The Fall River Tragedy: A History of the Borden Murders

by Edwin H. Porter

When the life of man is in debate

No time can be too long, no care too great.

Hear all, weigh all with caution. Now, gentlemen, it is not your business to unravel the mystery. You are not here to find out the solution of that problem. You are not here to find out the murderer. You are not here to pursue anything else. You are simply and solely here to say, is this woman defendant guilty? That is all, and though the real criminal shall never be found, better a million times that than you find a verdict against this woman upon insufficient evidence and against your human experience and contrary to the law, so that an unhealthy appetite may be satisfied, and blood be given that belongs to the owner of it beyond anybody’s taking. Not who is it? Not how could it have been done? Did she do it? That is all. Reflect if you have not yet been able to bring that evidence with a certainty and a reasonable construction to a conclusion, so that you, as decent gentlemen, can go to your homes and sit down and say, “We have done our whole duty. We have brought in a verdict against her,” although perhaps, within a week we wish we had not, when we think of it. Nor must you think for a moment that this defendant is set to the business of finding out who did it. If she cannot find out and tell you who perpetrated these acts, somebody says, “Go hang her.” She is not a detective, and the commonwealth has put her in a place for the last ten months so she could not be very vigilant or active if she had all the ability in the world. She has been in jail in this county; she has been under control of the police from the very time, from Thursday, August 4, as you know from all these

facts, and do not expect her to do things that are impossible. Pray, do not load upon her the responsibility of setting her to go when she cannot go, or do what she cannot do, or else hold her to account for it with the severest penalty known in the law. The commonwealth does not want any victim, either. In the old days they had sacrifices of lambs and goats, and even human beings were offered in expiation and in sacrifice. But we have got over all that. We do not even burn witches now in Massachusetts. The commonwealth wants no victim, and so, gentlemen, I have attempted in this way to array before you what I consider, in my own manner, the duties that lie upon you and the limitations under which you act. And what is the call upon you? Why, simply to be true to yourselves. “To thine own self be true, and it must follow, as the night the day, thou canst not then be false to any man.” Now there always goes with any person the presumption of innocence of crime. I stand here at this moment addressing you, and I am clad all over with that presumption of innocence of every crime; so is each one of you. That is your bulwark; that is born with you, nay, rather is given to you out of the great consent of all the people, and you say “guilty?” Why I think not. I am innocent, and the court will tell you that that presumption started with this prisoner on August 4, and has been with her by night and by day. When you had her in charge that presumption of innocence has been in her favor and it never leaves her until by the verdict of a jury that presumption is overcome and she is declared guilty.

It is true that people who have heretofore been innocent commit crime, and so the law says, “We will not demand the unreasonable and impossible thing, but you, the defendant, shall have that presumption go with you until it is entirely overturned and it says that you are of a criminal heart and criminal act.” Now, bear that in mind, if it comes to any question in the discussion of the evidence of a doubtful consideration, then that presumption is all the time in the scale. The beam of the scale does not stand level to start with. We say the scales of justice hang even, but there is always with the defendant the presumption of innocence that tips the scale in her favor, and the commonwealth must begin and load in on the other side facts until they shall overcome the presumption—nay, more, and overbalance the facts that the defendant shall produce.

I shall not attempt to talk to you at length about the different kinds of evidence, direct evidence and circumstantial evidence. The learned court will explain those different features to you, and the

lines have been drawn so clearly in the many cases that have been tried that it is wholly unnecessary for me to take your time and your patience. You know, or will know, when his honor has uttered to you the charge in the best way what we mean by direct evidence, and what we mean by circumstantial evidence. Direct evidence, testimony from actual observation and actual knowledge, is what we very frequently rely upon. But that is not always certain. I am bound to say to you, not always sure, because the man who gives the direct evidence may be a miserable liar and you would not believe him under oath unless you kept your hand on him. Now, that is direct evidence and then sometimes facts are found out by circumstances. You reason from hearing a noise or from seeing a person in a given place. You see a man going somewhere and you say he has gone in there for that particular business there, whether it is banking or insurance or grocery. Well, you may be right or you may be wrong. You have been given different circumstances to try to draw out a reasonable conclusion, but I am not going to enlarge upon that because I deem it unnecessary and because I have other things in my mind which are more important. You do not start in here to try to convict anybody—other people may, but you do not. If you are asked to convict upon any evidence, whether that is direct or circumstantial, you will, of course, bring it your clearest perception and strict honesty, and look to see whether it fits in, whether it is all right, and whether it has not run against this corner and also knocked itself to pieces, whether the circumstances are all in and whether something has not been left out, whether the chain is not broken with which it is sought to bind the defendant. Look it over, search it through and through, as I will in the argument as I proceed, and discover whether there is any claim that is insufficiently proved. Then, too, the court will tell you that by whichever method you proceed as to this defendant, the proof must come up in your mind as a moral certainty—not a mathematical certainty, but a moral certainty. It must be beyond a reasonable doubt.

Now, you saw in criminal cases before—very likely you have had a man before you on trial who had stolen five dollars or something of that kind, and the same rule applies. And you are told that you must not convict him unless you are satisfied beyond a reasonable doubt. It is not different in this case. In the one case you are perhaps dealing with a man who will be subjected to a penalty of a fine, or a brief imprisonment at the most. Here the same rule applies, and you are dealing with a woman, whose life is at stake, and nothing else. Now,

you will see that while the rule of law is the same in the one case as in the other, the magnitude of a mistake about it is not to be lightly considered. So that when you are asked to find these essential facts beyond a reasonable doubt of a curmudgeon who sits off in a corner and says, “I won’t talk with anybody; I am an ugly fellow: I will make myself disagreeable in this jury room,” that is not it. That is not a reasonable doubt, no matter which side he is on. He is not fit for service in the jury room. It is the doubt of such men as I take you to be, with your home influences, with your church belongings, with your business associations, with your social relations, with all that binds you up to each of us.

It is the reasonable doubt of a reasonable man, confronted with the greatest crisis he has ever met in the world. Yes, the greatest crisis; because, though I doubt not some of you have worn the blue and faced the cannon shot, though you may have heard and felt the thunders of war, and you may have seen blood flow in streams, yet that is one thing; this—to sit here and to have in charge this young woman and to say upon your oaths you are satisfied that she is guilty or not guilty, is a duty to which very likely none of you have ever been called, and which probably you will never be asked to perform again. You will go to your graves thinking of how you performed this task, and it ought not to be that you can have any compunctions that you made a mistake which nobody could retrieve. Then again, under the laws of this State, the defendant in a criminal case is permitted to testify upon the stand as she desires to, but if she does not desire to she can refrain from testifying, and then the statute says, specifically and directly, no inference shall be drawn against her from the fact that she has not testified. And so the learned district attorney in his closing argument will not by the slightest suggestion or insinuation insult this court and jury by intimating that the defendant ought to have testified. That law was born under two considerations. Formerly the defendant could not testify. Later it seemed to be wise to give a defendant an opportunity to testify, but it says at once, although he does not come to the stand, you shall not take that against him in any way. And again, too, as if in the charity of human nature our law givers felt that it was too great a strain oftentimes to put upon a defendant to place him in such a position that he must either go upon the stand or have that argument laid against him, that he ought to have done it, the law which I have cited to you—not in its exact term, but in its essential features and expressions—was framed in the way I have stated. And I dismiss