1. "Why Didn't Lizzie Testify?"
Posted by Kat on Jul-24th-02 at 7:21 AM

This may sound naive, but if Lizzie had testified in her own behalf at the trial, would the prosecution have been then allowed to give the jury her Inquest testimony?

And if she was innocent, wouldn't she, 10 months later and getting to be a *pro* at this paparazzie business, have been best qualified to EXPLAIN?

Aren't defendants that stand mute GUILTY?

I get the same feeling as you, Kat.  With all the trials that have televised, O.J. Simpson, David Westerfield, etc., these people are most definitely guilty, but, they do not testify at their own trials.  It worked for our Lizzie, it worked for O.J., maybe they are on to something. 

If Lizzie had been my client and messed things up as badly as she did at the inquest, she would never have taken the stand again.  I think it's usually a bad idea for a murder defendant to take the stand, and I don't necessarily think failure to do so reflects guilt.  A lot of people just don't acquit themselves (no pun intended) that well.  As to the question of whether her testifying at the trial would have opened up her inquest testimony to admission, I don't know.  I'm not a lawyer; I don't even play one on TV!  The basis on which it was originally thrown out was that Lizzie was under de facto arrest when she testified and hadn't been advised of her "Miranda" rights (which of course weren't called that in those days).  I would guess that fact wouldn't be changed by any subsequent testimony, since later testimony would be given after she had been advised of her rights.  I do think her inquest testimony could have formed the basis for cross-examination, though, and that might have cooked her goose.  (Or given her whim-whams.) 

F Lee Bailey's "The Defense Never Rests" explains why certain defendants should never take the stand: "those with strong personalities" (as I remember it). A defendant should always appear meek and mild, and never lose his/her temper, or respond with wisecracks, etc. All this will lose juror sympathy. A proud and haughty person will not win sympathy.

He also explains why innocence is irrelevant to any defendant!!!

Isn't there something in AR Brown's book about Lizzie's response to Knowlton's question "remember when the river was frozen over"? When Knowlton answered "you're here to answer questions, not ask them" she clammed up?

DO NOT ASSUME that any prosecutor is automatically on the side of justice! He wants to get convictions like a military officer wants body counts.

As mentioned in the books, the so-called "Miranda warning" was common practice in the 19th century. In the early 20th the "third degree" was used to get confessions and convictions, and other Constitutional rights effectively abolished by the minions of the Ruling Class.
Stalin's police were forbidden the 3rd degree; they invented the "keep them awake until they confess" technique. You can see an example of this in the 1947 film "Boomerang" (a good drama to watch).

In small towns they still depended on eyewitness testimony to solve crimes. Are chickens missing? Did we catch a stranger with a chicken?

The Warren Court did not make new laws, they merely resurrected the old laws that were abolished around the time of WW I. Such as the 'dragnet' practice in the big cities at that time. You would be travelling the streets, then suddenly arrested and taken to headquarter to 'proove your innocence'. Those who seemd suspicious would be held in jail. You can look it up. The 'dragnet' was declared illegal in the 1940s (as I remember it).

Well, since the Inquest testimony was thrown out, then she could have said anything she wanted to at the trial and not been held to her original version of events. She could have changed her story and made it all seem more reasonable (where she was, when she was where, etc.).

Her testimony at the Inquest contradicts Bridget's Trial testimony. Bridget's Inquest testimony is lost so we don't know what she originally said there.

However, if Lizzie so disagreed with Bridget, why didn't she take the stand and dispute her times and her testimony as to Lizzie's whereabouts? Could it be that Lizzie was telling the truth in the Inquest and she refused to lie about what happened? If so, her reason not to contradict Bridget might be for the reason that Bridget was entirely believable, had nothing to gain by her testimony, and was considered totally innocent by all concerned. If she disputed Bridget's time line of events, her chronology of who got up when and ate what, etc., then it would be a tug of war between them.

