by Jill Lepore
Wonder Woman, newspaper strip, September 14, 1944 (illustration credit 8.1)
The class was a graduate course called Legal Psychology, held at American University, in Washington, D.C. It met twice a week, in the evening, beginning in March 1922. There were eighteen students; all of them were lawyers. They had come to the lecture hall, a building at 1901 F Street, after either a day at the office or a day in court; many of them worked for the government. In the course catalog, the professor, William Moulton Marston, had listed a prerequisite: “Students must have a working knowledge of the principles of Common Law to qualify for this course, which is especially designed for practicing attorneys and lawyers having a genuine and active interest in raising the standards of justice in the actual administration of the law.”2 He remained possessed of a certain ambivalent idealism.
Marston finished reading whatever was written on that sheet of yellow paper, said something to the Texan, and sent him on his way. Then, turning to his class, he informed his students that the man who had just left the room was not, in fact, a messenger at all; he was, instead, an actor, following a script written by Marston, as part of an elaborate experiment.
Imagine, Marston went on, that the man who was here a moment ago has since been arrested and charged with murder. Imagine, too, that you have all been summoned as witnesses. Please write down everything you saw.
Eighteen lawyers picked up their pencils.
In preparing this experiment, Marston had identified 147 details the students could have noticed—the number and color of the books the messenger held, for instance, and that he held them under one arm, his left. After the students had written down all they had observed, Marston examined them, one by one; then he cross-examined them. After class, he scored their answers, grading them for completeness, accuracy, and “caution” (you’d get a point for caution if, upon either direct or cross-examination, you said, “I don’t know”). Out of 147 possible observable details, the students, on average, noticed only 34.
Everyone flunked. And no one, not a single student, had noticed the knife.3
Marston based this experiment on one he’d read about in John Henry Wigmore’s twelve-hundred-page book, The Principles of Judicial Proof as Given by Logic, Psychology, and General Experience, published in 1913.4 Despite his feud with Münsterberg, Wigmore believed that no science was more important to the law than psychology and that no aspect of psychology was more important to judicial proof than the study of testimony.5 Wigmore described an experiment conducted by Arno Gunther in 1905. Gunther had arranged for a messenger to enter a lecture hall, after which he had asked his students to report the details of the scene. Gunther’s scene included thirty details, starting with these:
1. The time was 3:45 p.m.
2. The man was medium height, medium large.
3. His hair was brown.
4. He had a small brown mustache, no beard.
5. He wore glasses, i.e. spectacles.
6. He had on an overcoat, of black cloth, and buttoned.
7. He had on a dark suit.
8. A soft hat, dark brown.
9. No gloves.
10. In his hands he carried cane, hat, and a letter.
11. The cane was brown, with a black handle.
12. The man was 21¾ years old.
13. On entering he did not knock.
14. After entering, he said: “Excuse me, Mr. G, may I speak with you a moment?”
15. Mr. G replied, “Certainly. Come in.”
16. The visitor stepped forward and handed a letter,
17. saying, “I have here a letter to be handed to you.”6
Marston followed Gunther’s design closely. But to Gunther’s incident he added a knife. Marston was less interested in the reliability of testimony than in the reliability of juries, so, unlike Gunther, he didn’t end his experiment after pointing out to his students that they’d flunked. Instead, he collected their evidence and submitted it to juries.7 “I have arranged here for the entire testimony of my 18 witnesses to be submitted separately to two juries,” Marston reported to Wigmore, “one of 12 men and one of 12 women.”8 Marston’s study of the reliability of testimony was really a study about women’s political participation.
Gaining the right to vote had by no means led automatically to female jury service. In 1921, after much lobbying by women, six states changed their laws to allow women jurors. But by 1922, women still did not serve on juries in thirty-one states, or in the territories of Alaska and Hawaii.9 Marston wanted to see if he could get results that would cast light on the debate over whether women could be relied on to weigh evidence as well as men.
In this research, Holloway helped. She’d taken a job in Washington with an information service founded by Frederic Haskin in 1915. Haskin wrote a syndicated newspaper column, fielding readers’ questions. Holloway researched his answers. She worked so fast, she said, that she could dictate forty letters before lunch. At the university, when Marston didn’t feel like delivering his lectures, he had Holloway deliver them for him. She’d grown bitter; she resented his students. “There was a group of four men up front who obviously were brainier than I was and who talked to each other while I was lecturing,” Holloway said. “So one day I called one of them up and said to him, ‘You know, So and So, nobody is going to give a good G[od].D[amn]. when you flunk this course.’ ”10
For Marston’s study of testimony, he asked Wigmore to serve as judge. Wigmore agreed. Marston enlisted two other judges, too: Dr. Charles C. Tansill, an American historian at the Library of Congress, and Emily Davis, a young “newspaper woman and correspondent.” (Davis had interviewed Marston about the deception test.) One thing Marston was trying to determine was whether Wigmore, the nation’s foremost authority on the law of evidence, would be any better at weighing testimony than Tansill, a historian, or Davis, a journalist and a woman. But what Marston was most keen to discover was whether women were competent as jurors.11
Working with Holloway, Marston found that, in measurements of accuracy and completeness in their evaluation of testimony, the women jurors scored better than the men jurors: “They were more careful, more conscientious, and gave much more impartial consideration to all the testimony than did the male juries.” Women were also better judges. Davis scored better than both Tansill and Wigmore: “Her findings were more complete and more accurate than those submitted by any male judge.”12
It was an interesting finding. Holloway, later in life, came to believe that this research had been her Radcliffe master’s thesis. But nothing much came of it. Marston lost interest in the subject—nothing held his interest for long. Also, by the time he wound up his study of testimony, he’d got wrapped up in a murder trial.
