114 Slide – American State Trials 1918 Volume X Leo Frank Document

82 X. AMERICAN STATE TRIALS.

but it is whether every other hypothesia is actually excluded,
excluded to a moral certainty. That is the question! That
is the question! And the enlightened conscience of every
juror must answer it as he would answer it if the life of his
own child hung upon the answer.

And how are you to answer it, gentlemen? The ‘‘how’’
brings to light the incurable defeet, the inherent vice of cir-
eumstantial evidence. You are to reason out an unknown
transaction; you are to find out by the eye of the mind what
could not be seen by the actual eye. You are to look at a
place you never saw (the scene of a tragedy), fix the drame-
dis persone, and assign to each actor his part. You are to
arrange the incidents in the actual order of occurrence, bring
each actor on the stage ai the right moment of time, and de-
termine infallibly the words, gestures and action of each.
You are especially to avoid a mistake of identity or change
of cast. But your difficulty does not end here. You reason
on what you have heard; but you must imagine also! You
must task your intellect by running over the possible and
almost infinite combination of circumstances in search of
some other hypothesis which might explain all you know.
You are to do what the Siamese king no doubt honestly tried
to do, before he told the Dutch ambassador he was a liar; that
is, hunt up some possible law of nature which would make
water hard enough to bear an elephant, You are to invoke
your creative power, your faculty of invention to see if every
supposition is excluded, except that which the prosecution
makes, to explain the circumstances detailed in evidence. If
you should not happen to think of something which might
account for all you have heard, if it should escape the counsel,
the single counsel for the defense, the prosecution asks the
life of the prisoner for our failure! And now you see also
how fatal fecling and prejudice against him would be to the
fair exercise of this power on your part. How such a state
of mind would unfit you to hunt for another hypothesis than
that which would condemn! Be assured, the prosecution will
not aid you in this search. I may try, and fail; but neither
their supineness nor my failure can discharge you from the