Remember, only Bridget and Lizzie (and Morse) survived that house. Morse leaves early. Everything between 9 am and 11 am is Bridget's word. Pehaps Bridget, who was imminently more believable, was allowed to have the upper hand. The confusion as to evidience (blood, etc.) on Lizzie was the only reasonable doubt.

If Lizzie had testified and disputed Bridget, then the jury would have to decide who to believe and then the conviction would be probable. Keeping Lizzie quiet would only assist her in her defense. Let the jury figure it out without her adding her "truth" to the story.??

For once, I think F. Lee Bailey was onto something.  Most certainly Lizzie would have qualified as a "strong personality," and I don't think she came across as exactly meek and mild.  She was actually nicer than I would have been when Knowlton began acting up at the inquest.  I would probably have thrown my lorgnette at him!  -Or maybe my reticule!

Yes, along the lines of F. Lee Bailey, I think Lizzie would have come across way too strong.  Her "mannish" looks, the gutteral harshness of her voice.  Plus, when she was pushed too hard she came back with her own, such as the "I don't know it---I don't know what your name is." That could come across as her being argumentative.  But, I'm with you Edisto, I would have been hard pressed to behave as a lady and not whap Knowlton with my fan or something! 

No, the visitor (or "Nemesis") was also present.
You can dispute whether it was Wm S Borden, Wm A Davis, or Masterton's pick.
Note how this Parallax View of a hidden visitor solves and explains many questions?

F Lee Bailey strongly urges the defendant to testify against direct evidence (eyewitness testimony). But not necessarily in a case where there is only circumstantial evidence. (If I remember correctly.)

Any defendant who throws a tantrum will lose juror symapathy. Also if he anwers back sarcastically (I'll never be on the stand). The prosecutor will often try to bait or insult to get this response.
"Gee, if he gets so angry then maybe he did get ticked off and do it".

Remember that case in Atlanta 20 years ago where the anger of the suspect (no eyewitnesses) helped to convince that jury that "this nice young man" really could have acted in anger?

If you're referring to Wayne Williams, I doubt he "acted in anger."
I believe he was a cold-blooded pedopheliac sociopath.
I do remember the scene in the movie where they got him to show his true self...which..in the movie, was a brash, passionate, know-it-all, who showed his disdain for the police and the criminal justice system.

We don't really know what Lizzie's demeanor was.  She could have been anything...since she didn't speak.
If she HAD spoken, I believe she may have been exposed to the hazzards Stef ennunciated.
How her Inquest testimony *sounds* to us reading it 110 years later may not be what it *sounded* like in real life.(  We've talked about this before.)

I live on the Lynn/Swampscott Massachusetts beach and Mr. F.Lee Bailey just bought a house around the corner from me. There goes the neighborhood...

OR, now comes a great opportunity to ask him about the case! I find lawyers exceedingly interested in this case. Even Supreme Court justices! Maybe you two have something in common: Lizzie! Great conversation starter, that is, if you want to have a conversation with him.

OJ, the Boston Strangler, Sam Sheppard, the list goes on and on. No matter what you think of him personally, he is quite an historical figure in the annals of true crime. Plus, he is still considered one of the greatest cross-examiners of all time.

Oh, if you do meet him, ask him to stop by here!

I'm sure Mr. Bailey will like his new digs much better than that old jail cell.  Yes, I think he should get an invitation to share his views on Lizzie.  For that matter, I'd love to hear his views on O. J. too.  (Would you check to see if he carries anything wadded up in his sock?)

Lizzie Borden's legal rights were protected by both the U.S Constitution and the Massachusetts Constitution. Provisions of state constitutions and statutes cannot conflict with the protections afforded by the U.S. Constitution but I believe the states can write even greater protections into their own laws if they want to.

Lizzie was brought to trial under the laws of Massachusetts. Does anyone know whether in 1892-93 the Commonwealth provided more protection for criminal defendants, particularly in regard to self-incrimination, than might have been required by the U.S. Constitution?

Nope, don't know the answer.  It's a good question.

Have you read the essay's on the law of the case that are now offered as download at the Virtual Library?

