Lizzie Borden Society Forum

At the end of the Preliminary hearing Judge Blaisdell ruled Lizzie "probably guilty" and bound her over for the grand jury.

Maybe this is a matter of semantics but the term "probably guilty" is on the harsh side. Should not the correct terminology have been that there was "probable cause" for her to be bound over?

You are correct Sir!

The phrasing would have run something like this: "Lizzie Andrew Borden, it is the judgement of this court that sufficient evidence exists to support a trial of this cause in the criminal courts. It is therefore ordered..." etc., etc.

I think you're right Harry. Actually a preliminary hearing just resolves that a crime has been committed, like a grand jury would, only with much less formality. It is just a judge and an accused and prosecutor, and accused' lawyer if he then has one. It's a way that criminals get off lightly without having to hire lawyers. Interestingly, a lot of guilty people should plead guilty at a preliminary hearing, which they can by law, and there is no background gathered by the prosecution, depending on how busy or effective the prosecution is. Usually only "jail knowees" know this so it's why you hear very occasionally of light sentencing.

It's also my understanding that the evidence is finally exposed to the defence in a Prelim. Back then tho, they didn't have the right of "Discovery", correct, and a prelim was to force both sides to show their hand?
I think there is a letter in the Knowlton Papers warning not to bring in all the evidence- just enough to sway the judge.

The prosecution could introduce as little evidence as possible, just enough in their opinion to convince the judge. There was no discovery rule. According to an article in a Boston newspaper Jennings said that the first time the defense heard Lizzie's formal inquest testimony was when it was read at the Preliminary.

Also, the rules of what is admissible evidence at a preliminary hearing are less strict than at a trial. Hence, Eli Bence and Lizzie's inquest testimony being allowed.

Judge Blaisdell's serving as the Judge at the preliminary after having served as the Judge at the inquest has always been controversial.

A curious thing in that regard is that Knowlton, at the preliminary, read Lizzie's inquest testimony into the record. For whose benefit was that? Judge Blaisdell was the presiding judge at the inquest and had already heard it. He had the opportunity to see Lizzie's demeanor and expressions when testifying. At the preliminary there was no other person to impress with this evidence than Judge Blaisdell as he was the sole arbiter of her probable involvement.

The only reason I could see for the reading of Lizzie's inquest testimony is that Blaisdell was supposed to make his ruling based strictly on the evidence introduced at the preliminary. Knowlton in his reading may also have emphasized certain points, either by comments, tone of voice, raised eyebrow, etc. Unfortunately, official records rarely mention things like that.

If they had a preliminary hearing, why did they have a grand jury? Was this necessary to capital or felony?
Inquest testimony, though it may be under oath, is not considered definitive testimony by a court because it could be sworn before a justice of the peace, or even a notary, depending on the staff of a locality.
I guess the point I see is that Lizzie was drawn and quartered to cover all bases.

Thanks Har. Interesting additional theory about why the inquest was included in the prelim transcription.

The process was:
Aug. 8, 1892 Warrant issued- not served
Aug. 9-11 Inquest
Aug. 11 Arrested on a new warrant
Aug. 12 Arraigned "probable cause"- pleaded "not guilty"
Aug. 25-Sept.1 Preliminary Hearing
Nov. 7-21 Grand Jury
Dec. 1 Grand Jury reconvened
Dec. 2 Indicted
May 8, 1893 Arraigned Supior Court, New Bedford
June 5-20 Trial- Acquittal

Lizzie was held for the grand jury, which legal body had the power to Indict. Also note 2 arraignments.
I think the over-kill might be the Indictment itself, which charged Lizzie Borden with the murder of Andrew, the murder of Abby and the murder of both: 3 indictments.