Dewey’s charge would create several substantial problems today. The principal issue is not that it was old-fashioned; it is that substantial portions read like a second defense closing argument rather than neutral instructions from the court.
The charge also contains at least one apparent legal misstatement serious enough to require immediate correction.
1. Dewey repeatedly argued the facts for the defense
Dewey began by accurately stating the governing Massachusetts rule:
“The Court shall not charge juries with respect to matters of fact, but may state the testimony and the law.”
He further explained that the statute was intended to prevent judges from expressing opinions concerning “the credibility of witnesses or the strength of evidence.” Trial, Volume II, pp. 1885–1887.
That statutory rule remains essentially unchanged today:
“The courts shall not charge juries with respect to matters of fact, but they may state the testimony and the law.”
Massachusetts General Laws, c. 231, § 81. ([Massachusetts Legislature][1])
But Dewey then repeatedly directed the jury toward defense-favorable interpretations of disputed evidence.
On Lizzie’s remarks to Alice Russell, he asked:
“Would he naturally, probably, predict, a day or two before hand, that anything of the nature of that crime would occur?”
He then framed the alternatives:
“Is the reasonable construction to be put upon that conversation that of evil premeditation, dwelt upon, intended, or only of evil fears and apprehensions?”
Trial, Volume II, p. 1923.
That is not merely summarizing the testimony. It supplies a defense argument: that a person contemplating murder would probably not predict trouble beforehand, and therefore Lizzie’s statements were more naturally expressions of fear.
On the dress evidence, Dewey asked whether the witnesses’ descriptions were sufficiently consistent to identify any particular dress. On the Reagan controversy, he suggested that respectable men and clergymen probably would not have sought a retraction unless they had first satisfied themselves that the published claim was false. Trial, Volume II, pp. 1923–1925.
The cumulative problem is considerable. The judge was not simply identifying issues; he was providing the jury with defense-favorable reasoning about how those issues should be resolved.
Modern Massachusetts judges must perform judicial duties impartially and without words or conduct manifesting bias or prejudice. ([Massachusetts Government][2])
Today, the prosecution would have strong grounds to object that the judge was commenting improperly on the weight of the evidence and effectively advocating for the defense.
2. The instruction on deliberate premeditation contains an apparent reversal of the law
The published transcript says:
“The killing must be the result of a plan or purpose to kill unlawfully, formed without reflection and deliberation by the guilty party.”
Trial, Volume II, p. 1889.
The word “without” makes the sentence internally contradictory. Deliberately premeditated murder requires the intention to kill to be formed through at least some process of deliberation, even though that process may occur rapidly. “Formed without reflection and deliberation” describes something closer to an impulsive intent.
Dewey immediately surrounded that sentence with substantially correct language:
“The words ‘deliberately premeditated’ mean that the wrongful intention to kill must have been formed before the act of killing.”
And:
“It is enough if there was a clear intent to kill formed before the act of killing.”
He concluded that premeditation meant “the design to do it was first formed and after that was carried out.” Trial, Volume II, pp. 1889–1890.
Therefore, the charge as a whole partly corrects the defective sentence. But the published transcript unquestionably contains “without reflection and deliberation.”
There are two possible explanations:
A. Dewey actually misspoke.
If so, a modern prosecutor should request an immediate correction. Failure to correct it could become a serious appellate issue after a conviction because the mistake concerns an element distinguishing deliberate-premeditation murder from other forms of homicide.
B. The word “without” is a stenographic or transcription error.
That is plausible given the surrounding sentences, but it cannot be established from this transcript alone. It should therefore be described as an apparent error in the published record, not automatically attributed to Dewey’s intended instruction.
Current Massachusetts homicide instructions require the Commonwealth to prove deliberate premeditation and the other elements beyond a reasonable doubt. ([Massachusetts Government][3])
3. Dewey treated the presumption of innocence as variable evidence
Dewey told the jury:
“This legal presumption of innocence is to be regarded by the jury in every case as matter of evidence to the benefit of which the party is entitled.”
He then continued:
“The law does not undertake to fix or measure the force of this presumption in this case by any formal or arbitrary rule, but leaves it to your just and intelligent judgment. It may vary in different cases, its force being strengthened amongst other things by the character and previous way of life of the defendant.”
Trial, Volume II, pp. 1890–1891.
That is not how the presumption is ordinarily explained today. The current Massachusetts model states:
“The presumption of innocence stays with the defendant unless and until the evidence convinces you unanimously as a jury that the defendant is guilty beyond a reasonable doubt.”
