Prussic Acid

[PossumPie]

Do you all think it was actually Lizzie who asked the pharmacist to buy Prussic Acid? It was never 'proven' that it was her, and she denied every asking for it...

[Yooper]

Three people testified that Lizzie tried to buy prussic acid from Bence. I think Eli Bence had some ties to someone on the police force, a brother or brother-in-law perhaps. Still, I don't know why he might risk compromising his reputation with a false accusation.

[PossumPie]

If it were proved that Lizzie indeed tried to buy the Poison, and she is on record lying about doing so, that would be bad. Of course someone could argue that she knew it looked bad, so lied not because she was going to poison them, but because it looked bad. She was smart enough I believe, not to have purchased it so near home, wouldn't she have known that if they died of poison, the local shop owners would have been questioned?

[NancyDrew]

I read somewhere that the police had performed a sting operation, sending three wives to various pharmacies to ask for poison. I think this might have been a story the prosecution was prepared to use IF the Bence testimony was allowed in.

Bence was, by all accounts, an upstanding citizen. He had nothing to gain by making up that story about Lizzie, AND it was corroborated by 2 other workers who were in the drug store that day. What I cannot understand is how NO OTHER patrons also saw her? By all accounts, downtown Fall River was a crowded place...?

[PossumPie]

Help me remember...He didn't know her nor did he see her on a regular basis... he just Identified her as the woman after the fact? After-the-fact identification of someone who is on trial for murder is tenuous as best. All I can find is a summery of court saying he "believed her to be..." the woman asking for the poison.

[Smudgeman]

I believe Lizzie's first attempt to kill the elder Bordens was with the Prussic acid, but then Uncle John arrived and things changed. His arrival seemed to have sparked an urgency in Lizzie's mind. Too bad her inquest testimony was thrown out because she did not have an attorney present. I believe Eli Bence.

[PattiG157]

I, too, believe that Lizzie tried to purchase prussic acid the day before the murder -- three people swore that she did it. But, even if Lizzie had used prussic acid on her parents, would it have shown up in the initial autopsy, or is it a slow-acting acid? Something tells me that even if she had used poison, it may not have shown up in the stomachs (which were removed) in the first autopsy. But that's just a thought.

I think this is actually a question for a scientist -- any scientists out there?????

[Darrowfan]

I, too, believe that Lizzie tried to purchase prussic acid the day before the murder -- three people swore that she did it. But, even if Lizzie had used prussic acid on her parents, would it have shown up in the initial autopsy, or is it a slow-acting acid? Something tells me that even if she had used poison, it may not have shown up in the stomachs (which were removed) in the first autopsy. But that's just a thought.

I think this is actually a question for a scientist -- any scientists out there?????

On a side note, Patti, the attorney I work for used to be a criminal defense attorney. I didn't tell him what case I was talking about, but I gave him the facts about the case, and asked him how he would rule, if he were a trial judge, on the admissibility of the testimony from the druggist about the defendant trying to buy poison the day before the killings. He said that if he were the judge, he would rule the testimony inadmissible. I asked him why, and he said because its possible relevance would be outweighed by its prejudicial effect on the jury.

I also asked his opinion about the admissibility of the defendant's inquest testimony at trial. He said that if the defendant asked for legal counsel before the inquest, then her testimony would be inadmissible at trial. If, however, she did not ask for legal counsel prior to the inquest, then that testimony would be considered voluntary, and thus admissible.

[Allen]

Prussic acid is the antiquated term for cyanide. We know prussic acid today as cyanide.

[leitskev]

I don't think I weigh the prussic acid evidence heavily. Rumors about posing were no doubt circulating around town very quickly because of the incident with Dr. Bowen and Mrs. Borden the day before. That kind of thing was probably in the papers too...though I don't know that. So it's very convenient that the pharmacy comes up with this story. Coincidences are rare, and using coincidence can help eliminate certain things. The fact that Mrs. Borden thought they were being poisoned(though it was just food poisoning) is very coincidental to the testimony of the pharmacists, who only recognized it as Lizzie...someone they didn't know...AFTER the murders.

I'm not saying the pharmacists lied. I'm just saying their testimony is convenient. They might have imagined it, twisting some real event to fit what they thought the police were looking for. I think modern police work would ignore this kind of evidence once the autopsies showed there had been no poisoning.

[NancyDrew]

Hydrogen cyanide, to be exact. And yes, I have a degree in science. In fact, I used to teach chemistry.

Hydrogen cyanide is nasty stuff; it's vapors alone can do a lot of damage. Why Lizzie used the "sealskin" cape excuse is beyond me. I would think she had her furs and skins sent out to be professionally cleaned.

Now, one thing I'm NOT is a lawyer...I don't understand this business of disallowing testimony because it may be "prejudicial" to the jury. Isn't that the whole idea of evidene? To allow the jury to JUDGE the defendants actions against the charges and render an opinion? Can anyone explain the prejudicial stuff to me? THanks...

[PossumPie]

I'm a nurse...Hydrogen cyanide is a very basic chemical, found in outer space, and even in the pits of apricots, peaches, and other 'stone' fruits. It halts the cellular respiration which is what kills, and in sufficient quantities could be found in stomach contents, but if administered in smaller doses over time, could kill without theoretically being detected back in those days. Hydrocyanic acid in a large dose would have produced a tell-tale cherry red coloring to the skin of the face and blue nailbeds. A quick post-mortem of the skull would have allowed the pathologist to smell the distinct odor of Hydrocyanic acid there. A slow poisoning over time would have been very hard to prove, the pathologist would have to be looking specifically for poisoning, and it could be argued it occurred by some natural ingestion.

