"What If John Wilkes Booth Went To Trial?"

[Craig Hipkins]

Ok, I was inspired to ask this question after reading Joe's post on Mary Lincoln's new insanity trial.
Just for kicks and giggles the question is: If Booth had been captured alive and went to trial would he have been allowed to testify on his own behalf? Or would the military court have stifled his testimony also?
I think that we can all agree that there would have been 5 people swinging from the gallows on July 07.

Craig

[Gene C]

I'm not sure Mary would have been hung if they had caught Booth alive.

He probably would not have been allowed to testify.

[Thomas Thorne]

No defendant in a Federal trial-civil or military-was allowed to testify on his own behalf until 1878. Only one state-Maine-permitted defendant testimony in 1865. England did not permit this until 1898.

The prohibition of defandant testimony-and defendant statements and witnesses even quoting defendant statements-except those made during the commission of a crime derived from the following Common Law precept: As trials were designed to elicit the truth and defendants were considered as a class least likely to tell the truth, their testimony was not to be trusted. It was also felt that defendants testifying would have an unfair advantage over those of their colleagues charged with the same crime who exercised their right not to testify.
Tom

[Rob Wick]

I have to agree with Gene. I doubt Mary Surratt would have hung.

If I'm not mistaken (and at this stage of the day it's quite possible I am) I don't think Booth could have testified. Even if he could have, I doubt the military commission (and Stanton especially) would have wanted it.

Best
Rob

[RJNorton]

Tom, possibly I did not understand everything in your post, but on June 21, 1865, William E. Doster read a statement from George Atzerodt to the court. On the face of it, I would think this would be termed a defendant's declaration; yet it appears from your post that this statement of Atzerodt's should not have been allowed to be introduced. Any idea why an apparent exception was made for Atzerodt at the trial? Or am I misunderstanding something? Thanks.

Offhand I do not recall defendants' declarations from Mary Surratt, Lewis Powell, David Herold, Samuel Mudd, Ned Spangler, Sam Arnold or Michael O'Laughlen being read to the court. Only Atzerodt was allowed to do this (through Doster).

[Thomas Thorne]

Roger,it would seem that Atzerodt;s statement did on the face violate the common law precept I described. But apparently most legal policies seem to have exceptions, I don't have my references at hand but remember reading a 1980's Surratt Courier and American Brutus or possibly a separate article by Kaufman on the subject of defendant testimony, The profound difference with modern courtroom practices made a great impression on me, a non lawyer. who has enjoyed watching movies set in the 19th century depicting defendants testifying at trial being subjected to withering cross examination.
.
The Lincoln trial record is replete with admonition to witnesses not to quote what the defendants said but I remember puzzling exceptions that did not come remotely close to the doctrine that defendants' words could only be quoted while they were committing a crime.

I am equally puzzled as to why Atzerodt's statement was permitted and if legal why the other defendants did not submit their own statements. Perhaps Atzerodt's statement was considered to be a confession. Did he not admit being part of the kidnapping conspiracy and being present with JWB and friends at the crucial 4/14/65 meeting or meetings?
Tom

[RJNorton]

Tom, indeed he did. The first two sentences of what Doster read to the court were, "I am one of a party who agreed to capture the President of the United States, but I am not one of a party to kill the President of the United States, or any member of the Cabinet, or General Grant, or Vice-President Johnson. The first plot to capture failed; the second - to kill - I broke away from the moment I heard of it."

Possibly Atzerodt was trying to convince the court that he saved Andrew Johnson's life by not killing him. Still, I think it was a very risky move by Doster to read this, as I thought the government never acknowledged the difference between the two plots.

[MaddieM]

Tom, possibly I did not understand everything in your post, but on June 21, 1865, William E. Doster read a statement from George Atzerodt to the court. On the face of it, I would think this would be termed a defendant's declaration; yet it appears from your post that this statement of Atzerodt's should not have been allowed to be introduced. Any idea why an apparent exception was made for Atzerodt at the trial? Or am I misunderstanding something? Thanks.

Offhand I do not recall defendants' declarations from Mary Surratt, Lewis Powell, David Herold, Samuel Mudd, Ned Spangler, Sam Arnold or Michael O'Laughlen being read to the court. Only Atzerodt was allowed to do this (through Doster).

What was the reasoning behind not being allowed to testify on one's own behalf?

[Thomas Thorne]

As trials were designed to elicit the truth and defendants were considered as a class least likely to tell the truth, their testimony was not to be trusted. It was also felt that defendants testifying would have an unfair advantage over those of their colleagues charged with the same crime who exercised their right not to testify.
Tom

[LincolnMan]

Regardless of the legalities in force at the time-Booth would have loved to have had an opportunity to openly and publicly state his case. He even wrote something about going back to town to clear himself-or something to that effect. Another stage for the actor to perform?

[L Verge]

Maddie,

I avoid legal issues like the plague, but I believe that not allowing defendants to testify on their own behalf was also designed to protect them, if innocent, from cunning prosecutors who could turn their words against them.

I think John Wilkes Booth in a modern court room would have a field day - can we bring Johnny Cochran back to life to be his defense attorney?

[Tom Turner]

Laurie is absolutely correct. This was also a protection against self-incrimination. The same procedure was not confined to military courts; it was also followed in civil courts with the exception of the state of Maine. So, if all the conspirators (including Booth had he survived) had been tried in a civil court they still wouldn't have been allowed to testify.

Perhaps a written statement was allowed since Azerodt couldn't be cross-examined about it and the court could simply weigh its value for what they thought it was worth. In the case of Arnold and O'Laughlen the commission apparently did make a distinction between their role in the kidnaping plot and their much less clear involvement in the murder. But Atzerodt admitted Booth had approached him to kill Lincoln (his defense being that he failed to carry out the murder), making the court a lot less likely to receive a self-serving statement in a positive manner. After all he took a room at the Kirkwood House and was hanging out their on April 14.

[RJNorton]

If we take ol' George at his word that he was agreeable to the kidnapping plot but never the killing plot, why did he check into the Kirkwood House as Booth ordered? It was upscale, and George was used to staying at the more modest Pennsylvania House. If George was only interested in the kidnapping plan why would he agree to get a room at the Kirkwood House? Can we consider the simple fact of checking into the Kirkwood House as evidence he did at one point consider killing Johnson?

[Laurie Verge]

Tom,

It's great to see you posting here (especially when you agree with me!). I just recommended your book, Beware The People Weeping, to a customer here at Surratt House the other day and realized that it's another one that I need to re-read.

Folks, I believe that I am correct in saying that Dr. Turner is the first professional historian to actually publish on the subject of the Lincoln assassination when he authored Beware...

And, to get back on thread, could the reading of Atzerodt's statement be part of an attempt to show that he was actually turning state's evidence against Booth and the others?