctly find fact", or might lead to "improved criminal justice".

~~~
dm319
Yes, it's a strange article in that on the face of it they take a
philosophical, almost game-theory approach to how it works (with some pretty
big assumptions of course), but at times it ventures into the medieval belief
system itself.

> The only ones who know for sure whether a defendant is guilty or innocent
> are the defendant himself and God above

Maybe it is carefully written so that the writer can get across an interesting
anecdote, while not upsetting the 60% of people that pray daily in Virginia.

~~~
Cthulhu_
No, it's written like that because belief in God is paramount to how this
system works; especially back then, defendants might've not be afraid of the
criminal justice system per se, but God, hoo boy don't want to piss that guy
off.

I mean the basic premise of trial by ordeal is "Hey, we dunno if you did it or
not, and we can't trust your word for it, let's ask God, and let Him burn the
shit out of your hand if you're lying". Pain + religious fears.

------
gerbilly
What silly logic.

Why assume that the people or the priests in medieval times 'believed' with
any less doubt than we have today?

Humans haven't gotten any smarter since then.

If the ordeal 'proved' the defendant guilty, all it would take is for one
person to know for a fact that a defendant was not guilty to create doubt in
the system.

Iterate this a few times and the absolute belief required for this approach to
work would quickly disintegrate across the whole village.

The whole system of ordeals seems like a charade to legitimize what amounted
to arbitrary judgments in light of insufficient evidence.

Kind of like the system we have today, come to think of it.

------
sandworm101
"A few days later, the defendant’s hand was inspected: if it was burned, he
was guilty; if not, he was innocent."

No. That isn't how it worked. The miracle was not that the hand was not burnt.
It always burned. God's intervention was measured upon whether or not the hand
was healing. If it was infected then god was not with you (and there was a
good chance you would die). If the wound/burn was healing nicely then god was
with you.

They did not expect miracles so dramatic as a hand not being burnt. To think
that they did suggests that everyone was found guilty. They were not. The OP
also suggests that ordeals were rigged. Some certainly were but people in the
past weren't idiots. They knew what boiling water or red-hot iron looked like,
fat better than we do today. They could spot a trick.

Trial by ordeal was not some scam or legal trick. People actually believed in
the process took it very seriously. And we see remnants of it today. Many
still believe that sickness and recovery from wounds involves "faith" and
regularly pray for healing. Others believe that sickness is the result of
God's displeasure, evidence of sin. Trial by ordeal is alive and well.

~~~
fjsolwmv
I wouldn't argue too much from modern religious thoughrt. Much of modern
religion is obvious jokes and scams and become "divine truth" via the passage
of time. See Scientology and Mormonism for the newest examples, and realize
that Islam and Christianity were not so different.

------
grondilu
> How could an ordeal-administering priest make boiling water innocuous to an
> innocent defendant’s flesh? By making sure that it wasn’t actually boiling.

I had no idea that this kind of things was actually staged. Should I
understand that even the priests did not actually believe in God's influence
in this, and that instead they used the whole thing as a psychological trick?

If so, that says a lot about religion in general.

~~~
ManlyBread
It's not that they didn't believe, it's more likely that they believed that
God has no obligation to actually participate in such a trail and went with a
more controlled solution instead.

~~~
fjsolwmv
Yes , with religion there's always another epicycle or turtle to explain away
the inconsistent logic.

~~~
twodave
Wait, what? Assuming he exists (because otherwise the point is moot), are you
saying that this God who created the UNIVERSE should be obligated to ask, "How
high?" when we ask him to jump? Hinging one's belief (or disbelief) the
existence of God on whether he is compliant with our wishes is foolishness;
the mistake made by the priests here was NOT that they trusted in God (a
neutral act in this example), but rather that they placed expectations of
civil/criminal justice on a God who had promised them no such involvement in
society. He didn't even provide this to the Israelites, with whom he had a
much more intimate covenant. Instead, there were the judges/prophets/kings who
administered justice.

What is more interesting to me is how these ordeals seem to (poorly) parallel
the cut-the-baby-in-half sort of justice King Solomon was recorded to have
administered. Except in his case it was obvious soon after that he never
intended to carry out the sentence.

------
DubiousPusher
Cool. By this article's own logic, only 33% of innocent people tried were
wrongly convicted. What a great system.

~~~
squeaky-clean
I would have assumed around 99%. At least it's much better than that.

~~~
Bartweiss
Me too, which is why I'm a bit surprised at all the negativity towards this
article.

Sure, it's sort of 'defending' trial by ordeal, but it's not new that this
practice was real and terrible. What's novel to me is that it wasn't just a
way to automatically convict every suspect; a 2/3 acquittal rate is vastly
higher than I would have guessed.

~~~
squeaky-clean
Yeah, I really enjoyed this article too! Trial by ordeal has always confused
me for that reason, obviously 100% of people holding burning iron will get
burnt hands, wouldn't they find it fishy if 100% of the people undergoing
trial end up guilty? And this gives a really sensible explanation for that.

------
quickthrower2
I think this is meant to be taken with a pinch of salt!

I'll bite though:

What if a person is technically guilty but they have convinced themselves that
they are not? Be it ignorance of the law, or just arrogance? They'll get let
off.

Conversely what if someone who is easily brainwashed has been convinced they
are guilty and given false memories?

However, the effect mentioned does play in modern life:

* People who did park illegally won't bother to contest their parking ticket. * People who get sued for doing something wrong would settle if they actually did (although a lot of people will settle due to the cost of fighting, so it isn't perfect?)

