Wednesday, April 24, 2019

Holloway on Testimonial Incapacity and Criminal Defendants in the South

We typically don’t post on articles and essays that are inaccessible online, but social histories of evidence law don’t come along every day.  This one is Pippa Holloway, "Testimonial Incapacity and Criminal Defendants in the South," in Crime and Punishment in the Jim Crow South, ed. Natalie Ring and Amy Wood (University of Illinois Press, 2019), 107-129:
This article examines the history of two limitations on witness capacity in the US: prohibitions on court testimony by individuals with infamous or felony convictions and prohibitions on testimony by criminal defendants. Most states had eliminated these laws by the 1880s, but change took a regional pattern. Southern states were more likely than non-southern states to continue prohibitions on testimony by defendants and/or those with former convictions into the late nineteenth and, in some cases, twentieth century. During the 1880s, when most states were expanding access to witness testimony, Alabama, Arkansas and South Carolina narrowed it by barring witness testimony by individuals convicted of misdemeanor larceny. Tennessee prohibited individuals with infamous convictions from testifying in civil cases until 1953, a prohibition that also included misdemeanor larceny. The article begins with the case of a Tennessee coal miner who was denied workers compensation in 1941 because he could not testify to his injury due to a prior misdemeanor larceny conviction. Georgia's prohibition on defendant testimony stayed on the books until 1961 when the US Supreme Court struck it down in Ferguson v. State of Georgia. This chapter documents and offers an explanation for this instance of southern exceptionalism, arguing that it was rooted in the desire to deny legal and civil equality to African Americans that characterized the Jim Crow era.

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