One is by Wigmore, The Borden Case, 1893
The other is by Judge Davis, Conduct of the Law..., 1894

I read one but not the other, yet.

They are under RESOURCES, "Case Related Essays".

Kat, I printed out Wigmore last week and have read about half of it. So far he has not addressed that question. I have not yet read Davis. I have also been reviewing Goodbye Lizzie Borden by Robert Sullivan and have not found an answer there, either.

I'm glad Stefani and Harry were able to process and include the Wigmore and Davis essays/letters on this website. A few years ago, before I was personally on the internet, I was at my college reunion and took some time to visit the library to see if I could find the Wigmore essay. I had no luck, either on the shelves or on the library's internet connections. Either I looked in the wrong places, did not look hard enough, or it was not readily available at that time. Looking back I might have had better luck finding Davis as his letters were printed in a Boston newspaper and my alma mater is in the Boston area.

Anyway, both of these pieces are a valuable addition here!

I really like the Wigmore essay. It was easy to read and I could tell he not only knew his stuff, but was deeply interested in the case.

Davis is a bit dense, however, and I had to stop and start it to get the meaning.

I don't think you will find the answer to your exact question in them, but the Wigmore is important because he works out the legalities of Lizzie's Inquest testimony not being allowed at the trial. It is a clear argument.

To answer your specific question, you might have to go to a law library and look at Mass Statutes. Should be fairly simple as the indexes in those things are remarkable.

This doesn't answer your question Doug but it is a useful site. It lists the current General Laws of the State of Massachusetts.

http://www.state.ma.us/legis/laws/mgl/gl-276-toc.htm

Maybe your neighborhood is already gone? Are there any other lawyers (or other professionals) living there?
"The Defense Never Rests" has some interesting chapters, especially the last two. You should read them.
Don't criticize what you don't understand!

I wouldn't say that a mute defendant is guilty.  I think Westerfield needs to take the stand, tho.  The guy looks guilty, and they have a lot of evidence on him. 

It was best for Lizzie not to take the stand.  It's the defendant's right.  And if she would have, that opens her up to cross by the prosecution.  That could be horrific.  There was no need for her to take the stand.  There was no case. 

That was one reason her supporters turned on her after the trial.  People expected her to explain everything once the trial was over.  But she never said a word.  It made people think twice about it and wonder if she really did do it.  Because if she didn't, why on earth wouldn't she explain those bits and pieces that incriminated her?  (Personally I think it was because she was guilty - or that was her nature, like it or lump it.)

She did make one comment that's in the Sourcebook.  She said that she hoped the murderer would be found out and when that happened, people would see then - something like that.  It sounded like she knew who it was and was just waiting for the arrest.  (Maybe she was still on the Hiram Harrington kick.)

I think she WAS on the Hiram Harrington kick.

By not testifying she did leave herself open to *Not Proven FOR or Against* in the minds of the townies.

Then, when she didn't testify, she should have gotten outta Dodge, gone to Paris, wherever...and started anew.

HOW could she even THINK that by not explaining (on the stand...in an interview) she could have a full and happy life in Fall River?  Maybe she was Stubborn, like that...

I suppose her expensive lawyers did her a disservice by gaining her an acquittal, but not an exoneration.  At those prices, she should have come out smelling like a Pansy!

She didn't testify because of the age old lawyer philosophy...when your client knows more than you want others to know you never put them on the stand.

Remember O.J.?  He never spoke a word one way or the other...puts that other age old legal philosophy in the heads of the jury...its called 'reasonable doubt'.

But in the case of our beloved Lizzie the jury was more like a panel of father-figures then jurors.  Most of them had daugthers and were as old or older then the departed Andrew. J.

Tis my two cents worth...

