8.1: Introduction

Contrary to common belief, all evidence was not created equal. Evidence can have varying weight in courtroom proceedings. Some evidence, such as circumstantial or testimonial evidence, has less weight than others, like video or physical evidence, which has more. Evidence can prove or disprove a fact in question. Evidence can prove whether a crime was or was not committed. It can inculpate or exculpate a suspect. It can assist with the reconstruction of a crime in order to assist the lawyers, judges, and jurors to understand the incident and sequence of events that encompass the crime. Unfortunately, evidence can also prove to be prejudicial.

Figure 8.1.1: The Boston Massacre by Paul Revere. Public Domain

On March 5, 1770, a party of the British 29th (Worchestershire) Regiment stood in rank before a crowd of peaceful protestors, angry over the provisions of the Stamp Act, and without cause or merit was directed by a captain to open fire on the crowd, killing three and fatally wounding two others who were carried from the scene. A British “loyalist” also gave fire upon the crowd from a window of the Butcher’s Hall building. This unprovoked attack upon a peaceful crowd was the tinderbox that started the Revolutionary War of Independence. That is what you would think, and likely learned in school if you are of a certain age, if you were just to look at the famous engraving by Paul Revere entitled The Boston Massacre or The Bloody Massacre.

In truth, the events that led to the discharge of muskets on March 5, 1770, were a bit more disorganized. The crowd that had assembled were definitely not “peaceful” by any means. The trouble started earlier in the day when Private Hugh White, of the 29th Regiment, was on lone sentry duty in front of the Customs House. Edward Garrick, a young wig maker, had approached Private White and chastised him for not paying for a wig that he had ordered. An argument ensued and Private White struck Edward across the head with the butt of his musket. The injury was not great, but when word got out of the incident, a large crowd gathered, some armed with clubs, who began taunting the soldier. As the mob grew and joined by a number of sailors from the docks, Private White became concerned and called for a party of soldiers, six in number and one corporal, to respond as reinforcements, with Captain Thomas Preston in command of the small group. Captain Preston attempted to calm the crowd and promised to investigate the incident, but this did not satisfy the mob, which was now led by Crispus Attucks, a former slave of great size and strength. Captain Preston, who had previously ordered bayonets to be affixed to the muskets and the weapons loaded, assembled the soldiers in a skirmish line. According to H. Evergard in the history of the Worchestershire regiment, the following account transpired, with a statement by Captain Preston:

‘The mob pressed closely upon them, and advanced up to the points of the bayonets. The soldiers stirred not a step from where they were posted, and merely used their weapons to keep off the mob. Emboldened by their apparent fear, (Crispus) Attucks and the sailors, giving three loud cheers, pressed closer upon the troops, and with clubs beat their bayonets and muskets, crying out to the rest, Come on, don't be afraid of 'em; they dare not fire. Knock 'em over! Kill 'em!" Presently Attucks aimed a blow at Captain Preston, who was using every endeavour to appease the fury of the populace. The blow fell on the captain's arm, and knocked down the musket of one of the men, the bayonet of which was seized by the mulatto (Attucks). At this time there was a confused cry, proceeding from some persons behind Captain Preston, "Why don't you fire! Why don't you fire!" Montgomery, the private whose bayonet was seized by Attucks, and who in the struggle was thrown down, soon rose to his feet in possession of his gun, and immediately fired. Attucks fell dead. This was followed by straggling shots from five or six others. Three persons were killed, five dangerously wounded, and a few more slightly. The populace instantly retreated, leaving the killed on the ground, but soon returned to carry off the bodies.’

"On the people assembling again," said Captain Preston, in his written defense, "to take away the dead bodies, the soldiers, supposing them coming to attack them, were making ready to fire again, which I prevented by striking up their firelocks with my hand.”

If Captain Preston is to be believed in his testimony, the depiction of events as recorded by Paul Revere would suggest that the soldiers fired upon the crowd as they peacefully returned to carry off the dead and wounded, which did not happen.

