Inquest

Five days after the heinous murders of Andrew and Abby Borden shocked the city, an inquest into the killings was held at the Fall River Police Station. Required by a Massachussetts state statute, an inquest was an investigative proceeding routinely undertaken in the case of violent death, and Lizzie Borden was served a subpoena to appear. She was questioned on the stand over the course of three days, and her erratic answers to his questions under oath helped convince Bristol County District Attorney, Hosea Knowlton, that she had indeed killed her father and stepmother with a hatchet. She was arrested at the conclusion of the proceeding.

According to Robert Sullivan, the Massachusetts Superior Court justice who wrote Goodbye Lizzie Borden, a 1974 analysis of the case, the “inquest in Massachusetts is a legacy from the old English law.” In 17th century England, judges traveled circuits and made judicial sittings in rural and remote counties infrequent … If a violent death occurred between judicial sittings … it was necessary to have a method of recording and memorializing circumstances surrounding the death in order that they were available for the next court sitting, [using] a device called a ‘coroner’s jury.’ This procedure, Sullivan added, “was adopted in Massachusetts in its earliest days.”

It wasn’t until 1877 that the “coroner’s jury statute was revised, and the duties of the coroner and his jury were transferred to a judicial officer.” The new statute “required that these district court judges hold hearings forthwith when a mysterious violent death was discovered. At the conclusion of the hearings the judge filed a report certifying: 1) the name of the deceased and who and when the death occurred, and 2) if indicated by the disclosures of the witnesses, the name of the person or persons causing the death.” (Notice that the statue did not say the inquest should provide for the direct examination of suspects.)

Sullivan pointed out that it wasn’t until 1969 that inquest proceedings were required to be completely secret. In 1892, the statute read, “The court or trial justice shall thereupon hold an inquest which may be private.” In practice, however, all inquests before and after 1893 were held in private. So, it is not surprising that when Andrew Jennings, Lizzie’s attorney, asked that he be present during Lizzie’s questioning, he was denied by Judge Josiah Blaisdell, the district court judge who oversaw the proceeding.

As to why authorities chose to subpoena Lizzie to appear at the inquest when police Marshal Rufus Hilliard already had a warrant for her arrest in his pocket, Borden scholar William Spencer, in The Case Against Lizzie Borden, explains the dilemma faced by the district attorney. Knowlton had only just arrived in Fall River on Monday, August 8th, four days after the murders, and newspapers reported that he was huddled in conference with Hilliard, learning the details of the police investigation and their conclusion that Lizzie was the guilty party, until late into the night. “All involved wished to be correct on what they had deduced,” wrote Spencer. “Not only was Lizzie the daughter of a prominent citizen and not a typical murderer, [but also] the crime had been most heinous. A woman with no criminal past suddenly, at age thirty-two, had decided to butcher two people, one her father, no less. Further, an arrest of Lizzie was certain to result in backlash from some prominent citizens and much of the public in general. And, should it be shown that Lizzie did not commit the crimes, careers might be ruined.”

With only four days of investigative findings to go on in assessing her guilt, and a panicked public clamoring for the identification and arrest of the brazen killer, it is not difficult to see why Knowlton might want to question Lizzie and assure himself the police had got it right. A generous observer might also say that, perhaps, if Knowlton took seriously her right to the presumption of innocence, he may have wanted to give her the chance to clear up the suspicion that had gathered steam against her. If so, she failed utterly in that opportunity. Lizzie’s confounding answers to Knowlton’s questions only cemented his impression of her guilt. Just hours after she spoke her final words to him, a new warrant was issued, and Lizzie was arrested for the murder of her father and stepmother.   

Why Lizzie’s Testimony was Ruled Inadmissible

Because of its brevity (only three days as compared to eight days for the hearing, and thirteen days for the trail), much of the testimony we find in the inquest transcript was short and to the point. However, because it was held in private, with no press or public allowed, it was also a more relaxed proceeding. Witnesses weren’t so constrained by the rules of what is allowed at trial, such as hearsay testimony, and many details came out in the inquest that do not appear in the later hearing or trial. Alice Russell’s forthright appearance especially provided insight into Borden family dynamics. But for Lizzie, the pressure applied to her to supply clear and sensible answers to the district attorney’s questions made her falter. As Knowlton would characterize her performance at the trial, “Her story is absurd.” She appeared to be dishonest. She appeared to be guilty. (For an in-depth look at her testimony, see Inquest: Conflicting Statements.)