The presumption is a fixed legal protection. Its “force” is not weighed and increased or decreased according to the defendant’s character. Admissible character evidence may separately contribute to reasonable doubt, but it does not enlarge the legal presumption itself. ([Massachusetts Government][4])
Dewey’s formulation was highly favorable to Lizzie because he connected her religious and charitable reputation directly to the strength of the presumption. Today, that portion would almost certainly be rewritten, and the prosecution could reasonably object to it.
4. His treatment of circumstantial evidence imposed an unusually heavy burden on the prosecution
Dewey instructed:
“Every fact which in your judgment is so important and essential that without it the conclusion of guilt could not be reached must itself be proved beyond reasonable doubt, must be proved by the same weight and force of evidence as if it were the main fact in issue.”
Trial, Volume II, p. 1900.
He also said that circumstantial evidence must produce “a reasonable and moral certainty that the defendant and no one else did commit” the crimes. Trial, Volume II, p. 1907.
Modern Massachusetts law focuses the beyond-reasonable-doubt requirement on the elements of the offense and the ultimate conclusion of guilt. It does not generally require every subsidiary fact or every inference in the evidentiary chain to be proved independently beyond a reasonable doubt. Current instructions also emphasize that direct and circumstantial evidence are both permissible forms of proof. ([Massachusetts Government][5])
Part of Dewey’s instruction can be defended: if a particular fact truly is logically indispensable to proving an element, reasonable doubt about that fact would necessarily produce reasonable doubt about guilt. But his categorical language could cause jurors to demand proof beyond reasonable doubt for individual pieces of evidence rather than evaluating whether the complete evidence proves each required element.
Today, the instruction would at least require clarification and probably correction.
5. He supplied possible exculpatory explanations that were not evidence
The note discussion is particularly conspicuous. Dewey asked the jury to consider whether an unknown murderer might have used a note to lure Abby and then removed it:
“Might it not be a part of the plan or scheme of such a person by such a document or paper to withdraw Mrs. Borden from the house?”
And:
“Might he not have found the letter or note with her, if there was one already in the room? Might he not have a reasonable and natural wish to remove that as one possible link in tracing himself?”
Trial, Volume II, pp. 1903–1904.
That theory was possible in an abstract sense, but there was no evidence that an outsider wrote the note, used it to lure Abby, found it on her, or removed it after killing her.
A defense lawyer could argue that possibility, subject to the permissible boundaries of inference. It is considerably more problematic for the trial judge to originate or reinforce it while instructing the jury. The judge’s institutional authority gives the hypothetical a weight that counsel’s advocacy does not possess.
This would be one of the strongest grounds for a modern prosecution objection.
6. The instruction on Lizzie’s failure to testify began correctly, then became advocacy
The legally sound core was emphatic:
“Any argument, any implication, any suggestion, any consideration in your minds, unfavorable to defendant based on her failure to testify is unwarranted in law.”
Trial, Volume II, p. 1916.
That principle remains correct. The current Massachusetts model prefers the precise phrase “no adverse inference.” ([Massachusetts Government][6])
The problems are what Dewey added.
He described Lizzie as:
“A witness incompetent.”
And instructed the jurors to consider the case:
“As if the defendant had no right whatever to testify.”
That reflected the technical structure of the 1892 statute: an accused became competent only by requesting to testify. It would be inaccurate today because a defendant is legally competent to testify but possesses the constitutional right not to do so.
More significantly, Dewey effectively supplied an imagined explanation in Lizzie’s voice:
“The defendant may say, ‘I have already told to the officers all that I know about this case, and my statements have been put in evidence; whatever is mysterious to others is also a mystery to me. I have no knowledge more than others have. I have never professed to be able to explain how or by whom these homicides were committed.’”
Trial, Volume II, p. 1917.
That is far beyond a neutral no-adverse-inference instruction. Dewey put before the jury a first-person exculpatory narrative that Lizzie had not delivered under oath and could not be cross-examined about.
Today, the judge would normally say only that the defendant had an absolute right not to testify, that the jury must not discuss or consider that decision, and that no adverse inference may be drawn from it. Dewey’s imaginary statement would be highly objectionable.
7. The gender stereotyping would be inappropriate today
In discussing Lizzie’s alleged remarks about Abby, Dewey said:
“Remembering that it is the language of a young woman and not of a philosopher or a jurist.”
He then asked:
“What, according to common observation, is the habit of young women in the use of language? Is it not rather that of intense expression, whether that of admiration or dislike?”
Trial, Volume II, p. 1894.
This told the jury that young women characteristically exaggerate and therefore that Lizzie’s hostile statements should perhaps not be taken literally.
That is a generalized sex-based stereotype supplied by the judge. It was favorable to Lizzie, but its direction does not cure the problem. Modern judicial-conduct rules prohibit judges from manifesting bias or prejudice through words or conduct, including prejudice connected with sex or gender. ([Massachusetts Government][7])
Dewey also asked whether the manner and force of the killings were:
“Favorable to the contention that a person of the defendant’s sex and size was the assailant.”