As to the prejudicial nature of the story's admission, a judge probably would have said "weighing the 'hearsay/lack of proof' of the story of attempted purchase against the HUGE emotional impact it would have on the jury (making them think of some criminal intent) I decide that the damage wouldn't be fair to the defendant considering everything involved" IMHO
I'm still trying to weigh how likely it WAS Lizzie. As I said before in this thread, If he identified her after the fact, from a picture and said, oh, that was the woman, That means less to me than if he knew her a long time by name, "hi Miss Borden" when she passed him on the street and positively Identified her for sure as trying to purchase the Prussic acid. Foreknowledge of her by name is always better than identifying after the fact.

[Darrowfan]

Now, one thing I'm NOT is a lawyer...I don't understand this business of disallowing testimony because it may be "prejudicial" to the jury. Isn't that the whole idea of evidene? To allow the jury to JUDGE the defendants actions against the charges and render an opinion? Can anyone explain the prejudicial stuff to me? THanks...

Well, Nancy, evidence is considered "prejudicial" when it does not prove anything, in and of itself. For example, showing the jury a video tape of a defendant committing the crime is not prejudicial, because it actually proves that the defendant committed the crime. However, the fact that Lizzie sought poison the day before the murder does not prove that she killed Andrew and Abby with a sharp instrument. What the attorney I talked to was saying is that there is always a possibility that 1) the druggist was lying, or mistaken, or 2) Lizzie wanted the poison for some innocent purpose, however unlikely that might be.

But hearing testimony that Lizzie sought poison the day before the killings would probably cause the jury to leap to a conclusion that is not supported by the evidence. In other words, it would be "prejudicial" for the jury to say to itself, "Oh, Lizzie tried to buy poison. Well, that proves she killed her folks with a hatchet." It does not prove any such thing.

As possumpie wrote: "As to the prejudicial nature of the story's admission, a judge probably would have said "weighing the 'hearsay/lack of proof' of the story of attempted purchase against the HUGE emotional impact it would have on the jury (making them think of some criminal intent) I decide that the damage wouldn't be fair to the defendant considering everything involved" (You hit the nail on the head, possum.)

Many times, the rules of evidence in criminal cases don't make sense to people who don't work in the legal system, but these types of rules exist only to protect the rights of persons accused of crimes. Judges must be very careful to make certain that criminal defendants get a trial that is completely fair, and any good judge will bend over backward to do so.

[Allen]

From the Witness Statements page 8-9 the note of Doherty and Harrington:

Eli Bence. Had a lady ask for prussic acid on Wednesday morning August 3rd. When asked for what use, she said “to put on the edge of a seal skin coat”. I made no sale. She left the store in a very haughty manner. “No, I do not know her, but think I would know her again, should I see her.” After being placed in a position where he could both see and hear Miss Lizzie Borden, he was very positive in
identification, not only of her face and general appearance, but also of her voice.

Many sales had been made, and a number of persons refused. A description of those who were refused was obtained, but --none resembled the person who called on Bence. However, at P. S. Brown’s, a day or two before, a lady requested a sale of poison from clerk Gifford. She was refused. He could give no description of her.

[Darrowfan]

From the Witness Statements page 8-9 the note of Doherty and Harrington:

Eli Bence. Had a lady ask for prussic acid on Wednesday morning August 3rd. When asked for what use, she said “to put on the edge of a seal skin coat”. I made no sale. She left the store in a very haughty manner. “No, I do not know her, but think I would know her again, should I see her.” After being placed in a position where he could both see and hear Miss Lizzie Borden, he was very positive in
identification, not only of her face and general appearance, but also of her voice.

Many sales had been made, and a number of persons refused. A description of those who were refused was obtained, but --none resembled the person who called on Bence. However, at P. S. Brown’s, a day or two before, a lady requested a sale of poison from clerk Gifford. She was refused. He could give no description of her.

Very interesting, Allen. I think this shows why Bence's testimony would have been prejudicial to Lizzie's case. I believe that Lizzie was guilty of the crime. But this so-called "evidence" about her alleged attempt to purchase prussic acid is, to me, irrelevant.

[Allen]

There was an article written in the American Law Review volume 27, page 819 by John Henry Wigmore called "Borden Case" in 1893. In this article he argues most emphatically that the poison testimony should have been allowed. And that the testimony of of the doctor about the lethality of cyanide, and of the furrier stating that there was no use for prussic acid in cleaning furs should also have been allowed. Dean John H. Wigmore was called an expert by many in the field especially when it came to the laws of evidence. He graduated from Harvard University then set up his own practice in Boston. During this time he did a lot of research for a Chief Justice of the Supreme Court. He was the foreign adviser to Japan before being recruited to teach law at Keio University at Japan. He was the dean of Northwestern Law School from 1901 -1929. He wrote "Treatise on the Anglo-American System of Evidence in Trials at Common Law" which was published in 1904. He also helped to establish The Harvard Law Review. And Wigmore argued emphatically it should have been allowed. This is what swayed me that the testimony was incorrectly ruled inadmissible.

[Darrowfan]

There was an article written in the American Law Review volume 27, page 819 by John Henry Wigmore called "Borden Case" in 1893. In this article he argues most emphatically that the poison testimony should have been allowed. And that the testimony of of the doctor about the lethality of cyanide, and of the furrier stating that there was no use for prussic acid in cleaning furs should also have been allowed. Dean John H. Wigmore was called an expert by many in the field especially when it came to the laws of evidence. He graduated from Harvard University then set up his own practice in Boston. During this time he did a lot of research for a Chief Justice of the Supreme Court. He was the foreign adviser to Japan before being recruited to teach law at Keio University at Japan. He was the dean of Northwestern Law School from 1901 -1929. He wrote "Treatise on the Anglo-American System of Evidence in Trials at Common Law" which was published in 1904. He also helped to establish The Harvard Law Review. And Wigmore argued emphatically it should have been allowed. This is what swayed me that the testimony was incorrectly ruled inadmissible.