However, the authorities themselves had undertaken several actions that were later deemed not so sensible either. Three days before the inquest, police Marshal Hilliard and Mayor Coughlin visited the Borden House and asked its inhabitants, including Lizzie, not to leave the house. The men suggested it was for their own safety (John Morse had been chased by a suspicious mob the night before), but because police officers were standing guard around the house at all hours, it was essentially the equivalent of house arrest. It was clearly perceived that way by Lizzie because she immediately asked, “Why? Is anybody in this house suspected?” When the men dodged the question, she followed with, “I want to know the truth.” Mayor Coughlin responded with, “Well, Miss Borden, I regret to answer, but I must answer yes, you are suspected.” Emma then said to the mayor, “We tried to keep it from her as long as we could.” A presumably surprised Lizzie said she was prepared to go with them, but they let her know that was not why they were there. On their way out, Emma told them, “We want to do everything we can in this matter.”

Ten months later, as the jury trial was underway, Knowlton would call the stenographer who had taken down Lizzie’s inquest testimony to the stand, prepared to ask her to read that testimony aloud in court, as he had during the preliminary hearing the previous August. As reporter Elizabeth Jordan explained to her readers, “On the confused stories and contradictions in matters for the most part trifling, the District Attorneys have built their strongest hope of antagonizing the jury.” Not surprisingly, Governor Robinson objected on the grounds Lizzie’s testimony had been “involuntary” and was therefore inadmissible. The judges agreed to hear arguments on the matter.

In his book, Sullivan offered his opinion of the ensuing debate between future U.S. Supreme Court Justice William Moody for the prosecution, and former Governor George Robinson for the defense.

“Nowhere in the long trial were the professional skills of Moody and Robinson placed in sharper contrast. Moody argued the law intelligently and soundly and well. Robinson’s argument was bombastic and, as Moody described it in rebuttal, ‘surrounded with a good many vocal gymnastics and fireworks.’  Reading Robinson’s argument to the court, it is impossible not to agree with Moody, who said to the judges when Robinson was finished, ‘I could not help being reminded of a remark by a French general … It is magnificent, but it is not law.’ Moody said of Robinson’s argument ‘so far as I can understand his position, it is that the testimony is not admissible because it is not’.”

Sullivan’s bias is clear, but he was correct on at least one point; Robinson’s argument featured a good number of fireworks that took the prosecution to task for not arresting Lizzie when they had a warrant in hand, ostensibly to allow her to “voluntarily” answer a summons to appear at the inquest without having to fulfill their obligation to inform her that she did not have to testify. He called it not only a deceptive maneuver, but “a colorable evasion of the law … [designed] to deprive this defendant of the rights that are sacredly guaranteed to her in the Constitution of the Commonwealth.” He then declared that the entire “purpose” of the inquest “was not to determine the fact of crime,” as it was statutorily intended, “but its use and power were devoted to extorting something from this defendant that could be used against her.” And, “if anything a defendant does under circumstances like that is voluntary, then compulsory must hereafter be known as voluntary.”

Robinson then went further, as Cara Robertson explained in The Trial of Lizzie Borden, by suggesting that the grief-stricken Lizzie, caught in the swirl of tragic and confusing events, had been in such a vulnerable state that “officials had an affirmative duty to protect her and prevent her from testifying.” Having failed in their duty, the duty to protect her rights now rested with the judges.

Moody made a detailed rebuttal, citing numerous precedents, and asserting “declarations voluntarily given, no matter where or under what circumstances, are competent.” And, because Lizzie’s testimony was “clearly not in the nature of a confession, but rather in the nature of denials,” any argument based on law regarding compelled confessions was irrelevant. He agreed that if Lizzie had been in “ignorance” that she was a suspect at the time of inquest then yes, legally her testimony in that case would be involuntary and thus incompetent, but because she had been told she was under suspicion before she was summoned, that made her testimony voluntary. (This is the opposite argument commonly made by others who viewed Coughlin letting Lizzie know she was under suspicion to be a blunder.)

Moody also rejected Robinson’s accusation that the inquest was a criminal investigation directed solely at Lizzie Borden, and insisted that because the statute required the presiding judge to “state the name or names of person or persons” responsible for the felonious deaths “if known to him,” the inquest court was simply doing its duty by permitting the thorough questioning of Lizzie. He dismissed Robinson’s argument that the warrant for Lizzie’s arrest in Hilliard’s pocket could be considered any kind of coercive force on her, as neither she nor her attorney knew about the warrant. He even claimed that Knowlton himself had no knowledge of that initial warrant while he was questioning Lizzie (a claim that most observers today consider doubtful). Thus, he concluded, “As there is no case to be found, none has been cited, anywhere over the length and breadth of his land or in England as to an exclusion of this testimony, it should be admitted.”