BC

Thanks for the link, Harry, to the Massachusetts statutes! Actually I just found some answers to my question about self-incrimination in Justice Dewey's charge to the Borden jury. Dewey says "The constitution of our State in its Bill of Rights provides that 'No subject shall be compelled to accuse or furnish evidence against himself.'" Dewey goes on to note that under common law "persons on trial for crime have no right to testify in their own defense." He then quotes a Massachusetts statute that says a person charged with a crime "...shall, at his own request, but not otherwise, be deemed a competent witness; and his neglect or refusal to testify shall not create any presumption against him." So, as Lizzie Borden made no request to be deemed a "competent witness" she remained "incompetent" to testify under the law.

I think the question of "Why Didn't Lizzie Testify" can really be divided into two questions. They are, "Why Didn't Lizzie Have to Testify?" and "Why Did Lizzie Choose Not to Testify?" Massachusetts law protected her right not to testify and equally as important Lizzie's decision not to testify could not under the law be held against her. Why Lizzie chose not to testify at her trial is known to her and her legal team but I suspect it had something to do with how inconsistent her explanations of her actions and movements on the morning of August 4, 1892, had been; it had to do with the fact that she burned a dress in the kitchen stove on the following Sunday morning; it had to do with Lizzie's personality and her demeanor when she was questioned and/or challenged; and her lawyers realized that, as Justice Dewey stated in his charge, if the defendant chooses to testify "she becomes a witness with less than the privileges of an ordinary witness....Being a party, she is exposed to peculiar danger of having her conduct on the stand and her testimony severely scrutinized and perhaps misjudged...."

Thanks, Doug.  Nice post!  You've made something that I don't understand very well (law) and made it clear enough that I even get it!  Thanks again. 

Nice post Doug. If I was her lawyer I would never had let her take the stand.

Once the inquest testimony had been excluded there was no reason for her to testify.  It was generally conceded in the newspapers at the time that the case was lost when that was excluded. Why fight (and win) to exclude the inquest and then allow her to testify and face the same or harder questions? Knowlton and Moody would have had time to review her inquest statement and really put the difficult questions to her.

Also she would have made a terrible witness. She has been variously described as cold, arrogant, stubborn and worst of all defiant, as she allegedly said "..I will not give an inch!"  That would be the last thing you would want the jury to see.

Doug, a well reasoned explanation! You have a very logical mind, and a gift of explaining complicated issues in layman's terms. Thank you!

I also agree with Harry (not that he disagrees with Doug) when he says that there was really no point in it after the Inquest was excluded. I think that is Wigmore's point as well. IF the Inquest had not been excluded, Lizzie, to quote Kash, would have had some splainin to do!

She couldn't afford that. Her expensive lawyers earned their money by putting  a muzzle on her and winning the Inquest argument. Of course, it helped that one of the judges seemed to be on her side as well, (right Ray?).

The fact that Lizzie stayed in town, instead of becoming a celebrity in Paris, which would have welcomed her with open arms, has always seemed strange to me. Face it, she either did it, didn't do it, or didn't do and knew who did. With any scenario, there was no guarantee what others would think. She was an odd duck, to be sure, keeping her big mouth shut all her life about it. In a way she flaunted it to Fall River, saying, hell, I was acquitted now go pound sand! But still, if she was innocent, it must have hurt her feelings a bit to be shunned the way she was. And if she did do it, then she sure shoved it in their faces for the rest of her life by not leaving and not talking about it. Lizzie's life following the trial is probably where all the clues lie as to her guilt or innocence.

F Lee Bailey's "The Defense Never Rests" suggests that a defendant should never testify when the evidence is only circumstantial. But do testify if there are eyewitnsses (however mistaken - see the book). [To allay any suspicion in the juror's minds over guilt?] I can't quote any examples; some of the quotes here are totally against the facts. Judge Dewey also discussed the unreliability of eyewitness testimony. As far as I know, I-witness testimony is accurate (if not mistaken or lying) when the witness previously knew the accused well.

For example, not having met either Susan or Kat, I could be mistaken if I were to see them for only a few seconds. [Do you ever get names mixed up when meeting strange people?] But not if they were school mates or long-time neighbors. What is your experience?