Well, Allen, the part of your post that I will focus on is the following: "In this article he argues most emphatically that the poison testimony should have been allowed. And that the testimony of of the doctor about the lethality of cyanide, and of the furrier stating that there was no use for prussic acid in cleaning furs should also have been allowed."

Now, anyone would agree that cyanide is lethal. And I believe the experts when they say that prussic acid is not good for cleaning furs. But here is the problem. Lizzie denied that she even went to that drug store. In other words, her position was that she never tried to buy the poison in the first place. I think the trial court's reasoning was that if the druggist was wrong that it was Lizzie who tried to buy the poison, then the testimony would serve no purpose other than to inflame the jury against her. In other words, it would be "prejudicial". Aside from that, if the druggist was wrong, and Lizzie did not try to buy the poison, the testimony would be completely irrelevant.

I think there was a question in the judge's mind as to whether or not Bence and the other 2 witnesses were correct. Now the only way Lizzie would be able to contradict the testimony would be for her to take the witness stand and deny it. The problem with that is that her testimony would not be strictly voluntary. In other words, she would be "compelled" to testify, which is forbidden by the Fifth Amendment.

It's an interesting legal question, with valid arguments on both sides. It could be argued that the druggist and the other 2 witnesses should have been allowed to testify, and the jury should be trusted to decide for themselves whether the witnesses were correct about Lizzie trying to buy poison. On the other hand, should Lizzie be forced to testify in order to defend herself, in clear violation of her Constitutional rights?

In law, the jury and the judge have different functions. The jury is the "trier of fact", in other words, it is the jury's job to decide what is true or what is not true. (Was the defendant in the house at the time of the crime? What time did the crime occur?, etc.) The judge is the "trier of law", in other words, the judge's job is to see that the trial is conducted fairly, according to the laws of the state and the US Constitution.

In this case, the judge, I think, decided to err on the side of caution. Consider this too, Allen: If the prussic acid testimony had been allowed, and Lizzie had been convicted, her attorneys probably could have the conviction overturned, arguing to the appeals courts that the testimony should not have been allowed, and that Lizzie's right to a fair trial had been violated.

[Allen]

If you read the testimony by Wigmore he was looking at it from the Supreme Court view with an eye for if it had gone to the Supreme Court. That is exactly what he argued was the jury should have been trusted to decide for themselves when not one but three credible witnesses stated it was Lizzie. Two of whom did know her to see her, and knew her by name. If we look at it from the view of nothing should be allowed that the defendant might have to take the stand and refute no evidence would ever be allowed in court. I don't think the judges erred on the side of caution. Especially after reading the instructions to the jury that more or less told them to disregard all of the evidence and find Lizzie innocent.

[Darrowfan]

If you read the testimony by Wigmore he was looking at it from the Supreme Court view with an eye for if it had gone to the Supreme Court. That is exactly what he argued was the jury should have been trusted to decide for themselves when not one but three credible witnesses stated it was Lizzie. Two of whom did know her to see her, and knew her by name. If we look at it from the view of nothing should be allowed that the defendant might have to take the stand and refute no evidence would ever be allowed in court. I don't think the judges erred on the side of caution. Especially after reading the instructions to the jury that more or less told them to disregard all of the evidence and find Lizzie innocent.

Well actually, there was a great deal of evidence presented against Lizzie that she did not have to refute by testifying, but the evidence was all circumstantial. (Lizzie was on the property at the time of the crime, what people saw Lizzie wearing, what Lizzie's attitude and demeanor were just after the crime, how the house was laid out, the daily routine of the household, who was where on the morning of the crime, etc.)

But an issue with the prussic acid testimony is problematic for another reason, and that is it's "probative value", meaning, does it prove anything. The prosecution would contend that Lizzie trying to buy the substance "proves" that she had homicidal intent. But does it? As the defense pointed out in their motion, the Bordens were killed by brutal physical attack, not by being poisoned. Also, remember that the defense could easily have produced evidence that other people had tried to buy poison without a prescription, and none of those people subsequently committed murder.

That was the way the attorney I work for put it when he said that he would rule that the evidence be excluded. He said, "I would find that the testimony's prejudicial impact on the jury would far outweigh it's probative value." (Lest you think my employer is a "legal lightweight", he has argued a couple of cases before the US Supreme Court himself.)

One more thing I would like to mention. When I first read about the Borden Case, I gave Lizzie the benefit of the doubt, as I had not reviewed all the facts. But I distinctly recall that when I first read about the "prussic acid", I immediately felt she was guilty. Later, after I had reviewed all the facts, I still came to the conclusion that she was guilty, but I no longer give the prussic acid story much weight. The point I'm making is that my first reaction to hearing the story is a great illustration of "prejudicial impact".

[Allen]

I would also like to state that the inquest was also not like a trial. It was not to establish the guilt or innocence of any one party. It was a routine hearing that was done in pretty much all cases. Inquests were held simply to establish the facts of the case, and to hear the statements of all of the witnesses who had any valuable information concerning the case. It was just a fact finding mission for both sides.

[Allen]

And the burden of proof would have been on Lizzie to establish that there was a reason to buy cyanide other than killing her parents. She would have had to show a cause to buy it. She couldn't just say look at all these other people who bought it. Those other people wouldn't matter. She would have to show why SHE specifically bought it. And the prosecution had witnesses to show that cleaning seal skin capes didn't fly. So she would have had to have had another reason. "Other people have bought it" is not a defense. All of this was covered by Wigmore. Which is why I wish people could read it. It's a contemporary account from a man who was up on the laws of evidence of the time. And I think it is relevant. It shows intent if she could show no other reason to buy it. And if a person wants to commit murder but cannot get their hands on their chosen weapon, I don't think they just give up. They find another weapon.

[Darrowfan]

I would also like to state that the inquest was also not like a trial. It was not to establish the guilt or innocence of any one party. It was a routine hearing that was done in pretty much all cases. Inquests were held simply to establish the facts of the case, and to hear the statements of all of the witnesses who had any valuable information concerning the case. It was just a fact finding mission for both sides.

