Poll Question

[Kat]

June 17, 1893: "A Flaw In The Jury System"

"James W. Clarke, in the New York Recorder, discussing the present jury system, makes the following sensible suggestion in behalf of a woman juror in cases where a woman is on trial...Slowly, perhaps, but surely, the idea is growing that a jury ought to be composed of men and women, and that a woman especially should have a jury of her peers, not her sovereigns, as in the case of Lizzie Borden."

I will transcribe his reasons later into the poll.

What are your reasons for how you voted?

[Richard]

I really think the outcome of the trial was a result of the failure to prove the case, unlike the OJ Simpson trial where I think having women on the jury influenced the results.

[Yooper]

I agree that the trial was the result of a lack of hard evidence and suppression of testimony. I can't imagine the presence of women on the jury changing that.

What might be interesting is a re-trial with an all woman jury. It might prove or disprove whatever the final vote tally indicates.

Female police investigators might have had more of an impact on the Borden case.

[snokkums]

I think that the women would have found her guilty. The women of the day wore those long dresses so they would have known where to conceal the axe. She could have put the axe somewhere in the petticoats. Then she could have taken and put it somewhere, hide it or something so that the police coudn't find it. Plus, she didn't have female police, so she could have hid, because she knew she wasn't going to get searched. Besides, women can be sneaky sometimes, so I think that the all woman jury probably would have know this, tried to figure a way that she could have done it.

[joe]

I think women on the jury would make a difference. I believe they would have convicted her. They would not have been swayed by Lizzie's demeanor during the trial; also, they might have a more negative bias toward her, especially about the dress burning. I think if the jury was composed of middle/lower class women, they would have been more apt to convict her. "Society" women, perhaps not.

[weber]

I don't think having women on the jury would have made any difference.
There just wasn't enough evidence.

I don't believe the murder weapon could have been hidden in her petticoats. It would have been bloody which would have stained her undergarments. The police did find one tiny spot of blood so they certainly would have found larger spots. Of course, I am not at all sure that Lizzie did the deed. She had motive (money) and was certaily on the scene (eating pears in the barn not withstanding), but where was the blood? Where was the the weapon? Unless the timeline is very off but that has more or less been established.

What if Bridget hid the bloody weapon in her petticoats. I don't remember that she was ever searched.

[RayS]

This seems to be a Rohrshach Test question, where the answer reflects on the mental state of the person.

Does that cloud in the sky look like a camel or a horse?

[diana]

What a good question! I honestly don't think I can answer yes or no.

By the way -- is Clarke being facetious when he suggests men are sovereign to women? It's hard to know one way or the other when the quote is out of context.

It's very likely the patriarchal society of that time figures in here somewhere, though. It probably was very difficult for men to imagine a 'lady' being capable of such a heinous crime.

Even poor Judge Blaisdell seems compelled to justify sending a woman to trial when he delivers the verdict at the Preliminary Hearing: "Suppose a man had been found in the vicinity of Mr. Borden; was the first to find the body, and the only account he could give of himself was the unreasonable one that he was out in the barn looking for sinkers; then he was out in the yard; then he was out for something else; would there be any question in the minds of men what should be done with such a man?"

And remember how Robinson played the flower of womanhood card in his closing argument with references to Lizzie's vulnerability?
"If the little sparrow does not fall unnoticed to the ground, indeed, in God's great providence, this woman has not been alone in this court room, but ever shielded by His providence from above, and by the sympathy and watch(ful) care of those who have her to look after."

Robinson also suggests: "I don't know where I would want my daughter to be, at home ordinarily, or where it would speak more for her honor and care, and reflect somewhat of credit upon me and her mother, (who is my wife, I want to say), than to say that she was at home, attending to the ordinary vocations of life, as a dutiful member of the household, as belonging there."

And he tries to evoke thoughts of women important in the lives of the jury members as he mounts his arguments for Lizzie's innocence.
"You are out of families, you come from firesides, you are members of households, you have wives and daughters and sisters and you have had mothers, you recognize the bond that unites and the flash that plays throughout the household. Now bring your hearts and your homes and your intellects here, and let us talk to you as men, not as unmeaning things."

