Lizzie Borden Society Forum

I read somewhere and can't remember exactly where that Lizzie's Inquest testimony was not allowed at trial. Not knowing much about trial procedures, is it usually included? If so what was the reason they would not use hers.

It's a bit of a muddy issue but if I recall correctly Jennings argued that the inquest testimony be excluded from evidence presented at New Bedford because at the time Lizzie testified during the inquest, she did so without (to use a modern phrase) effective assistance of counsel.

It is complicated. If you read the trial at page 774a+ all the way to page 830, there are the cases cited arguing for and against admitting the inquest testimony. It's over 50 pages.

The decision tho, page 830 & 831 =

MASON, C. J. The Justices will withdraw for consultation upon the question raised.

(At 11.16 A.M. the Court withdrew, and the prisoner was returned to the court room.)

(The Court returned to the bench at 12.38 P.M.)

Page 830

MASON, C. J. The propriety of examining the prisoner at the inquest, and of all that occurred in connection therewith, is entirely distinct from the question of the admissibility of her statements in that examination. It is with the latter question only that this Court has to deal.

The common law regards this species of evidence with distrust. Statements made by one accused of crime are admissible against him only when it is affirmatively established that they were voluntarily made. It has been held that statements of the accused as a witness under oath at an inquest before he had been arrested or charged with the crime under investigation, may be voluntary and admissible against him in his subsequent trial, and the mere fact that at the time of his testimony at the inquest he was aware that he was suspected of the crime does not make them otherwise. But we are of opinion both upon principle and authority that if the accused was at the time of such testimony under arrest, charged with the crime in question, the statements so made are not voluntary and are inadmissible at the trial.

The common law regards substance more than form. The principle involved cannot be evaded by avoiding the form of arrest if the witness at the time of such testimony is practically in custody. From the agreed facts and the facts otherwise in evidence, it is plain that the prisoner at the time of her testimony was, so far as relates to this question,

Page 831

as effectually in custody as if the formal precept had been served; and, without dwelling on other circumstances which distinguish the facts of this case from those of cases on which the Government relies, we are all of opinion that this consideration is decisive, and the evidence is excluded.

At times I believe that a witness's inquest testimony is used as evidence in a trial. I have a silly question though, would the inquest testimony be similar to a witness deposition?

Well yes...but no. The big difference between the two is that a deposition would be the product of an extrajudicial proceeding. All you need for a depositon is a witness, his or her attorney (I'm thinking in modern terms here) and someone empowered to administer legally-binding oaths, like a notary.

Thanks for all that typing Kat. After reading it slow, the way I understand it was that she was charged with the crime already so what she said the judge felt was not freely given. I have to say when I read it there were a couple of things she said that would make me wonder about her credibility. I have read other places that she had said she was looking for lead for sinkers. On page 128 (35) she said she was looking for a piece of iron. On page 150 (57) she said she was looking for a piece of tin or iron to fix her screen & window. On page 74 (31) she said she saw some pieces of tea lead. She was asked it she saw any foil, the same used on tea chests, she said no. She was asked if she saw any tea chest lead, she again answered no. It seems alot over a small piece of metal, but when I read it there also seemed to be alot of confusion (?) on Lizzie's part. I do have to ask : what is tea chest lead? I've never heard of this before.

I "olden days," tea,, a precious and expensive commodity, was shipped across oceans in chests lined with lead foil, said to preserve the quality of the tea.

I, for one, wonder if anyone was ever poisoned by this process (?)

Robinson presented a seven point (altho his numbering was mixed up & it reads like only 6) argument which was basically an 1893 "Miranda Rights" type of argument. Lizzie was in essence under arrest at the time of her Inquest (they were all under a kind of house arrest from the time of the murders, the house surrounded by police). Mayor Coughlin had admitted she was under suspicion when he & Hilliard paid their visit to the house on the Saturday night. Lizzie was not allowed to have her lawyer Andrew Jennings with her at the Inquest. The police had already issued a warrant for her arrest (altho not served) BEFORE she even gave her Inquest testimony, etc etc etc.

The purpose of an Inquest is to prove a crime has been committed, but with Lizzie it was more like an attempt to get a confession out of her.

Quite frankly, Robinson was 100% correct & the Inquest testimony should have been inadmissable. It was a human rights violation against Lizzie.

Fall River police were very inexperienced in murder & made a lot of mistakes with this case. Lizzie was very lucky.