Well there's a point about self-incrimination too. I have to agree with the defense that the statements made by Lizzie at the inquest were not "voluntary". She had already been told that she was a suspect in the crime. She was summoned to the inquest by subpoena. A warrant for her arrest had been issued, but not executed. Also, she was being watched by the police. I think those facts firmly establish that Lizzie was "compelled" to testify at the inquest. (She probably feared that if she refused to appear, she would immediately be arrested.)

I'm not sure that you are correct when you say, "It was just a fact finding mission for both sides." I think that only the state's attorney, Knowlton, asked any questions, and I believe his aim was to collect evidence that Lizzie had committed the crime. This is evident in the fact that he was basing most of his trial case upon Lizzie's inquest testimony, and when that testimony was ruled inadmissible, Knowlton considered that a huge blow.

But as I say, if Knowlton had been allowed to read Lizzie's inquest testimony to the jury, that would have amounted to Lizzie being compelled to testify against herself, in violation of the Fifth Amendment.

I know it's frustrating, Allen, and like you, I am firmly convinced of Lizzie's guilt. However, the State simply failed to prove it. Of course, whether the court and the jury even wanted to convict Lizzie is an open question. You mentioned the Judge's instructions to the jury. I agree that his instructions were not proper, but I'm a paralegal, not an attorney. (I'm going to ask the lawyer I work for to read the judge's instructions, and to give me his thoughts.)

I do get the uncomfortable feeling that the case was "fixed", not through any official process, but just according to the feelings in the community. It's almost as if the city of Fall River collectively said, "We don't care what she has done. We are just not going to hang a young, female Sunday School teacher."

[Allen]

For both sides I meant police and the state. And it was just a fact finding mission. Inquests were routinely held for pretty much every case. And not all of them lead to be bound over for any type of trial. I've studied the laws and procedures of that era myself a great deal. First in my criminal justice classes and then just because I enjoyed it. The inquest was not held to establish guilt. I was a fact finding mission held in all cases just to formally establish the facts of the case. What was said by the witnesses could be used the same as what they said to police during interviews could be used. It was a huge blow when it was found inadmissible because Lizzie lied her ass off. Inquests were routinely held not in just New England but in Great Britain as well. Such as the inquests held for the ripper cases.

[Darrowfan]

And the burden of proof would have been on Lizzie to establish that there was a reason to buy cyanide other than killing her parents. She would have had to show a cause to buy it. She couldn't just say look at all these other people who bought it. Those other people wouldn't matter. She would have to show why SHE specifically bought it. And the prosecution had witnesses to show that cleaning seal skin capes didn't fly. So she would have had to have had another reason. "Other people have bought it" is not a defense. All of this was covered by Wigmore. Which is why I wish people could read it. It's a contemporary account from a man who was up on the laws of evidence of the time. And I think it is relevant. It shows intent if she could show no other reason to buy it. And if a person wants to commit murder but cannot get their hands on their chosen weapon, I don't think they just give up. They find another weapon.

Well no, Allen, the burden of proof is never on the defendant. The accuser (the State) is required to prove every element of its case. Lizzie had no obligation to prove that she sought to buy poison for an innocent reason. On the contrary, the State has the burden to prove that she intended to use the poison to commit murder. That would be a tall order. Taking your argument a step further, you say that "the prosecution had witnesses to show that cleaning seal skin capes didn't fly." But could those witnesses prove that Lizzie knew that? Remember, trying to buy a dangerous substance from a drug store was not illegal. (Actually obtaining the poison without a doctor's prescription would have been illegal.)

Here is what you (and the jury) would have to consider: it is entirely possible for a person to buy a dangerous substance without having intent to kill. (people purchase poisons, knives, and firearms all the time, for example) As I mentioned before, there is also the very real possibility that the druggist and the 2 others were mistaken about who tried to buy the poison.

By the way, Allen, you might be interested to know that the newspapers had carried the story only a few days after the killings, under large headlines that said things like, "Lizzie Tried to Buy Poison the Very Day Before the Crime". Bence's allegation was already common knowledge throughout the area prior to the trial. I would be very surprised if the jurors didn't know about it anyway.

[Allen]

Yes, the burden of proof would have been on Lizzie. Because the story about buying the cyanide for a seal skin cape could have been disproved by the testimony of both the doctor as to it's lethality, and a licensed furrier with 20 years knowledge on how to care for furs that there was no use for cyanide in cleaning furs. So the burden of proof shifted to Lizzie to show why she would try to purchase a drug so lethal, and that needed a prescription which she clearly did not have. A person does not simply buy cyanide for an innocent use or to have it around. A gun yes could be used for protection. There is no innocent use for cyanide. Also, other people's step mother had not been to the doctor just the day before the murders with fears of being poisoned. And Lizzie had visited Alice Russell the night before with fears of being poisoned. I put all the pieces together to make a whole.

[Allen]

And yes, Darrowfan, I've read the headlines of the day. I've read many newspaper accounts in contemporary papers.

[Allen]

Where would she get such a ridiculous idea if there never was a use for it? For a drug that you need a prescription to get. That is lethal enough to kill just by inhaling the vapors. Who would believe Lizzie was that stupid?

[Allen]

Preliminary Hearing Eli Bence Testimony:

Q. Is prussic acid a thing often called for in your store?
(Objection made.)
(Knowlton) I offer to show prussic acid is a thing that is almost never called for, simply for the purpose of showing how much more clear a man’s memory would be of such a singular circumstance as that. I can show it never was called for.
(Court) He may answer.
Q. Did you ever have a call for prussic acid before?
A. No Sir, not to sell over the counter, no sir. I mean to say by a person coming in, and calling for prussic acid, that I never had a call for it before.

