Evan Hunter - Lizzie

“If these supposed facts should be found by you to be real facts, you could not say upon the evidence that defendant’s guilt was to a moral certainty proved. So you see that in estimating the force of different facts, or portions of the evidence it is not enough to consider them as standing apart, for the force which they appear to have when looked at by themselves, may be controlled by some other single fact.

“When was Mrs. Borden killed? At what time was Mr. Borden killed? Did the same person kill both of them? Was defendant in the house when Mrs. Borden was killed? Was she in the house when Mr. Borden was killed? In this connection you will carefully consider any statements and explanations of defendant put in evidence by the Government and shown to have been made by defendant at the time or afterwards, as to where she was when either of them was killed, and all other evidence tending to sustain or disprove the truth and accuracy of these statements.

“Did other persons, known or unknown, have an equal or a practical and available opportunity to commit these crimes? Is there reason to believe that any such person had any motive to commit them? Is there anything in the way and manner of doing the acts of killing, the weapon used, whatever it was, or the force applied, which is significant as to the sex and strength of the doer of the acts?

“For instance, the medical experts have testified as to the way in which they think the blows were inflicted on Mrs. Borden, and as to what they think was the position of the assailant. Are those views correct? If so, are they favorable to the contention that a person of defendant’s sex and size was the assailant? Is it reasonable and credible that she could have killed Mrs. Borden at or about the time claimed by the Government, and then with the purpose in her mind to kill her father at a later hour, have gone about her household affairs with no change of manner to excite attention?

“Several witnesses called by the Government have testified to statements said to have been made by defendant in reply to questions asked, I believe in each instance, as to where she was when her father was killed, and considerable importance is attached by the Government to the language which it claims was used by her as showing that she professed not only to have been in the barn, but upstairs in the barn. And the Government further claims it is not worthy of belief that she was in the upper part of the barn, as she says, because of the extreme heat there and because one of the officers testifies that on examination they found no tracks in the dust on the stairs and flooring. Now what statements on the subject the defendant did make and their significance and effect is wholly for you upon the evidence, and there is no rule of law to control your judgment in weighing that evidence.

“But here, gentlemen, I may repeat to you the language of a thoughtful writer on the law, not as binding upon you, but as containing suggestions useful to be borne in mind in dealing with this class of evidence. He says, ‘With respect to all verbal admissions it may be observed that they ought to be received with great caution. The evidence, consisting as it does, in the mere repetition of oral statements, is subject to much imperfection and mistake.’

“Gentlemen, it will be for you to judge whether that extract which I read — which I say I give to you in the way of suggestion and not as a binding authority — expresses a reasonable principle, a principle that is wise and safe and prudent to be acted upon in such a case as this. Whether there is not more danger of some misunderstanding, some inaccuracy, some error creeping into evidence when it relates to statements than there is when it relates to acts. Would you not hold that it was a just and reasonable view to take that if a party is to be held responsible in a case like this largely upon statements, that those statements should be most carefully and thoroughly proved?

“Now the Government has called as witnesses some gentlemen of scientific and medical knowledge and experience, who are termed experts, and there has been put into the case considerable testimony from them. I think I may say to you that expert testimony constitutes a class of evidence which the law requires you to subject to careful scrutiny.

“It often happens that experts testify to what is in substance a matter of fact rather than of opinion. A surveyor called to prove the distance between two points may express his opinions founded on his observation, or he may say, ‘I have actually applied my measuring chain and found the distance’. So, for instance, Professor Wood may say, ‘There are, in science, tests of the presence of blood as fixed and certain as the surveyor’s chain is of distance. I have applied those tests to supposed bloodstains on a hatchet, and I find no blood’. This testimony may be regarded as little a matter of opinion as the testimony of a surveyor.

“On the other hand, if Professor Wood shall be asked to testify as to the length of time between the deaths of Mr. and Mrs. Borden, from his examination of the contents of the stomachs, his testimony must perhaps be to some extent a matter of opinion, depending possibly on the health and vigor of the two persons and constitutional differences; upon whether they were physically active after eating, or at rest; upon whether one or the other was mentally worried and anxious, or otherwise.

“Now his knowledge and skill may enable him to form an opinion upon the subject with greater or less correctness; but the question to be dealt with is by its essential nature different from the other. If you should accept his testimony as correct and satisfactory on the first subject, it would not necessarily follow that you should on the second.

“So as to whether certain wounds in the skull were caused by a particular hatchet head or could have been caused by that hatchet head only, if you have the hatchet head and the skull you may think you can apply them to each other and judge as well as the expert. I call your attention to the subject in this way to make clear to you, first, that you are not concluded on any subject by the testimony of the experts, and, second, that it is important to apply to their testimony an intelligent and discriminating judgment.

“Gentlemen, we have given our attention to particular aspects of this case and of the evidence. Let us look at it broadly. The Government charges the defendant with the murder of Mr. and Mrs. Borden. The defendant denies the charges. The law puts on the Government the burden of proving beyond reasonable doubt every fact necessary to establish guilt. The defendant is bound to prove nothing. The law presumes she is innocent.

“The case is said to be mysterious. If so, the defendant cannot be required to clear up the mystery. There is no way, under the law, by which the burden of proof as to any essential matter can be transferred to her. The Government offers evidence. She may rest on the insufficiency of that evidence to prove her guilt, or she may also offer evidence partially to meet or rebut it, or raise a reasonable doubt as to any part of the Government’s case. You are not to deal with the evidence in a captious spirit, but to allow it to produce on your minds its natural and proper effect.

“In such a case as this, or in any case, you cannot be absolutely certain of the correctness of your conclusions. The law does not require you to be so. If, proceeding with due caution and observant of the principles which have been stated, you are convinced beyond reasonable doubt of the defendant’s guilt, it will be your plain duty to declare that conviction by your verdict. If the evidence falls short of producing such conviction in your mind, it would be your plain duty to return a verdict of not guilty. If not legally proved to be guilty, the defendant is entitled to a verdict of not guilty. The law contemplates no middle course.