~~~
coldtea
> _What if a person is technically guilty but they have convinced themselves
> that they are not? Be it ignorance of the law, or just arrogance? They 'll
> get let off. Conversely what if someone who is easily brainwashed has been
> convinced they are guilty and given false memories?_

Then some outlier cases will not be punished.

------
silveira
I disagree with effectiveness of the trial by ordeal as it relies entirely in
the priest integrity and ability to determine if defendant is guilty or not,
which sometimes may not be feasible.

But it was an interesting article. If you liked it, you may like this one
which changed my view on how justice works in US, "Why Innocent People Plead
Guilty" by Jed S. Rakoff [http://www.nybooks.com/articles/2014/11/20/why-
innocent-peop...](http://www.nybooks.com/articles/2014/11/20/why-innocent-
people-plead-guilty/)

------
dogruck

      born into this
      into hospitals which are so expensive that it’s cheaper to die
      into lawyers who charge so much it’s cheaper to plead guilty
      into a country where the jails are full and the madhouses closed
      into a place where the masses elevate fools into rich heroes
    

[http://www.adrianaparcero.com/bukowski/ab_poems01.html](http://www.adrianaparcero.com/bukowski/ab_poems01.html)

------
protoster
Doesn't that mean that the priest doesn't trust god if he has to rig the
ordeal himself?

~~~
ralmeida
The priests might have convinced themselves that the 'holes' in the system
were the _wordly vehicle_ through which God would show his will. Which, by the
author's logic, is actually the point.

~~~
Bartweiss
In particular, it stands out that the cauldron is removed from the fire and
_then_ the priest prays over it.

That's going to improve everyone's chances of acquittal, and even if it was
manipulated it doesn't take any conscious fraud. You want a good judgement,
you believe your prayers are a factor in that, and perhaps if you're biased
it's simply by praying longer for those you believe innocent.

I'm sure some priests did rig trials intentionally, but there's plenty of room
produce a result like this out of piety.

------
dmichulke
Disadvantage: Justice through obscurity

It only works as long as no criminal knows how it works.

Kerckhoffs would have frowned upon such a system.

------
borvo
The priest's friends and whoever paid the bribes would be found not guilty.
Pretty lucrative job, being a priest and administering god's justice. The 1/3
didn't pay, or the priest didn't like them.

------
rpenm
I'm sure that the priests didn't allow their complete control of an opaque
judicial process to be affected by their biases. There's no way that their
social, economic or political interests could possibly affect the outcome.

Doesn't this system fail when priests believe in miracles? Or when the guilty
believe God will spare them? Or when the innocent don't believe in miracles?
Or when a guilty nonbeliever considers the same game theory? Or when the
accused isn't some homo economicus rational agent? These are hardly edge
cases.

------
Clubber
This is the same trick lie detector tests use. They don't actually work, but
it tricks the defendant into confessing because it believes the machine is
infallible, just like God in the medieval period.

------
SeanDav
In summary: Get on the Priest's good side, as he was pretty much judge, jury
and executioner.

------
trhway
so basically church hijacked justice system as a propaganda vehicle allowing
to show off god-in-action - with impressive "miracles" for the "innocents" and
with god-blessed-and-willed torture for the "guilty".

------
smegel
> or has he been charged guilty by an overzealous prosecutor?

Isn't that the point of a prosecutor?

~~~
tialaramex
No?

In a sensible criminal system the prosecutor, just like the judge is there to
ensure justice. It's an asymmetric system, the defence represent an individual
but everybody else represents society's interest in justice.

In England for example the prosecutors work for the Crown and make their
decision based on the "Full Code Test" which says they shouldn't prosecute
unless a bunch of constraints are true, including:

They are convinced the subject is guilty They expect to secure a conviction at
trial, meaning they can prove the accusation to the satisfaction of judge and
where appropriate jury. The prosecution serves a legitimate public interest
The subject hasn't already suffered equivalent or greater consequences for
their actions than could be inflicted as punishment for the crime.

~~~
smegel
> It's an asymmetric system

I thought it was an adversarial system and the judge was the umpire.

> They are convinced the subject is guilty

Is they believed that why _wouldn 't_ they "charge guilty" the accused? Or am
I misunderstanding what "been charged guilty by an overzealous prosecutor"
means?

~~~
TheCoelacanth
The prosecutor's job is to represent the best interests of the state, not to
get the most and harshest possible convictions. It's not like a sport where
whatever is bad for one side is automatically good for the other side. It is
like any other legal proceeding: the two parties interests are opposed in some
areas and aligned in other areas.

------
emanreus
Is this some kind of satire?

------
horsecaptin
This makes me think that the Salem witch trials were carried out on women who
refused to sleep with the priest. Power corrupts. Absolute power corrupts
absolutely.

~~~
blackbagboys
The Salem witch trials were carried out by secular authorities. There were
also no catholic priests in the Massachusetts bay colony at that time.

~~~
fjsolwmv
"priests" is wrong, but the core rest of the comment applies.