[PossumPie]

from a lay person's view,
1. There must have been SOME use for Prussic Acid or it wouldn't be sold.
2. Even if the person had a (false) belief that it would work to keep bugs off a coat, that would be enough to justify buying it.
3. The more I read over it, the less I think 'beyond all doubt' that it even was Lizzie who bought it. The pharmacist didn't know Lizzie before hand.
4. If it WAS Lizzie who tried to buy it, It doesn't prove what her intended use was, BUT it sure makes it look bad for her!

[Darrowfan]

from a lay person's view,
1. There must have been SOME use for Prussic Acid or it wouldn't be sold.
2. Even if the person had a (false) belief that it would work to keep bugs off a coat, that would be enough to justify buying it.
3. The more I read over it, the less I think 'beyond all doubt' that it even was Lizzie who bought it. The pharmacist didn't know Lizzie before hand.
4. If it WAS Lizzie who tried to buy it, It doesn't prove what her intended use was, BUT it sure makes it look bad for her!

Well said, Possum. And that is the point of keeping prejudicial evidence out of a trial. Many times, things have made defendants "really look bad", but it is later discovered that the person is innocent.

The example I always use is this: Suppose you have a dispute with your next door neighbor. In front of witnesses, you lose your temper and say "I wish that guy was dead!" The very next day, that person is indeed found murdered. Now suppose it is established that you were at home, next door at the time of the crime. Let's further assume that you in fact, did NOT commit the crime; you were taking a nap when your next door neighbor was killed. However, suspicion falls upon you because you and the victim had several loud, angry arguments, and you were known to be right next door, at the time of the crime.

The prosecution would probably want the witnesses to your remark, "I wish that guy was dead!" to testify at your trial. I'm sure that any defense attorney worth his salt would motion the trial court to exclude that testimony. Why? Because the remark proves nothing. And because hearing that you made the remark might inflame the jury, might "prejudice" them against you. As you say Possum, "it sure makes you look bad", but considering the fact that, in my example, you did not commit the crime, then how would the witnesses testimony serve the ends of justice? In other words, since you are innocent, that testimony could only lead to a wrongful conviction.

[Darrowfan]

Preliminary Hearing Eli Bence Testimony:

Q. Is prussic acid a thing often called for in your store?
(Objection made.)
(Knowlton) I offer to show prussic acid is a thing that is almost never called for, simply for the purpose of showing how much more clear a man’s memory would be of such a singular circumstance as that. I can show it never was called for.
(Court) He may answer.
Q. Did you ever have a call for prussic acid before?
A. No Sir, not to sell over the counter, no sir. I mean to say by a person coming in, and calling for prussic acid, that I never had a call for it before.

I understand why you feel that this testimony is significant, Allen. But re-read it, and then ask yourself this question: What does that testimony actually prove? Does it prove that the very next day, Lizzie killed her parents with a hatchet? Does it even prove that Lizzie herself was the person who asked for the prussic acid. The only thing this testimony proves is that Bence had never before been asked to sell prussic acid over the counter.

[Allen]

I have read these questions. Over and over. These questions were asked to show why Bence would remember the woman who bought the prussic acid. Because she had walked in and asked for something he had never sold before, without a prescription, and it was a lethal drug. This was the purpose behind asking those questions. To show he remembered it as being Lizzie because it was so singular. And if we stick to one weapon as a method of murder, being the poison, and are closed minded enough not to see the larger picture of intent, any murderer who changes their weapon would not be suspect for changing their method of murder. What does it matter how they were eventually murdered? If she tried to buy poison and then set them on fire in their beds. The intent was there. This was the basis for the poison testimony. And if she had tried to buy cyanide, can you logically say she was going home to sit it on a shelf and look at it? I don't think the jury would have been that closed minded. I'm sorry if that offends I just don't. And I remain swayed by the fact that some of the best legal minds of that day stated that in their opinion the poison testimony should have been included. That for me holds more weight than any rehashed conclusions in 2013.

[Darrowfan]

I have read these questions. Over and over. These questions were asked to show why Bence would remember the woman who bought the prussic acid. Because she had walked in and asked for something he had never sold before, without a prescription, and it was a lethal drug. This was the purpose behind asking those questions. To show he remembered it as being Lizzie because it was so singular. And if we stick to one weapon as a method of murder, being the poison, and are closed minded enough not to see the larger picture of intent, any murderer who changes their weapon would not be suspect for changing their method of murder. What does it matter how they were eventually murdered? If she tried to buy poison and then set them on fire in their beds. The intent was there. This was the basis for the poison testimony. And if she had tried to buy cyanide, can you logically say she was going home to sit it on a shelf and look at it? I don't think the jury would have been that closed minded. I'm sorry if that offends I just don't. And I remain swayed by the fact that some of the best legal minds of that day stated that in their opinion the poison testimony should have been included. That for me holds more weight than any rehashed conclusions in 2013.

But isn't your argument about the "singularity" of Lizzie's alleged request contradicted by the following paragraph from the Witness Statement you cited: "Many sales had been made, and a number of persons refused. A description of those who were refused was obtained, but --none resembled the person who called on Bence. However, at P. S. Brown’s, a day or two before, a lady requested a sale of poison from clerk Gifford. She was refused. He could give no description of her."

I think that even if the prosecution had been allowed to present Bence's testimony, Lizzie's attorneys could easily counter by having the police officer give testimony about those witness notes. The jury would then hear from Bence that Lizzie's alleged request was "singular", but also hear from the police officer that "many sales had been made, and a number of persons refused".

So the prussic acid testimony may not have helped secure a conviction after all. It's a tough call.

[Allen]

Doesn't even say many sales of poison. Just says many sales were made, and many refused. Could have been many sales of anything. Doesn't say over the counter sales. Which Bence said prussic acid was not sold over the counter. Doesn't say who made the purchases. Or what kinds of purchases. And it doesn't even state what kind of poison was attempted to be purchased at P.S. Brown's. And Bence didn't work at P.S Brown's. So any sales made there didn't even apply to him at all. I'm not seeing how the police could have refuted him.

