Originally published in the July/August 2021 edition of Res Ipsa Loquitur
I recently read the book “John Adams Under Fire” which dealt with the courage it took to represent the soldiers accused of murder in the “Boston Massacre” of 1770. I think family lawyers, or any lawyers, not just criminal lawyers, will find this a fascinating look at history and jurisprudence in America. The authors, Dan Abrams and David Fisher detail the trial of both the Captain of the group, Thomas Preston, as well as the eight soldiers charged with the murders of five Boston townspeople. This incident was one of the sparks that started the Revolution. What lawyers especially will find interesting is the history of the law and procedure in American courts. We are vaguely taught in law school that our legal system comes from England, and that’s about it.
The book focuses on the transcript of the case. Interestingly, this case seems to be the first incidence of the use of a court reporter in the soon-to-be United States. The Scottish-born court reporter was John Hodgson, who took down his notes using the relatively new system of “short hand”.
An example of the legal history incorporated into the book, is that jury trials go back to the Normans and 13th Century England where the concept arose of a person accused, being judged by as many as 23 men (no women of course). Rather than the earlier method of “trial by ordeal” where a defendant was subjected to a grueling series of tests by fire, water, and duels, guilt was determined by whether the defendant died. God was assumed to be the judge, so if the individual lived, he must be innocent.
The book discusses the objections to the early idea of “hearsay”. In this case, one witness, a sailor named John Williams was called to repeat a story he’d been told by the local rope maker. The prosecution objected as to hearsay. At this point in history, the rules of evidence were still being formed. By the 1500’s, evidence via witness testimony was the primary evidence, and courts had begun limiting second hand “tales of a tale”. In the book it became obvious that Mr. Williams had no way of knowing the truth or falseness of the story, and the defense voluntarily acknowledged the improper nature of the evidence. The book later discusses the “dying declaration” exception to hearsay as well as self-defense and justifiable homicide.
I wholeheartedly recommend this book. You’re guaranteed to learn some U.S. history, and quite a bit of history of the law as well.
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