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In US criminal law, as in the criminal law of many countries, establishing criminal intent or motivation (what is referred to as mens rea) is essential to the prosecution's case. But the same is not necessarily true in US civil cases. Civil cases concern themselves with events, actions, and conduct, and often do not need to go further. The questions asked in tort cases are: Did injury occur through this action and Is the defendant liable? If the event at the heart of the case is brought about through negligence - my poorly parked car drifting into my neighbor's - it makes no difference if my character is unblemished and my intentions free of any malice toward my neighbor. I or my insurance company will still have to pay for my neighbor's fender if the case goes against me.
If, however, my car rolls over my neighbor and my negligence is egregious, perhaps even part of a pattern of negligence, then we may have a criminal case here, with the charge of criminal negligence. Then my character, at least, will need looking into.
The problem in criminal law of establishing motivation and the requisite personality for the deed makes the deployment of masterplots especially important. As we noted in Chapter Three, masterplots come equipped with types — characters whose motivation and personality are an integral and often fixed element of the masterplot. As such, they can be powerful rhetorical tools when activated. They can absorb the complexity of a defendant's human nature into the simplicity of type. In the trial of Lizzie Borden, the prosecution pulls out all the stops in the deployment of masterplots and types. Even the handleless hatchet is made to fit into a masterplot — no less a one than the story of Christ. This happens during prosecution's attack on defense's scornful belittlement of the hatchet: "What is the sum of it all? A hatchet head is found in that cellar, despised and rejected of men at first, because a false king was set up for them to worship, and it was only when he was deposed that they thought of trying what was there in this one" (370). Here prosecution invokes the prophecy of Christ that is commonly purported to be in Isaiah — "He is despised and rejected of men; a man of sorrows and acquainted with grief" (Isaiah, 53:3) - which would have rung a responsive chord in the hearts of this nineteenth-century American jury. But as so often with this kind of rhetorical move, it depends for its effect on not thinking too closely about the implications (is the handleless hatchet an agent of redemption, sent by a merciful God? and are we to "worship" it?).
In constructing Lizzie from available masterplots, defense has an easier time of it, since so much of the visible record would indicate some conformity between Lizzie's life and the masterplot of the virtuous daughter. She pursued her household chores, attended church, did good works, cared for her father (who met his death wearing her ring on his finger, given to him when she was twelve). Defending counsel underscores this in his summation: "The heart waits to learn what theories they will get up about this woman without evidence. First, create your monster, and then put into him the devil's instincts and purposes, and you have created a character. But start with a woman, with woman's impulses and a daughter's love, and your imaginings are foreign and base" (313). Note how defense plays the gender card here, arguing that women by their nature are incapable of such base acts. Even in his grammar he makes evil incompatible with womanhood — put into him the devil's instincts."
Counsel for the prosecution counters by taking up this gender assumption directly: "While we revere the sex," he tells the all-male jury, "while we show our courtesies to them, they are human like unto us. They are I better than we; they are no worse than we." So far so good, but by this state of equality in the scale of goodness, prosecution does not mean to imply that women's characters are the equivalent of men's. There is a whole range of less appealing female types and stereotypes ready to hand for him to draw on, and this he proceeds to do: "If they [women] lack in strength and coarseness and vigor, they make up for it in cunning, in dispatch, in celerity, in ferocity. If their loves are stronger and more enduring than those of men, am I saying too much that, on the other hand, their hates are more undying, more unyielding, more persistent?" (327). Establishing the type, he follows through by invoking a widely known narrative rendering of a chilling masterplot:
I read in my library of history and fiction that many of the most famous criminals have been women. I am told by the great master of human nature, the poet who was almost superhumanly wise, that when the courage of a man failed, it was the determination, the vigor, the relentless fury of a woman, that struck the king down, that her husband might succeed to the throne. (327)
Calling up the masterplot of Macbeth and the type of Lady Macbeth, prosecution not only invests his argument with the aura of Shakespeare's "superhuman" wisdom, but holds up to these men in the jury the model of a woman who can both kill men and dominate her husband. How effective it was, we can only guess. The prosecuting attorney draws on male masterplots and types as well in constructing Lizzie - Cain (340, 342), Judas (346) - but he throws most of his effort behind the elaboration of a specifically female type, stressing its otherness from types that the all-male jury might be capable of identifying with. In this way, he meets the challenge of the strangeness of the murders, their improbability. Projecting this type of woman permits the construction of an antagonist whose psychology is as mysterious as the crime. "You are neither murderers nor women," he says to the jury, "You have neither the craft of the assassin nor the cunning and deftness of the sex" (357). Here he not only links murderers and women, but also places both categories outside normal male experience. He thus renders invalid any effort by "normal" men to draw on their experience or empathetic understanding in dealing with these radical others. Women can do things tar beyond the capabilities of ordinary men. How was it, for example, that Lizzie was not covered in blood? "I cannot answer it. Women's deftness, the assassin's cunning, is beyond us" (363). Where is the handle to the handleless hatchet? "There are plenty of ways in which a woman can conceal that sort of thing" (364).
In non-fiction narrative, as a trial purports to be, the ultimate form of inapplicable motivation is madness. It follows that mad people can bring about 'he weirdest "true" stories, stories that defy our common understanding of how people (even women) are motivated. Defense knows this, and in its opening comments tries to neutralize the power of this type by emphasizing its improbability:
Fact and fiction have furnished many extraordinary examples of crime that have shocked the feelings and staggered the reason of men, but I think no one of them has ever surpassed in its mystery the case that you are now considering. The brutal character of the wounds is only equaled by the audacity, by the time and the place chosen, and, Mr Foreman and gentlemen, it needed but the accusation of the youngest daughter of one of the victims to make this the act, as it would seem to most men, of an insane person or a fiend. (253)
Prosecution, undeterred, seizes on this possibility as well. Lizzie was not simply a woman, which was bad enough considering a woman's characteristic cunning and ferocity, she was also crazy: "We find her then set in her purpose, turned into a maniac,... and so the devil came into her, as God grant it may never come to you or me, gentlemen" (374). And this is how Lizzie Borden has gone down in history: the crazy lady who killed her parents for no reason at all. Before the trial, she was already immortalized in a rhyme that has survived to the present day:
Lizzie Borden took an axe,
And gave her mother forty whacks.
When she saw what she had done,
She gave her father forty-one.
This, too, is a narrative. It tells the story of someone so ferocious and so bizarre in her motivations that all it took to kill her father was her satisfaction with the job she had done on her mother. The jurors, however, thought differently. They acquitted Lizzie, and she went on to live comfortably in her father's house for another thirty-four years.
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