If she gave inquest testimony with her lawyer present, and after that point a warrant was issued for her arrest, then that testimony would have been heard. I see how they tried to really trick her into confessing to the crime. It's starting to all make sense. However why was she "Not Allowed" to have her lawyer present. If she wanted him there (at this time in history), could they refuse to let him be there?

Hi William, thanks for the answer. I didn't know that was how they shipped tea. Even if they wrapped the tea, then put it in this chest being lined with a lead foil I'm sure some of the tea had to absorb some of the lead. It must have kept everything very dry but still knowing what we do about lead I'm also surprised people weren't affected by it.

If she gave inquest testimony with her lawyer present, and after that point a warrant was issued for her arrest, then that testimony would have been heard. I see how they tried to really trick her into confessing to the crime. It's starting to all make sense. However why was she "Not Allowed" to have her lawyer present. If she wanted him there (at this time in history), could they refuse to let him be there?

Well they could have refused, of course. But had they done that, Jennings, Robinson and Co. could have come back with a direct assertion of her right to legal counsel. We think of it in modern terms as one of the Miranda rights, but right of counsel had been in force for just over a century at the time of Lizzie's arrest - since December, 1791.

I started to read "Fourty Whacks"again. I put it down when I first started it so I could read Lizzie's inquest. I got to page 46 and it is talking about how Knowlton & Hilliard knew they wanted and needed more information before the warrant was served. It says at first they didn't call it an inquest, they called it an "informal examination" of various witnesses. (quoting from the book) Lizzie's attorney, Andrew Jennings, knew better. She already under house arrest and had been told she was suspected of committing the murders. when she was served a summons ordering her to be present at the meeting, he asked to represent his client. At this point, Knowlton admitted the meeting was an inquest, and Jennings [glow=red][/glow]was refused admittance and asked to leave. [glow=#444444][/glow] Massachusetts Attorney General Albert Pillsbury had put himself into the case, and it is safe to say he advised Hilliard and Knowlton they could not carry off the subterfuge. A few pages later Lizzie shows up on Tues. at 2PM to answer questions, which continued for quite a few days, through this her lawyer is not mentioned. Afterward (on pg 63) Knowlton goes to Hilliard's office and has a new warrant written out with a new date to make it look like she was not under duress when questioned. (Couldn't someone have done something about this--it just seems so not right!) From there they go to Att. Jennings home & asked if he wanted to be present when they arrest her. They proceed to Lizzie's house to arrest her. Why did Jennings advise Lizzie to "Waive the reading"? The next page (#64) says that the warrant was only issued for murdering Andrew, it made no reference to Abby. Was this changed after to include both? That's as far as I got in the book so far. Also I didn't realize that not only was Fall River and the east coast watching this trial but the whole world was watching also. This is the first book that I'm reading so I don't know how accurate this account of events actually is. From reading the forum it seems that alot of the books have inconsistentsies. How is the realiability on this one?

I was trying to change the color of the print in the above post, but messed it up, sorry for the confusion.

I made a mistake in the above post. They didn't go to Lizzie's house to arrest her. She was still in the matron's quarters at the courthouse.

Nadzieja @ Fri Oct 05, 2007 8:14 pm wrote:This is the first book that I'm reading so I don't know how accurate this account of events actually is. From reading the forum it seems that alot of the books have inconsistentsies. How is the realiability on this one?

Forty Whacks is one of the better ones overall, IMO.

However, Kent is very pro-Lizzie & makes the argument for Lizzie being innocent. The author is very selective and leaves out much of the evidence for Lizzie's guilt. He conveniently ignores a great deal. His quotes from the trial, etc are incomplete and things are rearranged in order to suit his agenda.

This was one of the 1st books I read & it fed my early hopes that Lizzie was NOT guilty. However, after reading a LOT more, I re-read Kent & found all the holes in his book. I ended up being pretty ticked at how he manipulated the facts.

I still love his Sourcebook, however. That is his real contribution to Bordenia, IMO---assembling all those long lost newspaper articles, etc for us to enjoy.

Thank you for the input. I'm getting the impression that alot of the books (which I have acquired quite a few) have some degree of inaccurracy. However I'm still going to read them. It seems everyone loves Lizzie Borden Past & Present by Len Rebello. I'm still trying to get a copy. They are few & far between and some have shown up a little beyond my price range. However I won't give up hope, someday I'll get lucky. I bought the trial transcripts which I will eventually read. My goodness I think I have reading material for the next 10 years, that's ok I plan on enjoying the journey. If anyone can suggest what I should read next please feel free to send suggestions.

