Evan Hunter - Lizzie

“I am bound to say, I hope with no unnecessary reflection, that this must have been with the knowledge of the law officer of the Commonwealth at that time in charge of the case. At all events, we must reasonably know that had the law officer advised against it, or directed otherwise, it would never have been done. So that, without its purpose being intended, it was in fact a colorable evasion of the law, and it might operate to deprive this defendant of the rights that are sacredly guaranteed to her in the constitution of this Commonwealth.

“We hear the Constitution of Massachusetts read, and it passes glibly over the tongue and in and out the ear, and until somebody finds necessity to plant his root upon that Constitution, he fails perhaps to recognize its strength and safety. Lizzie Borden stands upon that venerable instrument today, the Bill of Rights, and she reads in it, ‘No subject shall be compelled to accuse or furnish evidence against herself.’ What was written when Massachusetts was born. That was the instinct of the hour. That has been the spirit of our Commonwealth’s liberty ever since. Shall it be attempted by evasion to circumvent it or to overreach a defendant? And when the Constitution of the United States was drawn, in ran a similar phrase upon this point: ‘No person shall be compelled in any criminal case to be a witness against himself.’

“The shield of the state and the shield of the nation are her protection in this hour. If I have given the Court emphasis on it, it is hers rather than mine. I stand by these rights which are hers by the Constitution, and to depart from their preservation will be peril, not alone to her, but to everybody hereafter who may be placed in a similar position, and who may desire to find the Constitution his protection.”

He stared in silence at the bench for a moment, and then walked back to where Jennings and Adams sat at the defense table. Jennings nodded almost imperceptibly. At the table beside them, Moody studied a sheet of paper Knowlton handed him, put the paper down and then rose and approached the bench.

“May it please Your Honors,” he said, “I have very little to say in reply. I could not help being reminded — as I heard what my friend is pleased to term his argument — a remark of a French general on the charge of the Light Brigade, which I may make suitable to this occasion. I say of the argument generally, ‘It is magnificent, but it is not law.’

“I have been trying to find out throughout this discussion precisely what the learned counsel means. And so far as I can understand his position, it is that Lizzie Borden’s testimony at the inquest is not admissible because it is not admissible. And that declaration is surrounded by a good many vocal gymnastics and fireworks, but so far as any statement of law or citation of opinion upon this question is concerned, I have not seen any. There is not, if I have followed the argument correctly, a single case cited anywhere of an exclusion of such declarations of this sort unless it was when a person testifying at the time was actually under arrest. Not a single case.

“Let us go back a moment to the date of this inquest in order to understand exactly the position of the facts. These two people, Mr. and Mrs. Borden, had been murdered in their house by someone. That, I agree, was a matter so clear that it did not require an inquest to determine. Our statutes then required certain things to be done.

“The first step was the view and personal inquiry of the medical examiner. If he then should be of opinion that the death was caused by violence, he has done his duty. Then the matter, by his report, is referred to the District Court or the district attorney for investigation. Not whether there was a death by violence — because the medical examiner determines that — but, assuming that to be true, how was that violence committed, and by whom? And all the eloquence that has been wasted upon that subject depends entirely upon a misunderstanding of the law.

“It was the duty of the Court to do that very thing, to inquire whether this was a death by violence, whether it was a death of violence by human design, when the death occurred, by whom it occurred. And in doing that very thing, the Court was performing the duty which was imposed upon it by the law of this Commonwealth.

“Now then, a step further. Lizzie Borden is summoned. She appears. She appears by counsel learned in the law — friend and counsel both, I may say. A counsel, at least, in whom she well might place great confidence. Counsel asks the privilege of being present at the inquest. It is entirely beyond precedent in this Commonwealth, and the district attorney and the Court — in accordance with almost unbroken precedent — declined that privilege. Declined it because the law expressly gives them the power to decline it. She is there. She is not cautioned before the magistrate, but her counsel is told before she goes in to testify that he may confer with her in respect to her rights as a witness, and the stipulation says that he then did confer with her.

“Now we are looking at the substance of the thing. At the common sense of the thing. And the substance and the common sense of the thing is, Your Honors, that a caution delivered by her friend and counsel without the surroundings of the Court, without her being in the presence of strangers, would be very much more effectual to inform her of her full rights than any caution by the magistrate or the district attorney could be. And Your Honors can have no doubt that the reason why the caution was omitted at the beginning of her testimony was because that subject had been thoroughly talked over between counsel and client, and she knew and understood her rights.

“And after she’d had the opportunity of talking with her counsel, after — and I think if we can presume some things about the district attorney, we can presume some things about as learned a lawyer as brother Jennings is. And we can presume that he informed her that she would have the right to decline to testify upon a single ground, otherwise she must be obliged to go in there and testify what she knew about the matter. She could only decline to testify upon the ground that it would incriminate herself.

“And can Your Honors have any doubt that after she had talked with Mr. Jennings in reference to her rights thereto, that she went in with a full consciousness that she had a right to decline at the beginning, at the middle, or at the end? And that when she went in there, she testified as a voluntary witness in every possible sense of the word, legal or otherwise?

“What, precisely, does this word voluntary mean? It means this: if a witness, having the privilege to decline to answer upon the constitutional ground that it will tend to incriminate him, does not exercise that right of declination, and testifies, then the testimony is voluntary within the meaning of the law. And in that point of view, there was nothing that occurred here that was not voluntary.

“I do not think there is anything else upon this subject in which in any respect I could aid Your Honors. I say that as there is no case to be found, none has been cited, anywhere over the length and breadth of this land or in England, as to an exclusion of the testimony Lizzie Andrew Borden gave at the inquest in Fall River, it should be admitted.”

Moody went back to sit beside Knowlton. The three justices carried on a hushed conversation for what seemed an extraordinarily long time. Robinson felt suddenly hotter than the heat of the day warranted.