I beleive that Bridget was just what she appeared to be: a simple country girl who came to America to seek a new life (husband, fortune, etc.).
So too Lizzie was the rather simple nouveaux riche heiress who KNEW she wasn't guilty, and would not run off to the big city. (Besides, her fortune resided in Fall River, and, being Andy's girl, couldn't trust absentee management.) Andy knew that his hired hands worked better when they knew they were being watched. Then or now.
The only mistake (?) she made was to not tell what she knew when she knew it: "William S Borden, my cousin, was the last man to see Father alive". But Andy wanted no one to know about his batsard boy. Can you imagine the proud stiff Andy being the butt of all the jokes? Can you imagine the Misses on the Hill making cutting remarks about Lizzie or Emma? "I wonder if she has any more brothers hiding on a farm?"

As well informed as you should be about the Borden Murders, you should be the first to know that OJ Simpson was INNOCENT of committing the murders. The limo driver picked him up at 11PM, and took him to LAX for the red-eye to Chicago. The red liquid blood found tricking down the sidewalk after midnight says the murders were done around/after 11:30PM. I think I convinced an older relative of mine a few years ago of this. As an experienced deer hunter who got his yearly quota, and field dressed them, he volunteered that "40 or 45 minutes" for fresh red blood to turn black and clotter. And thats in 20F winter, not the 70F LA summer!
You may browse www.geocities.com/capitolhill/5244 for reports the newspapers will never print.
Or www.policenet.com/ojcons1.html too.

The current issue of "National Enquirer" (for all inquiring minds) has an article on OJ and allegations of his involvement with drugs. We know that Nicole had a party weeks before her death, with pimps, prostitutes, and drug dealers. Was this only a coincidence?

Didn't they also do a sting on John Walsh, beside Kathy's husband?

Maybe OJ "failed a lie detector" because he knew things that could make him a target for criminals if he spoke out?

I have a question about the Official Hierarchy in the Police and City Government:

Is the Mayor boss of the Marshal
who is boss of the Assist. Marshal, etc. on down?

Does the Mayor have the final say over how the police are to proceed, UNTIL the suspect is arrested...and THEN it becomes a matter of LAW and in the hands of the STATE (as in D.A. ?)

Kat:
I've worked for a city government, and I believe the answer to your qustion is, "It depends on the city."  In some municipalities, the mayor's post is pretty much a ceremonial one; in others, he's the boss. I'm guessing you're thinking of Fall River in the days when the Borden murders happened.  One possible source of information about the city government in those days might be Victorian Vistas.  It certainly seems as if Hizzoner, Mayor Coughlin, was a hands-on kinda guy, so he possibly was the boss of the PD. 

The answer depends on whether the Mayor is part of the Ruling Clique, or just a puppet. The classic example was the 1920s mayor of New York City. During a press conference, he was asked who the new Police Chief would be. "They haven't told me yet." (He served one term?)

Yes,thanks, Fall River, 1892-3, Mayor Coughlin etc.
Then the SHERIFF is COUNTY?  And not under orders of the CITY Bureaucracy? (sp)  Know who HE would report to?  D.A.?

(Message last edited Aug-3rd-02  10:17 PM.)

Today the chief of police - or whatever that type of position is called in other cities - reports to the D.A.  I don't know if it was different in 1892.  (Why don't I just come out and say "I'm no help!")

In the 19th century, when we had more democracy, the police marshall was always an elected post. A police chief was appointed. Not that the political ruling clique didn't decide who got elected. See the story about Wyatt Earp (from the 1993 film).

There's one scene where he wants to hire his brothers, telling them he's making $1000 a month (or so?). Given the $5 a week salary for mill workers (an 80 hour week) that should be about $100,000 a month in today's world. The marshal got about $10 out of each $25 fine. Just like in some areas today. To encourage "enforcement of the law".

F Lee Bailey's "Defense Never Rests" has an informative story.

A boy and girl walk into the woods. The boy returns alone, with scratches and bruises on his face and arms. The girl is never seen again. Months later, a skeleton hand and arm is found. The boy is tried for her murder.

Read the book to learn the technicality that got him off from murder! (I'm not making this up!)