On March 10, 1922, ten days before American University’s spring semester began, James Alphonso Frye, twenty-two, was indicted on charges of first-degree murder, accused of killing a Washington physician named Robert Wade Brown. Brown had been shot to death in the front hall of his house. A $1,000 reward had been offered for information leading to the killer.13 In the summer of 1921, Frye was arrested for robbery, and, in the course of the investigation of that crime, John R. Francis, a dentist, told the police that Frye had killed Brown.14 Frye, Brown, and Francis were all black. During a police interrogation, Frye confessed to the murder. He said he had gone to Brown’s house to get medicine for gonorrhea and had accidentally shot him during a struggle that began when Frye said he didn’t have any money and Brown refused to give him the medicine. Frye said, “I tried to run to the door and he grabbed me again and knocked me down and I told him to put his hands up and he kept on hitting me, hitting me on the head, and in the struggle I think that my gun was fired.”15 The announcement that Brown’s killer had been found, like the murder itself, made national news.16
In November 1921, Frye was tried for robbery in a criminal court headed by Chief Justice Walter McCoy; Lester Wood served as attorney for one of Frye’s codefendants, a man named William N. Bowie.17 Wood
, twenty-five, was an auditor for the U.S. Shipping Board.18 He was also a student at American University’s law school, where he was studying with Marston. Wood was defending Bowie to gain courtroom experience. Frye and Bowie were found guilty and sentenced to four years in prison. Frye’s attorney, James O’Shea, filed a motion for a new trial. Wood, acting as Bowie’s attorney, filed an appeal.19 In December 1921, McCoy granted the motion for a new robbery trial for both Frye and Bowie, agreeing that the jury had not been sufficiently instructed regarding the presumption of innocence. The new trial, also in McCoy’s court, produced the same verdict, and the same sentence.20
Frye, center, being tested by Marston, wearing glasses (illustration credit 8.2)
Frye told Lester Wood that his confession to the murder had been a lie. On March 11, 1922, Frye pled not guilty to the charge of murder.21 He also switched lawyers, placing himself in the hands of Wood and another of Marston’s students, Richard V. Mattingly. Mattingly, twenty-two, had graduated from Georgetown Law School but had been unable to find legal work. He was taking classes at night, toward a graduate degree in diplomacy and jurisprudence; during the day, he worked as a salesman.22 Court documents from the Frye case refer to the firm of “Mattingly & Wood,” with offices at 918 F Street; it seems to have been formed simply for the sake of this one case. Mattingly and Wood’s handling of Frye’s case was likely at Marston’s instigation: he seems to have decided that James Frye could be, to him, what Harry Orchard had been to Hugo Münsterberg—a chance to change the history of jurisprudence. Neither he nor Wood and Mattingly ever disclosed to the court that Wood and Mattingly were enrolled in Marston’s Legal Psychology class.23
On June 3, Marston sent Wigmore the statements he had taken from his eighteen students, as part of his study in testimony.24 One week later, Mattingly and Wood brought Marston to the D.C. Jail, to meet Frye. Marston asked Frye if he would submit to the use of the lie detector; Frye agreed.25 Frye himself later described what happened next: “He asked me several questions, none pertaining to the case, then suddenly he launched upon several questions going into every detail of the case.”26 The story was reported in the Washington Daily News; Marston sent Wigmore a clipping. Only when Frye saw that same story in the paper did he learn that Marston believed him innocent.27 No one had ever bothered to tell him.
Frye and Marston in the Washington Daily News, July 20, 1922 (illustration credit 8.3)
Frye’s murder trial was scheduled to begin on July 17, in McCoy’s court.28 The prosecutor, assistant district attorney Joseph H. Bilbrey, brought to the stand the physicians who had examined the body, the police detectives who had witnessed Frye’s confession, and two witnesses who testified that they had seen Frye at Brown’s house on the night of the murder.29 Mattingly and Wood opened their defense by calling a police detective who suggested that Frye had been bullied into confessing.30 A crucial defense would have been an alibi. But Mattingly and Wood made only a halfhearted attempt to establish Frye’s whereabouts on the night of the murder. Frye said he had been at the home of a woman named Essie Watson, in the company of a woman named Marion Cox. Essie Watson was too ill to appear in court; Mattingly and Wood requested a continuance; McCoy denied their request.31 Cox never testified. (Frye later said that she refused.)32 Instead, Mattingly and Wood tried to establish that Frye’s confession was a lie and that, in disavowing it, Frye was telling the truth.33 This line of defense required introducing the expert testimony of Professor William Moulton Marston. To that end, Mattingly and Wood submitted Marston’s publications, including his Harvard dissertation, to the judge.34
Wonder Woman attempting to testify in court, Wonder Woman, newspaper strip, March 1945 (illustration credit 8.4)
In court the next day, the courtroom was full to overflowing, in an-ticipation of Marston’s testimony.35 Mattingly approached the bench.