Whatever the merits of Moody’s arguments, the judges were not swayed. In their ruling they stated that “the common law regards substance more than form. The principle involved cannot be evaded by the form of arrest.” In other words, Lizzie not being literally under arrest didn’t mean she wasn’t “effectually” under arrest. Thus, wrote the judges, “We are of the 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 trial.”

Interestingly, a highly relevant issue that was not mentioned in Robinson’s arguments, nor in the judges’ ruling, was how inquests were typically conducted at that time in Massachusetts. However, one must assume the judges knew that Moody’s insistence that summoning Lizzie to appear at the inquest was the ordinary way of things, and the judge who permitted it was doing his “duty,” was simply not true. In fact, according to the August 12th edition of the Fall River Herald, Judge Blaisdell had “advised” Jennings to “waive the examination” of Lizzie at the inquest, knowing it was not in her best interest. The problem was, when Jennings declined his advice, the judge allowed the examination to proceed anyway.

A Closer Look at Inquests in 1892

Under the sub-heading of “A Lawyer’s View,” the reporter from the Herald wrote, “It is evident that the prosecution was surprised because Laywer Jennings did not waive exmination. Though Judge Blaisdell advised that step, Mr. Jennings declined.” The article went on to offer the opinion of “a prominent criminal attorney” that since Lizzie was suspected by police from the first day, “they had no right to summon her to testify against herself. This is a right guaranteed by the constitution.” Clearly, at least some in the legal community at the time recognized that Lizzie’s rights were being violated by the district attorney, whether Andrew Jennings, who was not a criminal attorney, recognized it or not.

Thirty years later, the district attorney’s son, Frank Knowlton, was trying to help Edmund Pearson understand his father’s thinking in prosecuting the case, and wrote to several of his father’s friends and associates in the legal field to get their thoughts on how his father handled the case. We can find some of these letters, dated in March, 1924, in The Knowlton Pearson Correspondence. An attorney by the name of Frederick Chase, who had at one time been assistant district attorney of Suffolk County, had this to say about how inquests normally unfolded in Massachusetts at that time.

According to my observation and information, inquests are generally of rather short duration … In my own personal experience, I can recall but one inquest which was lengthy, or where the District Attorney appeared and took part in the examination … The “Lizzie Borden” case was unusual in that the person who was suspected of causing the deaths, and who afterwards was charged by indictment with murder, testified before the examining magistrate. I do not now recall whether she was summoned as a witness or if she appeared voluntarily … oftentimes a person on whom suspicion rests makes a request to testify at the inquest. I understand that this request is generally denied and that the magistrate holding the inquest endeavors to confine the inquiry into an examination of witnesses who are not suspected of wrong in the matter.

Another lawyer that Frank Knowlton reached out to at the same time, Asa French, a U.S. attorney, agreed that the Borden murder inquest was “unique … in the fact that a person under suspicion was examined at the inquest, and the testimony there given was used against her at the [preliminary] hearing upon probable cause. Why it was admitted without objection (as I believe it was) I cannot understand … I need not remind you that this testimony was excluded at trial.”

It is interesting that these letters were written to the younger Knowlton for the benefit of Pearson, who a decade later would write of the inquest into the Borden murders as if it was nothing unusual, merely a formality required by law and “an action against no one.” It is not known whether Frank Knowlton shared the contents of those letters with Pearson (they were donated to the Fall River Historical Society by Frank’s son in 1998), but either way, it is clear that the inquest into the Borden murders was anything but usual. It veered from precedent in that the district attorney himself did the questioning of witnesses, and also in that the judge presiding over the proceeding not only allowed Lizzie to be summoned but also allowed her to testify even though, from the advice he offered Jennings, he seems to have known that it was legally questionable.

It would appear that Lizzie’s attorneys were right in that those decisions were made, at least in part, to extract testimony from Lizzie that they could use against her. It would also appear that the three judges at her trial were right to exclude it.   

