“There are three, as I understand them: one, that the man who wrote it has not been found; second, that the party who brought it has not been found; and third, that no letter has been found. And substantially, if I understand the position correctly, upon those three grounds you are asked to find that an essential fact — a deliberate falsehood on the part of the defendant has been established.
“Now what answer or reply is made to this charge? First, that the defendant had time to think of it; she was not put in a position upon the evidence where she was compelled to make that statement without any opportunity for reflection. If, as the Government claims, she had killed her stepmother some little time before, she had a period in which she could turn over the matter in her mind. She must naturally anticipate, if she knew the facts, that the question at no remote period would be asked her where Mrs. Borden was, or if she knew where she was. She might reasonably and naturally expect that that question would arise.
“Again, it will be urged in her behalf, what motive had she to invent a story like this? What motive? Would it not have answered every purpose to have her say — and would it not have been more natural for her to say — simply that her stepmother had gone out on an errand or to make a call? What motive had she to take upon herself the responsibility of giving utterance to this distinct and independent fact of a letter or note received with which she might be confronted and which might afterwards find it difficult to explain, if she knew that no such thing was true? Was it a natural thing to say — situated as they were, living as they did, taking the general tenor of their ordinary life — was it a natural thing for her to invent?
“Now gentlemen, you know that I am expressing no opinion as to what is proved. I am only trying to illustrate principles and rules of law and evidence. Referring to the present case let me use this illustration: suppose you were clearly satisfied upon the testimony that if defendant committed the homicides she could by no reasonable possibility have done so without receiving upon her person and clothing a considerable amount of bloodstain; that when Bridget Sullivan came to her upon call and not long after some of the other women, she had no bloodstains upon her person or clothing; that she had had no sufficient opportunity either to remove the stain from her person or clothing, or to change her clothing.
“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.