Lizzie's gender was definitely featured in her trial -- but whether women on the jury would have made a difference? I just don't know....

[BaAz5]

I agree that women on the jury would have wanted to find her guilty, but the reality is they would have had to go with the law and there wasn't enough evidence to convict her.

[RayS]

I agree that women on the jury would have wanted to find her guilty, but the reality is they would have had to go with the law and there wasn't enough evidence to convict her.

WHY would they do that? You haven't explained!
I once read that women are inclined to convict a beautiful woman, they want to get back at the slights they felt over the years. Especially if she is accused of killing a husband.

WHAT have you read? I'm sure you have no practical experience.

[Harry]

It's an interesting question.

It has been said that female jurors tend to be harder on a female defendant than male jurors. If you can accept that men in 1893 couldn't believe that a woman could commit such a crime then that becomes explainable. Women knew better.

In the Borden case there appears to be just too much reasonable doubt to find a guilty verdict. That still doesn't mean she was innocent.

[Kat]

ray, you didn't vote or didn't explain, yourself, so please leave BaAz out of this.

I didn't vote but I think women would have made a difference. I think they would have seen past the tender/gender issue and know that a woman was capable of a killing like this. They may also have not yet had the sophistication to differentiate between the law and their conscience in a court setting. These would have been women who had been kept down all their lives.
(And yes men were *sovereign* over them in the strict sense). I also think they would have been harder on her.

The rest of the quote is:
Another jury reform suggests itself in connection with the Borden jury. Here is a woman put upon trial for her life, accused of a crime the alleged motive for which was a malicious enmity of long growth against her stepmother, with the principal witness against her a woman - the whole case from beginning to end enveloped in a womanly atmosphere, and attended by circumstances of a domestic nature, of which the average woman would instinctively, and simply because she is a woman, be a better judge than an average man - and yet there is not one woman on the jury..."

This was the part I withheld- but for myself, I hadn't really thought of it this way. I have to remenber it was 1893.

[Kat]

I wondered if the remaining quote would influence anyone's vote?

[Yooper]

In order to reach a guilty verdict, the women present on the jury would have to convince the men present of Lizzie's guilt, otherwise it's a hung jury. If the women on the jury based their votes on instinct and circumstances rather than on evidence, that might be difficult, no matter how correct the women might be in their assessment.

[RayS]

It's an interesting question.

It has been said that female jurors tend to be harder on a female defendant than male jurors. If you can accept that men in 1893 couldn't believe that a woman could commit such a crime then that becomes explainable. Women knew better.

In the Borden case there appears to be just too much reasonable doubt to find a guilty verdict. That still doesn't mean she was innocent.

Lizzie was innocent of killing her father because there was no evidence for it, and a witness saw her outside the house that verfied her alibi.

NOTE that she was never charged with obstructing justice, not telling who she saw that morning, if she saw anybody (the testimony suggests she did see someone IMO).

In fact, most of her most vocal supporters were Suffragettes and WCTU!

[bobarth]

I agree that women on the jury would have wanted to find her guilty, but the reality is they would have had to go with the law and there wasn't enough evidence to convict her.

WHY would they do that? You haven't explained!
I once read that women are inclined to convict a beautiful woman, they want to get back at the slights they felt over the years. Especially if she is accused of killing a husband.

WHAT have you read? I'm sure you have no practical experience.

Rays- Why are you so rude and hostile?

[Yooper]

Actually, in my experience, men are more apt to interpret the intent of the law while women are more inclined to use the letter of the law. This is only a generalization and limited to my experience.

[bobarth]

I voted no, Although I think they would have made a huge difference but not enough to affect the verdict to go the other way. I was looking for information on her retrial with Sandra Day O'Conner as one of the presiding judges and another female as a lawyer and she was found not guilty, again. There really was not a lot of evidence to persuade them of Lizzies guilt.

