The Trial of Lizzie Borden(49)

In addition to showing her opportunity, Lizzie Borden’s inquest testimony also provided evidence of Lizzie’s motive for killing her stepmother (the property dispute that divided the family) and Lizzie’s “consciousness of guilt.” The prosecution was not required to offer a motive for the murders though it was hard to imagine any jury convicting an apparently sane daughter of killing her father and stepmother without some explanation, profound grievance, or dark purpose. By contrast, “consciousness of guilt” was considered strong evidence of underlying guilt of the crime. If Lizzie Borden did something an innocent person would not have done or failed to do something an innocent person would have done in the same circumstances, then that act or omission would demonstrate “consciousness of guilt.” More colorfully, a leading authority on evidence argued—in an apt metaphor for the Borden case—“As an axe leaves its mark in the speechless tree, so an evil deed leaves its mark in the evil doer’s consciousness.”

The prosecution believed that Lizzie Borden’s account of her actions that day suggested subterfuge. She had invented a note to her stepmother to prevent her father from looking for Abby, lying dead in the guest bedroom, and to explain why she herself did not think to look for Abby after she found her father’s body. Then she had also burned the dress allegedly worn on the day of the murders. The prosecutors believed that “the conduct of the accused after the killing was such that no conceivable hypothesis except that of guilt, will explain the inconsistencies and improbabilities that were asserted by her.”

Moody laid out the prosecution’s argument for admitting Borden’s inquest testimony. First, he reminded the judges of the breadth of legal relevance: “All facts that go either to sustain or impeach a hypothesis logically pertinent are admissible.” Acknowledging that there was a separate jurisprudence on the admissibility of confessions, one that might be harder for the prosecution to overcome, he declared that Borden’s inquest testimony was “clearly not in the nature of a confession, but rather in the nature of denials.” In other words, Lizzie had been trying to exonerate herself; therefore, the case law on compelled confessions was irrelevant. Then, from cases he culled from numerous jurisdictions, Moody derived a clear rule: “Declarations voluntarily given, no matter where or under what circumstances, are competent; declarations obtained by compulsion are never competent.” As principal support for these propositions, Moody discussed a series of cases from New York because of its settled law on the question. People v. Mondon, 103 N.Y. 211 (1886), the most recent case he cited, offered this bright line rule ostensibly drawn from previous cases: the testimony of a witness before a coroner’s inquest may be used against him at trial, regardless of whether he was suspected of being the perpetrator.

According to the prosecution, Lizzie Borden voluntarily testified at the inquest; therefore, her statements should be admitted into evidence. Moody explained that the state was required to hold an inquest about deaths in suspicious circumstances. There was nothing unusual—let alone sinister—in the procedure. Borden was not under arrest or charged with the murders at the time of the inquest, and she had consulted with her attorney before testifying. If Borden wanted to protect herself against the subsequent use of her statements, Moody argued, she should have claimed her privilege against self-incrimination as codified in the Massachusetts Constitution, which contained a correlate to the now familiar Fifth Amendment of the United States Constitution. Because the Constitution did not, at that time, apply to the states, Lizzie Borden could not seek federal constitutional protection—despite her attorneys’ reference to the most recent Supreme Court case on the subject.





SHE STOOD ALONE




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The defense saw Lizzie’s inquest testimony in a different light. Robinson argued that there was a specific prohibition against admitting Lizzie Borden’s inquest testimony into evidence. Lizzie’s testimony at the inquest was essentially involuntary, a legal term used to characterize coerced confessions, and should not be heard by the jury. She had been subpoenaed to appear and, despite being under suspicion for the murders of her father and stepmother, she was not cautioned about her right not to testify, guaranteed not only by common-law tradition but also by the Massachusetts Constitution.

According to Robinson, Borden was under constructive arrest, as much in custody as if an arrest warrant had actually been served. Marshal Rufus Hilliard, it transpired, had carried an unserved arrest warrant in his pocket during the inquest. And Robinson built upon that small fact to evoke a particular ambiance. Unlike Moody, who immediately launched into the fine points of doctrine, Robinson conjured up an atmosphere of menace in which crowds of men in authority circle a defenseless young woman. He described the police surveillance of the house, the subpoena to appear at the inquest, and the denial of Lizzie’s request for representation at the inquest: “She alone—a woman unguided by her counsel, confronted with the District Attorney, watched by the City Marshal, at all times surrounded by the police.” In Robinson’s account, the Fall River authorities were allied in a nefarious official conspiracy to compel Lizzie’s testimony, blocking her escape like cats playing with their prey. The arrest warrant proved that they were “keeping her with the hand upon the shoulder—she a woman could not run—covering her at every moment, surrounding her at every instant, empowered to take her at any moment, and under those circumstances taking her to that inquest to testify.” How could statements made under those conditions possibly be voluntary?