Legal Experts Cry Foul

While the press generally applauded the decision, with the majority of newspapers declaring support of the moral rectitude of the judges, there were several vocal critics in the legal world who expressed shock at a ruling that blocked important “evidence” that the prosecution had counted on to help prove her guilt. Many writers on the case in the years since have expressed similar disapproval. Victoria Lincoln wrote that the inquest had been wrongfully “represented as a corrupt judiciary’s dark means of trapping Lizzie into self-incrimination by three days of confusion and mental torment. Yet, aside from Lizzie’s remarkable performance, the inquest was a run-of-the-mill affair, meriting neither the earlier nor the later criticisms.” Lincoln echoed Pearson, who in addition to questionably claiming the inquest was nothing unusual, was scathing in his assessment of the defense’s move to have her inquest testimony tossed out, pinning the blame on Lizzie herself:

“No gangster or professional criminal, aided by a lawyer of his own kind, ever sought more eagerly to profit by every tender indulgence of our criminal code, or more earnestly invoked the law’s technicalities, than did (to quote the Boston Journal) this “true, modest and upright woman,” buttressed by the clergy and defended by an eminent advocate. Her pious supporters raised glad shouts of joy, not because she had fearlessly tried to prove her innocence, but because she was protected from explaining her own words and actions by a clever counselor who won with all the legal tricks.”

Legal scholar John Henry Wigmore, writing in 1893, suggested that it did not matter whether Lizzie Borden was under arrest at the time of the inquiry or not, since she had presumably been fully advised by her attorney of her Constitutional rights against self-incrimination.

“Is there any lawyer in these United States who has a scintilla of doubt, not merely that her counsel fully informed the accused of her rights, but that they talked over the expediencies, and that he allowed her to go on the stand [at the inquest] because he deliberately concluded that it was the best policy for her, by so doing, to avoid all appearance of concealment or guilt? And yet the ruling of the Court allowed them to blow hot and cold—to go on the stand when there was something to gain and to remain silent when the testimony proved dangerous to use.”

Wigmore seems to make a good argument, and it is often quoted in different accounts of the trial and its controversial rulings. Double standards are irritating. But his argument ignores that the prosecution employed their own double standard, going against established procedure on inquests to summon Lizzie, then grilling her for many hours without the benefit of counsel even as they were encouraging her to believe she was there to help them find her father’s killer. Knowlton specifically told her as much when he paused in the midst of his aggressive questioning to say: “Miss Borden, of course you appreciate the anxiety that everybody has to find the author of this tragedy, and the questions that I put to you have been in that direction.” One could argue that the lawyers for the prosecution were the ones blowing hot and cold, violating precedent and misleading Lizzie in pursuit of their own agenda, then complaining when her lawyers cried foul and the judges agreed.

It is striking that nearly every legal expert who weighed in with critiques of the ruling—Wigmore, Davis, Sullivan—wrote from the firm assumption that Lizzie was guilty of the murders, and as such, was little more than a cold-blooded killer trying to wriggle free from the consequences of her actions. Few ever gave her the benefit of the doubt, let alone the benefit of the jury’s verdict, to view the matter in light of her possible innocence. Sullivan even argued that the defense’s “vigorous efforts” to have Lizzie’s words excluded was more or less proof she was not innocent. But clearly, Lizzie’s attorneys were not arguing for the inadmissibility of her testimony because they believed it legitimately pointed to guilt, they were arguing for inadmissibility because they believed it could illegitimately point to guilt. They weren’t trying to make sure that cold-blooded killer Lizzie wouldn’t get her comeuppance; they were trying to make sure that her ill-gotten testimony would not unfairly prejudice the jury against her.

Cara Robertson writes of “the powerful rationale of the case law on this point,” based on “the psychological insight that involuntary statements are often unreliable.” Involuntary testimony is essentially a form of coerced testimony. And coerced testimony, whether elicited through brute force or legal chicanery, is simply not reliable testimony, not legally, and not morally.  

Whether the prosecution understood the moral dimension of the argument or not, several reporters who were in the courtroom at the time did understand that ethics were at the core of the court’s ruling, which had invoked “substance over form.” As Joe Howard observed, Moody’s arguments, while they may have been technically correct in regards to the law, were missing the point. It was, Howard wrote, “not a question of whether such and such a course was the [accepted] practice, but whether the practice was right.”

Was Lizzie’s Testimony Voluntary or Not?