In fact, at the time the Revere engraving was circulating around Boston, the trials of Captain Preston and the eight soldiers who fired on the crowd, causing the deaths of Crispus Attucks, Samuel Grey, James Caldwell, Samuel Maverick, and Patrick Carr, were about to begin. John Adams, one of the Founding Fathers of the country, represented the defendants in a bifurcated trial. The first trial was held on October 24, 1770, and lasted six days. The trial was based primarily on eyewitness testimony, which was often contradictory. Some prosecution witnesses could not even agree upon what Captain Preston was wearing; however, it came down to the testimony of a few witnesses who saw Captain Preston standing in front of the soldiers when they fired. In fact, Newton Prince, a freed slave, testified that he saw Captain Preston standing in front of the soldiers and, “Heard no orders given to fire.” John Adams successfully argued that had Captain Preston given orders to fire, he certainly would not have been standing in front of the muskets. No one testified that a shot was fired from the Butcher’s Hall building windows. The jury delivered a not-guilty verdict. Next came the trial of the eight soldiers, William Wemms, Hugh White, Hugh Montgomery, James Hartigan, William McCauley, Mathew Kilroy, William Warren, and John Carroll, on November 27, 1770. John Adams again represented the defendants. There was no argument that the eight soldiers on trial were present during the incident, and that some had discharged their muskets, which led to the deaths. This was a fact that made the job of the prosecution easy. The defense needed to argue that the soldiers fired in self-defense. Once again, the evidence was primarily that of eyewitness testimony. Important to the defense was the testimony of Surgeon John Jeffries, who tended to Patrick Carr as he was dying. Surgeon Jeffries testified that Patrick has made a deathbed statement saying that he did not blame the soldiers for firing to defend themselves. In Surgeon Jeffries own words as documented by Hiller Kobel in his 1996 book The Boston Massacre, “He told me that he was a native of Ireland, that he had frequently seen mobs, and soldiers called upon to quell them…he had seen soldiers often fire on the people in Ireland, but (he) had never seen them bear half so much before they fired in his life.” In other words, one of the victims of the shooting, as he lay dying, confessed to his surgeon that the soldiers acted in self-defense. In closing arguments, the prosecution argued that the soldiers could have simply walked away from the fray as they possessed an avenue of escape. In his closing argument, John Adams provided the following:

‘I will enlarge no more on the evidence, but submit it to you.—Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence: nor is the law less stable than the fact; if an assault was made to endanger their lives, the law is clear, they had a right to kill in their own defence [sic]; if it was not so severe as to endanger their lives, yet if they were assaulted at all, struck and abused by blows of any sort, by snow-balls, oyster-shells, cinders, clubs, or sticks of any kind; this was a provocation, for which the law reduces the offence of killing, down to manslaughter, in consideration of those passions in our nature, which cannot be eradicated. To your candour [sic] and justice I submit the prisoners and their cause.’

The trial lasted nine days. In the end, the jury deliberated for two hours before rendering a verdict: William Wemms, Hugh White (the soldier whose actions began the series of events), James Hartigan, William McCauley, William Warren, and John Carroll were acquitted of the charges outright. Hugh Montgomery, who had fired the first shot, and Mathew Kilroy were found guilty of the lesser charge of manslaughter. However, John Adams successfully argued for the application of an obscure English law called the Benefit of Clergy, which allowed for a reduced sentence for first-time offenders. Their punishment was to have their right thumbs branded; likely with an ‘M’ for murder.

Obviously, the Revere engraving would never have been allowed in courtroom proceedings as evidence; however, it was available to the jury before the trial began. In the end, it did not influence their decision. It did likely reflect upon, or influenced, eyewitness testimony of the event, which was contradictory at the trial. We must consider that the engraving was the photograph of the day. Engravings, like photographs, can provide an altered perception of the facts. Photographs can be altered using computer software or artificial intelligence. That is why it is essential that those experts who are providing testimony in court are of the highest moral character and can testify without hesitation that the photographs are a true and accurate representation of the scene, event, or item of evidence, and that the images are free of manipulation. Also of importance is the role of the crime scene analyst or reconstructionist who can render an opinion as to the accuracy of the image when compared to the evidence collected from or the conditions of the scene.