[Darrowfan]

Doesn't even say many sales of poison. Just says many sales were made, and many refused. Could have been many sales of anything. Doesn't say over the counter sales. Which Bence said prussic acid was not sold over the counter. Doesn't say who made the purchases. Or what kinds of purchases. And it doesn't even state what kind of poison was attempted to be purchased at P.S. Brown's. And Bence didn't work at P.S Brown's. So any sales made there didn't even apply to him at all. I'm not seeing how the police could have refuted him.

Well the notes had to be about people trying to buy poison, because that is the subject Bence was being questioned about. (I doubt that any customers were refused cigarettes, or soft drinks, or magazines.) The point is that Bence testified that nobody but Lizzie had ever tried to buy poison from him over the counter, but the police notes show that many people had tried, and had been refused. This would probably have confused the jury, I think. Note that at the end of the paragraph in the Witness Statement it says that "a lady" tried to buy poison at Brown's, but that he could give "no description". So the jury would be left wondering, "Did Lizzie try to buy poison at two different drug stores, or was it two different women trying to buy poison that week?" You see the problem.

[Allen]

I usually try to give the jury credit for being pretty smart. Just like I give Lizzie credit for being smarter than most people do. And I'm going to assume that any testimony given by the police officers wouldn't come directly from their notes and read like that. Most of the officers did not sit on the stand and read from notes. So I'm also going to assume there is less confusion in testimony. And since P.S. Brown's didn't even figure into anything I'm going to say no questions would have been asked about any sales there.

[Franz]

Allen, Darrawfan, NancyDrew and PossumPie, thank you for all your threads, very informative for me.

I wonder, if Lizzie did try to buy that poison, is it possible that she didn't want to kill anyone, she didn't want to clean her fur neither. But she said fur, an expensive object, hoping that she would probaby have more chance to get it? Maybe it was a little vanity affair as well?

Was Prussic Acid expensive? is it possible that she wanted to clean a cheap clothe, and instead of this, she said "fur"?

[Franz]

Do you all think it was actually Lizzie who asked the pharmacist to buy Prussic Acid? It was never 'proven' that it was her, and she denied every asking for it...

I apologize for that my thread is not directly related with that of PossumPie. But since there are here a lot of discussions about the evidence and the burden of the evidence, I decided to post the mine here, even though this is perhaps a little “politically” incorrect.

“Do you all think it was actually Lizzie who asked the pharmacist to buy Prussic Acid? It was never 'proven' that it was her, and she denied every asking for it...” when I read for the second time this Possumpie’s thread, I have this idea in mind: Lizzie said always that she was in the barn while her father was being killed every asking for her whereabouts. And if I understand well your discussion about the burden of the proof, I think that it should not be Lizzie to prove that she was in the barn, but it should be the burden of the prosecution to prove that Lizzie wasn’t there but in the sitting room to kill her father.

Yes, Lizzie did make some contradictions about what she was doing in the barn, but she said always that she was in the barn. The contradictions concerning what she was doing in the barn could not prove that Lizzie was not in the barn. In other word, the falsity of one part of her statement couldn’t prove that the other part was false as well. Lizzie might have told the truth while saying that she was in the barn, but told falsity while saying that she was eating pears there.

So, it should be the burden of the prosecutors to prove that Lizzie was not in the barn. Did thy prove it? The alleged evidence “no foot print was found on the floor of the loft” was it reliable? It seems questionable. Even if it was reliable, it could not prove that Lizzie was not in the barn: she could have been in the barn but never gone upstairs (but she lied that she did go there). For the temperature: it’s proved now that it was lower than usually believed. But even if the inside of the barn was very hot indeed, could this prove that Lizzie was not in the barn?

[PattiG157]

I'm not sure how I feel about the testimony coming into the trial, but I have read that three people heard Lizzie ask for the prussic acid in the drug store that day: Eli Bence, a clerk; Frank Kilroy, a medical student who was a customer that day and overheard her asking for the acid; and Frederick Harte, another clerk at the store. Personally, I doubt that all three of these men could be lying. One person MIGHT be lying, but three?

[PossumPie]

Correct me if I'm wrong, but no person who allegedly overheard or was directly involved in the conversation, none of them knew Lizzie ahead of time. That is what bugs me the most. Oh! A woman is accused of killing her parents, That MUST be the woman I overheard trying to buy poison. That prejudicial post-facto (after the fact) deduction sours it for me. IF they had known her ahead of time by name, and IF she had ended up using a different poison, say rat poison (warfarin) to kill them, THEN I would be more amiable to letting the testimony be included, but that whole thing the way it is smacks of rumor and innuendo...I believe Lizzie killed her parents..BUT I must say I don't agree on letting such flimsy testimony into the trial. Ironic that this happened not far from the Salem witch trials, where prejudicial rantings by a few young girls cost several women their reputations, and even their lives.

[Darrowfan]

Correct me if I'm wrong, but no person who allegedly overheard or was directly involved in the conversation, none of them knew Lizzie ahead of time. That is what bugs me the most. Oh! A woman is accused of killing her parents, That MUST be the woman I overheard trying to buy poison. That prejudicial post-facto (after the fact) deduction sours it for me. IF they had known her ahead of time by name, and IF she had ended up using a different poison, say rat poison (warfarin) to kill them, THEN I would be more amiable to letting the testimony be included, but that whole thing the way it is smacks of rumor and innuendo...I believe Lizzie killed her parents..BUT I must say I don't agree on letting such flimsy testimony into the trial. Ironic that this happened not far from the Salem witch trials, where prejudicial rantings by a few young girls cost several women their reputations, and even their lives.

Excellent post, Possumpie. I agree 100 per cent.