Judge Charles G. Davis, writing in 1893, declared he found it “difficult to see how Miss Borden was under arrest when she was not under arrest … If she was a voluntary witness her testimony was admissible … It surely appears that she was a voluntary witness.” Furthermore, if Lizzie didn’t want to risk incriminating herself, all she would have had to do was to answer Knowlton’s questions with, “Upon the advice of counsel, I decline to respond.” Yet, Davis also recognized that it would have been “a moral condemnation to refuse” to answer. Or as Lincoln put it, she would lose her “innocent bystander status” and would look more interested in protecting herself than in helping authorities find the killer of her parents. These writers were acknowledging that Lizzie was in a no-win situation: Damned if you do (we will pick your words apart until we find ‘evidence’ of guilt) and damned if you don’t (you will look guilty anyway). But let’s look again at this loaded word: “voluntary”

It is true that no one held a gun to Lizzie’s head or otherwise “forced” Lizzie to testify at the inquest. In fact, it would appear that even when advised by the judge through her lawyer to “waive the examination,” she did not waive it but actively chose to appear. But she was served a subpoena, and it was no doubt worded the same as the subpoenas served to Bridget, to Emma, to her Uncle John, and she may not have understood the unique legal jeopardy she was in. Yes, Mayor Coughlin had told her Saturday night that she was suspected, but because, as Emma said, Lizzie’s family and friends had been trying to keep from her news of suspicions directed at her, she may not have understood that by that point she was the only one suspected. She had good reasons to believe that everyone in the house was under some kind of blanket suspicion. John Morse had been chased by a mob the night before and openly complained to reporters he knew he was suspected. Bridget Sullivan was said to be living in such fear of suspicion that when Officer Doherty showed up with a summons to appear at the inquest, she burst into tears because she thought she was about to be arrested. Even Alice Russell admitted to Knowlton that she had feared suspicion could land on her merely because she had been staying in the Borden house. So, if Lizzie was innocent, then it would be reasonable to suppose she did not expect to be a suspect for long and would want to “help” the police in their investigation to find her father’s actual killer, as both she and Emma repeatedly told them they desired to do.

Of course, it would also seem reasonable to suppose that her attorney, Andrew Jennings, would have had a better understanding of the legal jeopardy she was in. And perhaps he did. But if the reporter from the Fall River Herald was right and Judge Blaisdell advised Jennings not to allow Lizzie to testify, and Jennings thought it best to go ahead anyway, he was obviously not seeing the situation clearly, either. He certainly did not know that Marshal Hilliard already had a warrant for Lizzie’s arrest in his pocket. And, perhaps knowing that primary suspects were not typically called to testify at inquests, he was lulled into thinking the investigation had broadened to include other suspects. Thus, if Jennings, who strongly believed Lizzie was innocent, was calculating the advantages against the disadvantages of Lizzie waiving the examination when he sat down to advise her, it could have legitimately seemed a good idea to ignore Blaisdell’s advice and allow her to answer Knowlton’s questions and set the record straight. From the outrage he expressed afterward, accusing Knowlton of “putting her on the rack,” it’s doubtful he foresaw how narrowly and aggressively the district attorney would question her, or how poorly she would hold up under the pressure.

Judge Justin Dewey, in his charge to the jury, clearly understood the dangers to a defendant in taking the stand to speak in one’s own defense, even if one is innocent. “She may be asked questions which she is not able to answer, or she may answer questions truly and yet it may be argued against her that her answers were untrue, and her neglect to answer perverse … She is exposed to the peculiar danger of having her conduct on the stand and her testimony severely scrutinized and perhaps misjudged of having her evidence claimed to be of little weight, if favorable to herself, and of great weight so far as any part of it shall admit of an adverse construction.” While Dewey was talking primarily about Lizzie’s decision not to take the stand at trial, he could have been describing exactly what happened to her when she sat before Knowlton at the inquest.

Perhaps that is why Lizzie reacted as she did after she heard the judges’ ruling regarding the inadmissibility of her testimony. As Julian Ralph of The New York Sun described it, Lizzie’s “hand sought her handkerchief, and almost too quickly for her to get it to her face the tears shot into her eyes. A strange, strong convulsion racked her body at the same moment … again and again her body shook with the sobbing form that her overstrained emotion took.” This was clearly a description of someone awash in a wave of relief. What we don’t know is whether it was the relief of an innocent person wrongly accused or of a guilty person who had just been given reason to believe she might actually escape the hangman’s noose.

For an in-depth look at Lizzie’s actual testimony and why it is considered evidence of her guilt, see Inquest: Conflicting Statements. For a closer look at why such inarguably damaging testimony could also be consistent with innocence, see Inquest: Mitigating Factors.