Trial, Volume II, p. 1908.
Size, strength, reach, and physical capability can be legitimate evidentiary questions. “Sex” as a generalized proxy for incapacity is considerably more questionable. A modern instruction would focus on the actual physical evidence and the defendant’s demonstrated characteristics, not assumptions about women.
8. The joint-participant instruction was legally possible but procedurally awkward
Dewey introduced joint liability by saying that it was:
“A view, so far as I remember, not suggested in the opening, or in the evidence, or hardly in the closing argument for the Commonwealth.”
Trial, Volume II, p. 1914.
He nevertheless instructed that Lizzie could be convicted if another person committed the killings while she knowingly aided, encouraged, or stood ready to assist under an agreement. Trial, Volume II, pp. 1914–1915.
The legal doctrine itself was not improper. A defendant charged as a principal may generally be convicted on a properly supported joint-venture theory.
The problem is Dewey’s own acknowledgment that the theory had scarcely been presented and apparently lacked a clear evidentiary basis. Today, a judge should not instruct on a theory unsupported by the evidence. A late and materially different theory can also create notice and fairness concerns.
This portion was one of the few parts of the charge potentially favorable to the prosecution, but Dewey immediately weakened it by emphasizing that the Commonwealth had essentially tried the case on the theory that Lizzie personally wielded the weapon.
9. The religious conclusion would be avoided today
Dewey ended:
“We can hope that, in some high sense, this trial may be adopted into the order of Providence, and may express in its results somewhat of that justice with which God governs the world.”
Trial, Volume II, p. 1927.
That language was conventional in many nineteenth-century courtrooms. Today it would be regarded as unnecessary and potentially inappropriate. A judicial charge should direct jurors to the law and evidence, not suggest that their verdict participates in divine governance.
Standing alone, it probably would not invalidate a verdict. It contributes, however, to the general impression that Dewey’s charge was rhetorical and moralistic rather than restrained and juridically neutral.
What was acceptable in the charge
Several major parts were legally sound or substantially consistent with modern practice:
Dewey correctly instructed that the Commonwealth carried the burden of proof and that Lizzie had no burden to explain the mystery.
He correctly stated that mere suspicion or even a strong probability was insufficient.
He correctly required separate findings on the two murder counts.
He correctly instructed that the verdict must be unanimous.
He correctly instructed that no adverse inference could be drawn from Lizzie’s failure to testify.
His use of “moral certainty” would not automatically make the charge defective in Massachusetts when read in the full context of a proper reasonable-doubt explanation. Modern language is generally clearer and less archaic, but the phrase itself is not necessarily fatal.
Bottom line
The charge would be a serious problem today, chiefly because Dewey repeatedly crossed from explaining the law into arguing disputed facts for Lizzie.
The most consequential passages are:
1. The apparent statement that premeditation could be “formed without reflection and deliberation.”
2. The repeated defense-favorable rhetorical questions about the note, presentiment, dress, police cooperation, and Reagan statement.
3. The imaginary first-person explanation Dewey supplied for Lizzie’s failure to testify.
4. The treatment of the presumption of innocence as variable “evidence” strengthened by Lizzie’s character.
5. The sex-based generalizations about “young women.”
A modern prosecutor would likely make repeated objections and request corrective instructions before deliberations. If similar instructions contributed to a conviction, they could create substantial appellate issues for the defendant. Here, however, the errors overwhelmingly favored Lizzie, and the jury acquitted her; an acquittal ordinarily cannot be overturned and retried merely because the judge’s instructions favored the accused.
[1]:
https://malegislature.gov/Laws/GeneralL ... hatgpt.com "General Law - Part III, Title II, Chapter 231, Section 81"
[2]:
https://www.mass.gov/lists/supreme-judi ... hatgpt.com "Supreme Judicial Court Rule 3:09: Code of Judicial Conduct"
[3]:
https://www.mass.gov/doc/superior-court ... hatgpt.com "SUPREME JUDICIAL COURT MODEL JURY ..."
[4]:
https://www.mass.gov/doc/2160-presumpti ... hatgpt.com "2.160 Presumption of Innocence; Burden of Proof; Unanimity"
[5]:
https://www.mass.gov/doc/2240-direct-an ... hatgpt.com "2.240 Direct and Circumstantial Evidence"
[6]:
https://www.mass.gov/doc/3600-defendant ... hatgpt.com "3.600 Defendant Does Not Testify"
[7]:
https://www.mass.gov/supreme-judicial-c ... hatgpt.com "Rule 2.3 Bias, prejudice, and harassment"
