Exceptions to Every Rule.

[Allen]

I wasn't sure what thread to post this information in, so I decided to just make a separte thread to post. I had always been under the assumption that witnesses were not permitted to be present in the court room during the testimony of another witness during the trial. It seems that there were a few exceptions made to this rule during the Borden trial.


This exchange takes place during the trial testimony of John Morse starting on page 130.

Q. Into which room did you go when you got up and went down stairs on the Thursday morning?
A. Sitting room.

Page 131

MR. ROBINSON. May it please your honors, we may say with perfect propriety with the counsel for the Commonwealth that we have agreed that the witnesses that have not testified on either side might be excluded from the room during the testimony of witnesses. We concur in that and we think it right in order to arrive at a right conclusion. It may have been carried out thus far. I do not know whether it has or not.

MR. KNOWLTON. It has been, strictly.

MASON, C.J. Do you desire that the order be without exceptions,---including professionals as well as other witnesses?

MR. ROBINSON. I understand that the government desires to have some exemptions made.

MR. KNOWLTON. Yes, sir. I think it is a very proper order in itself. We have two witnesses who happen to be actively engaged in reporting for the newspapers in Fall River, however, whom we desire to except from the order, Messrs. Manning and Stevens. I have told our friends on the other side practically what we will testify to and they have agreed that they not be excluded. I never knew the order to include witnesses who are purely professional, who were to testify on matters of opinion only. We should not care to ask for the presence of Dr. Dolan because he testifies largely to facts, but when witnesses do arrive on either side who have no knowledge of the circumstances whatever, are called for their opinions as men of experience, I suppose the Court would not enforce an order for their exclusion?

page 132

MR. ROBINSON. We wish to exclude from the order Mr. Buck, Mr. Jubb, Mr. Holmes, and a reporter, a Mr. Caldwell, who may or may not be called.

MR. KNOWLTON. He is actively engaged in reporting now. That is agreed to.

MASON, C.J. The defence do not desire to have excluded experts who testify as such.

MR. ROBINSON. We do not.

MR. KNOWLTON. I would say Dr. Draper did assist at the autopsy, but I suppose you do not care to make an exception of him?

MR. ROBINSON. We do.

MR. KNOWLTON. We will talk of that later.

MASON, C. J. All the witnesses that have been summoned on either side, with the exception of the three that are serving as reporters and have been named, and with the exception of those who are summoned for expert testimony exclusively, and the three that have been named by counsel, called for the defence, may now withdraw, and the sheriff will see that a suitable place is provided and that all witnesses that may hereafter come will also withdraw from the room until they testify.

MR. KNOWLTON. As a matter of fact that has been largely done during the trial.

Page 133

Q. I may repeat, Mr. Morse, a question or two.
A. Alright.

Q. When you came down stairs on Thursday morning, into which room did you go?
A. Sitting-room.

So it does appear there were exceptions made to this rule. Could this in any way be considered significant?

[Harry]

Excellent point, Missy. Prof. Wood even testified that his opinion on the the time difference between the two murders was based in part on what he heard in the court room. Trial p996+:

"Q. And have you been present and heard the evidence in the case?
A. Yes, sir.
Q. So far as relates to the condition of the bodies?
A. Yes, sir.
Q. And the condition of the intestines?
A. Yes, sir.
Q. And the various witnesses who have testified to the appearance of the bodies after they were discovered, and to the description of the intestines?
A. Yes, sir.
Q. Taking all those facts as you have heard them, and also the examinations that you made yourself, what of them do you deem to be important in determining the time, the relative time, of the death of those two people?
A. The difference in the period of digestion, both stomach and intestinal, the drying of the blood, and the temperature of the body.
Q. And also the intestines?
A. I mentioned that."

I always thought that was strange.

Today, I don't think that is allowed under any circumstance but I am not an expert on court proceedings. In the cases I have seen on Court TV, the witness always enters the court room when called.

[RayS]

This is another example where some knowledge of legal procedure will avoid any misunderstanding.
I think any person who has testified for either side, and has been excused from further questioning, could remain in the courtroom
The reason for disallowing a witness to hear the other's testimony is to prevent any modificiation or collusion between witnesses. Getting it all down on paper should prevent this, or allow for impeaching differing testimony.

You may be better off by reading a book written by someone who has spent the time to learn the background. IMO

[Harry]

Missy, there is another example of a future witness being in the room during testimony.

Dr. Cheever testified immediately after Dr. Draper.

When Dr. Draper needed assistance in giving his demonstrartion of fitting the tin pieces into the skull cuts and Dr. Cheever who was in the room, was asked to hold the skull (page 1049).

Later Dr. Cheever, like Prof. Wood, is also asked about witnesses he heard in relation to forming his opinion of the time difference. Page 1088 -

"Q. Will you state what witness or witnesses that you have listened to that seemed to you to be significant of the conclusion to draw from them, and how certain you are of your conclusions?
A. The fact that Mrs. Borden's body was sensibly cooler than Mr. Borden's, the fact that the blood which was poured out on the surroundings was coagulated to a certain degree about the person of Mrs. Borden and was entirely liquid and dripping from the wounds of Mr. Borden and the fact that in Mrs. Borden's case the digestion was still going on and that in Mr. Borden it was apparently almost completed---all these things taken together convinced me that Mrs. Borden
died first, and probably by considerable interval."

I believe there are many other examples as well. Prof. Wood's testimony has quite a few.

[RayS]

Yes, but presumably the Doctors were professionals who would tell what they observed (from their notes).

[Allen]

Thank you so much Harry for finding and providing that testimony. I wondered if it was possible that some of the witnesses may have been influenced in giving their own testimony by what they had heard prior to that in the court room from the others. Something also bothers me about the reporters being allowed inside the court room to take notes and report on testimony before they had their chance to tell what they had seen and heard that day.

[Harry]

Yes, everyone to a certain degree would be influenced by what he heard previous. That was the big question as well with Judge Blaisdell sitting at the Preliminary when he conducted the Inquest. At least he had a legal background.

[RayS]

Thank you so much Harry for finding and providing that testimony. I wondered if it was possible that some of the witnesses may have been influenced in giving their own testimony by what they had heard prior to that in the court room from the others. Something also bothers me about the reporters being allowed inside the court room to take notes and report on testimony before they had their chance to tell what they had seen and heard that day.

That is why police question witnesses and get their written and signed statement, as needed.
I'll bet you can tell us a lot from your studies.

[Allen]

Thank you so much Harry for finding and providing that testimony. I wondered if it was possible that some of the witnesses may have been influenced in giving their own testimony by what they had heard prior to that in the court room from the others. Something also bothers me about the reporters being allowed inside the court room to take notes and report on testimony before they had their chance to tell what they had seen and heard that day.

That is why police question witnesses and get their written and signed statement, as needed.
I'll bet you can tell us a lot from your studies.

Unless their statements are among the missing, nowhere do I see statements taken by police from Manning or Stevens in the Witness Statements.