[Darrowfan]

Do you all think it was actually Lizzie who asked the pharmacist to buy Prussic Acid? It was never 'proven' that it was her, and she denied every asking for it...

I apologize for that my thread is not directly related with that of PossumPie. But since there are here a lot of discussions about the evidence and the burden of the evidence, I decided to post the mine here, even though this is perhaps a little “politically” incorrect.

“Do you all think it was actually Lizzie who asked the pharmacist to buy Prussic Acid? It was never 'proven' that it was her, and she denied every asking for it...” when I read for the second time this Possumpie’s thread, I have this idea in mind: Lizzie said always that she was in the barn while her father was being killed every asking for her whereabouts. And if I understand well your discussion about the burden of the proof, I think that it should not be Lizzie to prove that she was in the barn, but it should be the burden of the prosecution to prove that Lizzie wasn’t there but in the sitting room to kill her father.

Yes, Lizzie did make some contradictions about what she was doing in the barn, but she said always that she was in the barn. The contradictions concerning what she was doing in the barn could not prove that Lizzie was not in the barn. In other word, the falsity of one part of her statement couldn’t prove that the other part was false as well. Lizzie might have told the truth while saying that she was in the barn, but told falsity while saying that she was eating pears there.

So, it should be the burden of the prosecutors to prove that Lizzie was not in the barn. Did thy prove it? The alleged evidence “no foot print was found on the floor of the loft” was it reliable? It seems questionable. Even if it was reliable, it could not prove that Lizzie was not in the barn: she could have been in the barn but never gone upstairs (but she lied that she did go there). For the temperature: it’s proved now that it was lower than usually believed. But even if the inside of the barn was very hot indeed, could this prove that Lizzie was not in the barn?

You raise an interesting point, Franz. The burden of proof for the state was to prove the charges in the indictment, in other words, that Lizzie killed Abby and Andrew Borden. As part of their efforts, they would of course need to prove that Lizzie was not in the barn, as she said she was. However, bear in mind that even if they had proven that she was not in the barn, that doesn't prove she killed the Bordens. Proving that Lizzie was not in the barn would prove only ONE thing: that she lied about her whereabouts at the time of the crime. But the mere fact that she lied about her whereabouts would certainly lead most jurors to conclude that she was lying because she was guilty of the crime. That is why it was such a blow to the prosecution that her inquest testimony was excluded from the trial. Knowlton wanted the jurors to know that Lizzie gave conflicting testimony about her whereabouts.

[Allen]

Correct me if I'm wrong, but no person who allegedly overheard or was directly involved in the conversation, none of them knew Lizzie ahead of time. That is what bugs me the most. Oh! A woman is accused of killing her parents, That MUST be the woman I overheard trying to buy poison. That prejudicial post-facto (after the fact) deduction sours it for me. IF they had known her ahead of time by name, and IF she had ended up using a different poison, say rat poison (warfarin) to kill them, THEN I would be more amiable to letting the testimony be included, but that whole thing the way it is smacks of rumor and innuendo...I believe Lizzie killed her parents..BUT I must say I don't agree on letting such flimsy testimony into the trial. Ironic that this happened not far from the Salem witch trials, where prejudicial rantings by a few young girls cost several women their reputations, and even their lives.

Bence testified that he had seen Lizzie Borden before that day, and that he had been told it was her. And as for the rest of that post all I can say is WOW. Bence had no reason to lie. Neither did the other two people there. As Pattie said I can see if one person said it was her they might be mistaken, but three? They had as much reason to lie as John Morse had motive to murder Andrew and Abby. Which would be zero. They gained nothing by coming forward. Bence was a respectable member of the community. It wasn't the dark ages of witch hunts anymore in nineteenth century Fall River. As a matter of fact New England was embarrassed of it's history.

[Darrowfan]

Correct me if I'm wrong, but no person who allegedly overheard or was directly involved in the conversation, none of them knew Lizzie ahead of time. That is what bugs me the most. Oh! A woman is accused of killing her parents, That MUST be the woman I overheard trying to buy poison. That prejudicial post-facto (after the fact) deduction sours it for me. IF they had known her ahead of time by name, and IF she had ended up using a different poison, say rat poison (warfarin) to kill them, THEN I would be more amiable to letting the testimony be included, but that whole thing the way it is smacks of rumor and innuendo...I believe Lizzie killed her parents..BUT I must say I don't agree on letting such flimsy testimony into the trial. Ironic that this happened not far from the Salem witch trials, where prejudicial rantings by a few young girls cost several women their reputations, and even their lives.

Bence testified that he had seen Lizzie Borden before that day, and that he had been told it was her. And as for the rest of that post all I can say is WOW. Bence had no reason to lie. Neither did the other two people there. As Pattie said I can see if one person said it was her they might be mistaken, but three? They had as much reason to lie as John Morse had motive to murder Andrew and Abby. Which would be zero. They gained nothing by coming forward. Bence was a respectable member of the community. It wasn't the dark ages of witch hunts anymore in nineteenth century Fall River. As a matter of fact New England was embarrassed of it's history.

Well, Bence may not have been lying, but he could have been mistaken. You say we have no reason to doubt what he said. But we also have no reason to automatically assume it was accurate, either. It could have been a woman who resembled Lizzie, could it not? It could have been a woman about Lizzie's age, height, weight, general appearance, etc. Bence, who had heard about the Borden killings, could have remembered a young woman recently asking for prussic acid, and could have thought to himself, "Was that Ms. Borden? By God, I think it was!" He could have then spoken to the other two witnesses, and persuaded them that it was indeed Lizzie.

One other thing, Allen. You defend your position by pointing out that Bence was a respectable member of the community. I don't doubt that. But couldn't the same be said of Lizzie? In other words, if you take into account Bence's "respectability" as a reason to believe his allegation, shouldn't we take into account Lizzie's "respectability" when she denies the allegation?