MR. MATTINGLY: If your honor please, at this time I intend to offer in evidence the testimony of Dr. William M. Marston as an expert in deception.
THE COURT: His testimony on what?
MR. MATTINGLY: Testimony as to the truth or falsity of certain statements of the defendant which were made at a particular time.
McCoy was skeptical; Marston, waiting with his blood pressure apparatus, restless. The prosecutor began to speak.
MR. BILBREY: If your honor please—
THE COURT: You do not need to argue it. If you object to it, I will sustain the objection.
MR. BILBREY: I do not want to object, but I think that properly to make the offer the witness ought to be put on the stand and sworn and asked questions.
The prosecution didn’t object to Marston’s evidence; the judge did. The real experts at deciding whether or not a witness was telling the truth, McCoy told Mattingly, was a jury: “That is what the jury is for.”
Mattingly suggested that an expert in deception was just like any other kind of expert witness. McCoy would have none of it: “We do not bring experimental matters into the court,” he said. Mattingly made one request after another, trying to find a way to persuade McCoy to qualify Marston as a witness; McCoy denied each request. Mattingly asked whether a witness for the prosecution, a police officer named Jackson, might be subjected to a lie detector test. Again, McCoy denied his request.
“Mind you, I do not know anything about the test at all,” McCoy said. “I had certain pamphlets submitted to me yesterday to look at, of some Dr. Marston—I believe his thesis when he got his Ph.D. degree. I am going to read them when I come back from my vacation. I see enough in them to know that so far the science has not sufficiently developed detection of deception by blood pressure to make it a useable instrument in a court of law.”
Mattingly pressed him: “Your honor, of course, in looking over those papers, did not assume that Dr. Marston was the only authority on the subject?”
“Oh, no, indeed,” said McCoy. “I take him as an authority.” As to the lie detector test: “When it is developed to the perfection of the telephone and the telegraph and wireless and a few other things we will consider it. I shall be dead by that time, probably, and it will bother some other judge, not me.”36
And with that, Marston’s attempt to have lie detection introduced into the courts came to an end.37 Nothing was left but the closing arguments. The jury, after deliberating for less than an hour, found Frye guilty of the lesser charge of second-degree murder. Mattingly announced that he would appeal, on the grounds that Marston’s testimony ought not to have been excluded.38 On July 28, McCoy sentenced Frye to life.39
Two days later, Marston wrote to Wigmore: “I’m enclosing some clippings in re our first attempt at the introduction of Deception Tests into court procedure, which may interest you. Of course, we did not expect any lower Court would take the responsibility of admitting the tests, but believed the time was ripe to carry the point up for a Supreme Court precedent.”40
Marston decided to offer a new course, in the summer session. A notice appeared in the Washington Post: “Prof. William M. Marston, Ph.D., L.L.B., will give a course in the philosophy of law at the summer school of American University, starting this week.”41 Both Mattingly and Wood enrolled. Marston gave them both C’s.42 The dean granted Marston tenure and named him chairman of the Psychology Department, and American University opened, on his behalf, “the only psycho-legal research laboratory in the United States.”43 And James Alphonso Frye, twenty-two, went by train to Leavenworth, Kansas.
FRYE’D
IN THE EXPERIMENTAL LIFE of William Moulton Marston, James A. Frye was experiment number six. Marston had staked his academic reputation on the Frye case. He expected the appeal to reach the U.S. Supreme Court and make him famous the world over.
The brief for the appellant, very likely written by Marston himself, consisted almost entirely of an argument on behalf of Marston’s work: “The question whether a witness is testifying or has testified truthfully or falsely is a scientific question which requires the aid of the study and experience of the scient
ific man to accurately determine.”1 The prosecution, in its brief, argued that the matter came down to Marston’s credibility, which, in the prosecution’s view, didn’t amount to much. Bilbrey and U.S. Attorney Peyton Gordon cited a 1922 law review article written by Harvard Law School professor Zechariah Chafee in which Chafee (not mentioning that Marston had been a student of his) asserted that Marston’s work was entirely inconclusive and that deception tests “cannot, of course, be substituted in courts generally for present methods of examination until their usefulness is thoroughly demonstrated.”2 As for Marston, the prosecution told the court, “Whether he can or can not detect deception is something that does not appear to be known to anyone except Dr. Marston.”3
On December 3, 1923, the D.C. Circuit Court of Appeals denied the appeal. “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define,” the opinion read. “Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.”4