[Kat]

I've been under the impression that the *Re-trial* was just a reennactment and would necessarily find Lizzie not guilty as true to history. The only leeway was in giving the actors their own closing remarks off the cuff so to speak.

I may be wrong- because the audience did vote- and acquitted her.

Does anyone familiar with the video know if it was supposed to have the same outcome as history?

[shakiboo]

Happy Thanksgiving Everyone!!
I voted "no" I think they (the men) had no choice but to find her "not guilty" there just wasn't enough evidence..... so it wouldn't have changed anything, the women would have had to follow the same instructions, and would have had to leave any personal feelings or predjudices out. After all, they had her life in their hands, literally, she could have been put to death, so, evidently there was enough doubt in their minds as to her being guilty. So, I don't believe it would have made a difference, women or men, the facts remain the same.

[1bigsteve]

I voted yes. I believe that having women on the jury would have made it tougher on Lizzie simply because women have a better insight into a woman's behavior. If Lizzie was pulling something I feel the women on the jury would have seen right through it and nailed Lizzie to the wall.

On the flip side, if I were on a jury and the male defendant was pulling something I would nail him to the wall, pronto.

Women investigators would have had a much better chance at finding the hatchet, bloody dress, etc. in my opinion.

-1bigsteve (o:

[Kat]

I just recently read a news item that shocked me. The trial jury foreman told the press that they talked over the case presented every day. They did not give a final opinion to each other tho until they were sent to deliberate.

Was that legal back then?
If it wasn't, it sounds like grounds for a mistrial.
(I bet Harry has read about this!)

...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 agreement previous to entering the jury room yesterday afternoon.--"Foreman Richards" FRWeekly News, 28 June 1893. (sic)
["yesterday afternoon" would be June 20th- paper would be June 21st.]

[Harry]

Yes, Kat. I posted that on this thread:

viewtopic.php?t=1901

It's an interesting item though.

[doug65oh]

That might be the question I looked into awhile back, but I don't recollect offhand - it was several months ago, and the answer I got (from the closest expert I could find, a law librarian based in Massachusetts) really wasn't an answer, but was sort of an answer. I'll see if I can find the question and corresponding materials.

Aha!! There They are... It was - nearly seven months ago. The question I raised was (I thought) rather clear: "... I’m writing today with a question about the history/origin of a specific judicial admonition: That which prohibits discussion or deliberation of evidence presented in a criminal case prior to the close of evidence and judicial instruction upon applicable points of law.

The case I am looking at today was tried in the Superior Courts of the Commonwealth of Massachusetts in 1893. The transcript (as published in 1893) contains no such prohibitive language relative to discussion or deliberation at the close of each trial day. (Today, of course, such admonitions are quite common at any point during trials in Massachusetts and elsewhere.)

So, I am curious to put it mildly, as to the origin and/or history of that judicial instruction. Any information or direction you might provide regarding this inquiry is most appreciated."

The librarian replied with the following rather short squidge drawn from the Indiana Law Journal:

A. The Early Jury
The jury had its origin not in England, but on the Continent. Frankish royalty relied upon local members of the community to respond to summonses to appear before the king to report on local conditions. Called the inquisitio, *1232 citizens participated by informing, not deciding. It was this active model for the jury that was exported to England as a result of the Norman Conquest. [FN7]

The earliest English juries bore a striking resemblance to their counterpart, the inquisitio, at least in terms of composition and activism. Beginning with the reign of William the Conqueror, and for hundreds of years thereafter, juries consisted of neighbors summoned by the sheriff to settle a dispute, not by judgment, but by "declar[ing] the truth" on the basis of their own knowledge. [FN8] Referred to as "the country," [FN9] these jurors were "integrated into the fabric of the proceedings." [FN10] Beginning with the sheriff's call, [FN11] those summoned were expected to investigate the facts if they did not know them; indeed, talking with the parties and among themselves about the case prior to trial was commonplace for jurors. [FN12]