[Allen]

And what other way would there be for the testimony from witnesses to come out besides after the fact of the murders? It could not very well come out before the murders. And since she was refused the sale and there really was no reason to report it to police, because no crime had been committed, why should they have reported it at any other time? And Lizzie's respectability in the community is questionable. Bence was not accused of murder. He was reporting information. Lizzie's respectability went down the toilet when she killed her parents wouldn't you say?

[Franz]

...
They (Bence and his colleagues) had as much reason to lie as John Morse had motive to murder Andrew and Abby. Which would be zero. They gained nothing by coming forward...

Allen, I agree with you that Bence's testimony was reliable, he gained nothing by lying. But for Morse, I think differently. Bence had nothing to do with the Borden family, but could we say the same for the account of Morse? Morse had a good relation with Andrew (and Abby), But if - I say "IF" - this relation were only apparent, and in reality if Morse hated Morse very much for financial or other reasons unknown to us, being friendly only to decieve Andrew,then, Morse would have been satisfied by the horrible death of Andrew. He could have gained this great satisfaction. Money is not the unique motive for killing.

[Franz]

... However, bear in mind that even if they had proven that she was not in the barn, that doesn't prove she killed the Bordens. Proving that Lizzie was not in the barn would prove only ONE thing: that she lied about her whereabouts at the time of the crime. But the mere fact that she lied about her whereabouts would certainly lead most jurors to conclude that she was lying because she was guilty of the crime. That is why it was such a blow to the prosecution that her inquest testimony was excluded from the trial. Knowlton wanted the jurors to know that Lizzie gave conflicting testimony about her whereabouts.

Exactly. The only thing I would like to say is that Lizzie gave conflicting testimony only about what she was doing in the barn, not about her whereabouts (she said always she was in the barn. This could have been a lie, but in itself it was not a conflicting testimony. But the State just failed to prove that it was a lie: it could be so, it could be not as well.)

[PossumPie]

1. Franz, I know you are wild about Morse, BUT this thread was about Prussic Acid. Please keep your Morse theory in the Morse thread.
2. Allen, I NEVER said anyone lied about Lizzie. Eyewitness testimony is the most flimsy. I just re-watched TV coverage of the World Trade Center attacks of 9/11. People standing on the street watching the second plane hit described it as a 'small prop plane" a "Small commuter jet" a "Large airbus" and "an American Airlines jet" Standing there watching! We may all see visually the same thing, but our brain interprets it differently. There have been experiments in colleges where a man runs into a classroom, takes something off the profs desk, and runs out. Students asked to Identify him say red hair, black hair, bald, tall, short, fat thin, In other words not just subtle differences but completely inaccurate descriptions. I give almost no credence to an 'eyewitness account' unless it is someone well known to the person. :That was my neighbor! or Hey, that's my cousin! Even you admit that the way Bence "knew" Lizzie was he had her pointed out to him "once before" Wow, I don't put much faith in that. As I said I believe she was guilty, but that whole poison thing sounds like a witch hunt.

[Allen]

I studied the reliability of witness testimony. I had to write papers on it. I'm well aware it can be inaccurate. Especially if there is a stress factor involved. People are not able to focus as well under stress. Or if they just get a quick look at someone. But if I walk up to to the check out counter in the store and chat with the lady as she is ringing me up I could recognize her again afterward. My attention was called to her. We spoke. Witness testimony can also be accurate. And to discount eyewitness testimony unless it's someone well known to the person doesn't make sense. Most victims of crimes such as robbery, and other assorted crimes, have never seen the perpetrator before. Do we completely discount their descriptions because the person was not well known to them? Eyewitness testimony can be faulty, yes. There have been cases of mistaken identity. But also in most cases that you used as an example the person only had a quick look or was under some kind of stress. Such as the towers collapsing. They didn't just stand and have a conversation with someone about whether or not they could purchase something. Looking directly at the person the whole time. And you keep saying witch hunt. I'm not sure how it can be compared to a witch hunt. That analogy just doesn't work for me. They put Bence in sight of Lizzie so he could see and hear her, and he said yes that is the woman.

And if I am going to be that hard to identify afterward I might have to re-evaluate the idea of a life of crime.

[PossumPie]

I studied the reliability of witness testimony. I had to write papers on it. I'm well aware it can be inaccurate. Especially if there is a stress factor involved. People are not able to focus as well under stress. Or if they just get a quick look at someone. But if I walk up to to the check out counter in the store and chat with the lady as she is ringing me up I could recognize her again afterward. My attention was called to her. We spoke. Witness testimony can also be accurate. And to discount eyewitness testimony unless it's someone well known to the person doesn't make sense. Most victims of crimes such as robbery, and other assorted crimes, have never seen the perpetrator before. Do we completely discount their descriptions because the person was not well known to them? Eyewitness testimony can be faulty, yes. There have been cases of mistaken identity. But also in most cases that you used as an example the person only had a quick look or was under some kind of stress. Such as the towers collapsing. They didn't just stand and have a conversation with someone about whether or not they could purchase something. Looking directly at the person the whole time. And you keep saying witch hunt. I'm not sure how it can be compared to a witch hunt. That analogy just doesn't work for me. They put Bence in sight of Lizzie so he could see and hear her, and he said yes that is the woman.

And if I am going to be that hard to identify afterward I might have to re-evaluate the idea of a life of crime.

Allen, I'm not trying to be difficult. If you were robbed, and the cops caught someone nearby, and there was no other evidence other than you saying "that's the guy" he would never be convicted. You say most victims of crime have never seen their attacker before, and that is true, BUT they would never be convicted if the only evidence is you saying "That's him". Witness testimony must be coupled with some other evidence. A receipt for something else she bought at the same time with her signature perhaps. If they were old friends, yes, but seeing her once, and having someone say That is Lizzie Borden (third party hearsay)...no. Too flimsy.