The GLOW feature doesn't work. I'm not even sure what it is.

I don't think Knowlton knew of the arrest warrant when he questioned Lizzie. I think he found out later and had the police swear out a new one the day they did arrest Lizzie.
(And get rid of the old one.)

If Lizzie went into a secret inquest with her lawyer- he'd probably tell her to say nothing and then ther'd be no testimony at all to rule inadmissable.

And yes, Lizzie was arrested while still at the jail/courthouse on the evening of the day of her last questioning. She was only charged with killing Andrew- correct. It wasn't until the grand jury that she was indicted for killing Andrew and Abbie separately and then both together.

In The Hatchet, "Lizzie Borden In Black & White"- past free issue, I wrote a timeline of the inquest: pgs. 34-36

Here it is- free download:

http://www.hatchetonline.com/HatchetOnline/index.htm

Thanks Kat, it is a really funny coincidence, but I bought that back issue because (and I don't remember where) I read that was the only time that Emma talked about the case. I just looked it up and you wrote that article also. I just love that magazine and will also read this one cover to cover. I've learned not only about Lizzie but alot about the history of Fall River.

Does anyone know the reason that at first Lizzie was only charge with Andrew's murder? and why did they change it after the grand jury? You would think that seeing they were found at the same residence that they would have charged her with both.

In the end she was charged with 3 counts; one for Andrew, one for Abby, and another for both.

I think as head of the household Andrew was the convenient catch-all at the start. Very sexist, but it was 1892.

I understand one for Andrew & one for Abby. Why would they issue one for both? Isn't it basically the same thing?

Well, yes...and no. But indictments like that are fairly common, even today. Several arguments could be made in favor of "blanket counts" like that; and they're perfectly legal.

doug65oh @ Tue Sep 25, 2007 5:23 pm wrote:It's a bit of a muddy issue but if I recall correctly Jennings argued that the inquest testimony be excluded from evidence presented at New Bedford because at the time Lizzie testified during the inquest, she did so without (to use a modern phrase) effective assistance of counsel.

But didn't Lizzie give her testimony willing? I mean didn't she waive her right for a lawyer?

Nadzieja @ Fri Oct 12, 2007 9:16 pm wrote:I understand one for Andrew & one for Abby. Why would they issue one for both? Isn't it basically the same thing?

They are covering all the bases, as Doug-Oh says.
In The Knowlton Papers Knowlton asks Pillsbury- The Boss- if he should also give instruction to the grand jury about being an accessory.

Edit here: A friend has brought to my attention that this letter is From Pillsbury (still The Boss) To Knowlton. Also the early phrase: "under the Robinson doctrine" is struck out in the original.
Thanks!
Anyone can always check me anytime, please.

#HK093
ATTORNEY GENERAL'S DEPARTMENT,
COMMONWEALTH BUILDING,

Boston, Nov. 21, 1892.
Dear Mr. Attorney:-
As under the Robinson doctrine, I see no possible doubt that the
whole transaction can be put in evidence in a trial for the killing of either,
I incline, on reflection, toward two indictments, if there are to be any.
Has it ever occurred to you to put in a count or counts as accessory before & after?
There is, to be sure, no affirmative evidence, at present, that any other person was concerned,
but a great many people believe that she was in it,
but that hers was not the hand that did it. I could easily believe this if there were any evidence of it.
Perhaps one indict for killing both & others for killing each will be best of all.

I write these suggestions now as they occur to me, and as you will have
time to think of them. I wish the investigation just begun in the other
line to be thoroughly, and, if possible, exhaustive, chiefly for the satisfaction of my own mind,
as I doubt if it develops anything of consequence for any other purpose.

Very truly yours,
Attorney General.
Hon. H. M. Knowlton

I can understand the reasons for the three counts, if it could be proven that either Abby or Andrew was killed by Lizzie, and further proven that it was impossible to have killed one without having killed the other, then it would be unnecessary to irrefutably prove guilt for the other murder. It would cover the base where there is undeniable evidence for one murder and less compelling evidence for the other.

What I'm struggling with is why being under arrest would have a bearing on answers given during fact-finding at the inquest.