By the late thirteenth century, this form of jury trial had reached its apex. [FN13] At about this same time, the requirement that the juror have prior firsthand knowledge of the case began to be relaxed. Juries began to receive evidence in court and to consider statements in the pleadings and of counsel while retaining the ability to ask questions of the witnesses. [FN14] As time passed, jurors came to rely more and more upon trial testimony and other evidence, and by the sixteenth century use of sworn witnesses was the norm. [FN15] A century or two later, jurors were considered strictly judges of the facts, not witnesses. [FN16] Nevertheless, jurors continued to ask questions of *1233 witnesses without the permission of the court. In fact, juror questions could not be prohibited by the judge, given the jurors' oath to get at the truth. [FN17]
Early juries exercised considerable clout in England, the Magna Carta having enshrined the right to trial by jury in civil and criminal cases. [FN18] Lacking in rules of evidence and other directions from the judge, the jury's rationale was inscrutable. Its verdict was virtually unreviewable, and compared to the judgment of the Divine. [FN19] It is against this tradition of powerful and active juries that the legal and judicial professions began to assert themselves and to impose legal constraints upon powerful and traditionally active juries.

B. The Struggle for Control Over Trials in England
Advocates trained in law did not appear at trials in any great numbers until the fourteenth century, well after jury trials had become commonplace. [FN20] Nor did rules of evidence, directions from the court, or other positive legislation exist to constrain medieval juries. [FN21] The slow, evolutionary change of jurors from witnesses of the facts to judges of the facts [FN22] reduced juror activism. [FN23] While the emerging trial bar may have had a helping hand in this evolution, the bench imposed the first known overt restriction upon juries-the writ of attaint. If the judge disagreed strongly enough with a jury's returned verdict, the judge could use a writ of attaint. The jury would be imprisoned, and the verdict vacated, on the theory that the jurors perjured themselves in their capacities as witnesses. [FN24] As intended, the inhibiting effect upon juries was direct and substantial. As the role of the jury changed, however, this severe *1234 and controversial remedy was used less and less until it was finally abolished in 1670 in Bushell's Case. [FN25]
Although the procedure of attaint was important in that it marked the first major effort at asserting legal control over juries, its use cannot account solely for the change in the role of jurors. The abolition of attaint, which was replaced by the motion for new trial as a means of providing judicial oversight of the jury's verdict, is thought to have substantially reduced juror activism. [FN26] The trend toward hearing most, and soon all, of the evidence in court was accelerated since the judge could only compare the verdict to the evidence if the judge had heard the evidence in court. [FN27]

However, it was the emergence of a professional trial bar, and what followed in the way of rules and procedures for trials, that had the greatest impact on the future role of juries. By mid-sixteenth century, an "elite lawyer class arose, jealous of its prerogatives and insistent on preserving for itself the function of law making and law finding." [FN28] During this time, lawyers' guilds were at their strongest, and "the struggle for control over the jury came to a head." [FN29] Numerous controls over the jury's relative autonomy and activism were put in place by the architects and stewards of an emerging adversary system. Rules of evidence emerged as a way of limiting and controlling the information available to the jury and how it was received. Thus, jurors became dependent on others for facts, "modern courts having learned the method of evidence." [FN30] As the methods of jury selection were refined, [FN31] the practice of challenging jurors for cause arose. [FN32] Case-specific legal instructions and other directions from the judge became commonplace, [FN33] along with *1235 the device of discharging deadlocked juries. [FN34] Appellate review was added, the effect of which was to further control jury action. [FN35]

68 Ind. L.J. 1229 (1993), *1231 -1235
---------
So there it is - an answer that really isn't an answer, though it does give some dandy background on juries generally.

[Kat]

Whew! I read the whole thing! I'm a good girl, I am!
(My Fair Lady).

Anyway, it sounds from this that the lawyers took over!

Thanks DougOh.

BTW: I guess the wrong date is on the Weekly News item. It couldn't be the 28th of June.
That was also a good link, thanks Har.