The Jury's decision

[Harry]

Ran across an interesting article in the Fall River Weekly News, dated June 28, 1893. It's an interview with the Borden jury foreman, Charles Richards. It doesn't mention the day the interview took place. In it, he says:

"... We arrived at our verdict," said Foreman Richards, "on the evidence. The government did not prove its case. The arguments had little weight, although they helped to clear some things in our minds. We talked over the evidence day by day as we assembled in our apartments at the Parker House, but had no arguments nor came to any sort of an agreement previous to entering the jury room yesterday afternoon. ..."

What is interesting is that the jury was allowed to discuss the evidence before it was all in and before final arguments. That would not be allowed today as jurors are reminded at every break or recess not to discuss the case either among themselves or with others.

In another article in the Boston Journal, also dated the 28th, it says "the jurors talked over the evidence on Sunday."

It would definitely result in a mis-trial today.

[Yooper]

I agree, there was a basis for a mis-trial, but was that the rule at the time? The prosecution would have benefitted from another chance, but they didn't seem to be in any hurry to make another attempt. I doubt if Lizzie would be convicted today given the same evidence, so ultimately it made no difference if the jury discussed the case in progress.

The entire trial seemed to be a performance for the benefit of the public, just going through the motions.

[RayS]

Comments about today's court procedure are true. A lot has change over the last 50 years, thanks to the Warren court. You do know that Earl Warren had a right-wing reputation as Prosecutor of Alameda County, Attorney General and Governor of California? Circumstances alter viewpoints?

But what did YOU do in your court cases?

[Steveads2004]

There is a lot to be gained by comparing the Lizzie and OJ trials. Both were seen as "Crimes of the Century" Both gruesome brutal murders and of course similar outcomes. OJ pledged to dedicate his life to finding the real killers...he leaves no golf course unsearched...Did Liz ever make any attempt to find justice for "not my mother" or dad? Not that I know of...but then she didn't want Bill caught...there was plenty of time to have him carbolic-ized and hung later...

[Kat]

I don't think any jury was supposed to discuss anything until all evidence had been presented, including testimony.
I don't think closing remarks are evidence but the rule is to wait to the end of the trial.
I'm pretty sure the juries of 1892 were bound to this same rule.
It's a good point, Harry.

[Jan]

Interesting quote from the jury foreman. Legend has it that when they eventually retired to consider their verdict they waited an hour before returning the not guilty verdict. They merely chatted amongst themselves before returning to court. Surely they had no business discussing the case before the trial had finished. They had obviously made up their minds long before. Maybe the real reason for the "not guilty" verdict was the fact that Lizzie was an upper middle-class woman in the Victorian era, and men just couldn't fathom the idea of such a woman committing a violent crime. If she had been a mill worker, would she have been acquitted? I don't think so. Judge Robert Sullivan, in his book, sets out a strong case why the Commonwealth failed to convince the jury.

[doug65oh]

Actually Kat, you're right about the admonition as we understand it today. But, in a broader sense, the jury is (in part) bound to obey the instructions of the Court - no more, no less. They're told exactly what to do, when, and how - the instruction given prior to the viewing of the house is a prime example. Similarly, they were instructed on the various points of law applicable to the case, and told exactly how to interpret them as they related to the evidence in the case.

Simplistic as it might sound, if they were not given a "Thou shalt not discuss..." admonition, how would they know not to? These folks were not by any means foolish, but in this instance "How would they know?" becomes at least a mometarily-valid question.

If anyone raised the matter of outside discussion post-trial, they could say simply and truthfully, "We followed the instructions of the Court."

It's also correct that arguments are not evidence. In a way, they're nothing more than "Narrative aids" designed to assist juries in reaching what either side regards a "true" verdict. They can refer to evidence, but are not by themselves to be regarded as evidence.

[Harry]

I went back and looked at the Trial transcription, volume I, and the judge's comments after the selection of the jury.

There is no pre-admonition of any sort regarding the discussing of the case amongst themselves. They are warned not to allow outsiders or the lawyers to discuss the case with them while on the view of the crime scene areas. That restriction is then enforced during the trial by them being sequestered.

Today, some courts allow the taking of notes by the jurors. There is no indication that anything like that was done during the Borden trial. Some courts do not allow it as they feel it is a distraction and the juror while taking notes misses the testimony going on at the same time.

[Haulover]

i only know it is true today -- don't discuss until the end when you deliberate. i was on a jury in a murder trial once. we did obey this instruction, which was given to us clearly by the judge. i doubt it would have affected the outcome. it didn't take us but 30 min. or so, and then we chatted for a while. this was not a difficult call, though i realize it can be. i guess the rationale is that if these "threads of conversation" are started early on they tend toward subjectivity and psychological connections among jurors that make objectivity more difficult. anyway, in this case i was on, when the time came, we all had plenty to say that was stored-up, and there was actually no disagreement among us.

[Kat]

Harry, checking the trial is a good thing to do- smart- thanks.
Should we check after the end of every day? Did the judge give any daily instruction when he let the jury leave? For some reason I thought they had been told not to talk.

Thanks for the explanation, Doug!

[doug65oh]

I've looked pretty thoroughly for any admonitions directed to the jury (other than "You will disregard..." that is) and found absolutely no prohibition by the Court of case discussion among themselves outside of court. Aside from the earlier instance noted above regarding the view, the closest we come is this, at pg. 1608:

MASON, C. J. I desire to say to the jury that the testimony in this cause is now all in, but from the length of the cause it would not be reasonable to require counsel to begin at once the arguments. The Court regrets that the delay that will be necessary will occasion the jury some inconvenience, but it seems essential for a full and fair presentation of the cause. I ought to caution the jury that notwithstanding the evidence is
all in, there is much more to be submitted to them, and they should keep their minds open to the last, until the last word has been said and the cause finally committed to them. Let the officers be sworn.
------
The word "talk" appears many times in the trial record, but in no instance does it relate to any specific instruction. The word "discuss" appears seven times actually, but again, is never used in such a fashion as might be construed as a direct prohibitive instruction to the jury.

[Kat]

Thanks for looking that up, Doug-Oh!!