by Jill Lepore
Frye v. United States is a landmark in the law of evidence and one of the most cited cases in the history of American law. It established what’s known as the Frye test, under which, to be admitted as evidence, a new kind of scientific principle has to have gained general acceptance. “Frye,” like “Miranda,” has the rare distinction of having become a verb. To be “Frye’d” is to have your expert’s testimony deemed inadmissible.5
Frye v. United States is also one of the bigger mysteries in American legal history. The appeals court’s opinion, only 641 words long, contains not a single reference to case law or precedent, nor any references to any scientific literature.6 But the ruling seems cryptic only because the details of the case itself have been long since forgotten. That’s how case law works. People who cite Frye don’t know or care who Frye was or whom he is supposed to have killed, and they haven’t bothered to find out much about Marston, either. Case law obliterates context, and experimental science repudiates tradition; their rise marked a shift away from the idea that truth can be found in the study of the past. But there’s a reason the court’s ruling was brief, and it has to do with a set of facts that can be found only in the archives, in the junk drawer of history.
Among the many facts about the Frye case that have never been discovered by anyone who has ever cited or studied it are three that concern the man who would one day create Wonder Woman: first, Frye’s lawyers were Marston’s students; second, at the time Frye’s lawyers were working on Frye’s defense, they were also involved in an experiment in the reliability of testimony, undertaken in consultation with the twentieth century’s most important scholar of the law of evidence, John Henry Wigmore; and third, on March 6, 1923, five days after Mattingly and Wood filed their appeal, their professor was arrested for fraud.7
Marston’s legal troubles began with a suit filed in January 1922 by Edward G. Fischer, his former partner at Marston, Forte & Fischer. Alleging a breach of contract, Fischer sued Marston for $5,000. The case dragged on through spring.8 The Tait-Marston Engineering Company was failing, too, not least because Marston had abandoned the company when he’d moved to Washington. But it was the bankruptcy of the third business he had launched in 1920, a fabrics company called United Dress Goods, that got him arrested.
Marston was indicted by a federal grand jury in Massachusetts on December 1, 1922. A warrant was issued for his arrest. On Febru-ary 19, 1923, a U.S. marshal reported that he had been unable to find Marston in Boston.9 A secret indictment was then forwarded to Washington, where Marston was arrested by federal agents on March 6. His arrest was reported in both the Boston Globe—“Arrest Inventor of Lie Detector”—and the Washington Post. “Marston, Lie Meter Inventor, Arrested,” read the headline in D.C., in a story that made a point of remarking on Marston’s role in the Frye case.10 The irony—expert at deception arrested for lying—wasn’t lost on anyone.
Marston was charged with two crimes: using the mails in a scheme to defraud, and aiding and abetting in the concealment of assets from the trustee in the United Dress Goods bankruptcy. The grand jury charged that Marston had placed orders with businesses in New York for large quantities of fabric and, in that correspondence, had made “false and fraudulent pretences” regarding the firm’s financial condition.11 United Dress Goods filed for bankruptcy in January 1922; Marston was charged with having knowingly and fraudulently concealed $2,400 from the firm’s trustee (an amount roughly equal to his annual salary as a professor).12
After his arrest, Marston was brought to Boston. He was held on $2,600 bail, which he paid. He was arraigned on March 16, 1923.13 He pled not guilty, insisting that he had no knowledge of the transactions of which he was accused.14 On March 17, an account of his arraignment appeared in newspapers in Boston, Washington, and New York (“ ‘Lie Detector’ Inventor Arraigned”). According to one reporter, Marston claimed that “the publicity was ruining him.”15 To defend himself against the charges, Marston retained a friend from law school, Richard Hale, founder of the Boston firm of Hale and Dorr, whose offices were in the same building where Marston, Forte & Fischer had been, at 60 State Street.16
At the time of his arrest, in March 1923, Marston was teaching a slate of courses—including Psycho-Physiology, Advanced Theoretical Psychology, and an applied course called Psycho-Legal Laboratory.17 It’s not clear whether he finished the term, but, in any case, he was fired.
His arrest and arraignment were reported in Washington newspapers the month Mattingly and Wood filed their appeal. The publicity could hardly have helped their cause. In the summer and fall of 1923, Mattingly and Wood applied for extra time while they prepared an additional brief, “Memorandum of Scientific History and Authority of Systolic Blood Pressure Test for Deception.” (Marston wrote to Wigmore, asking for help in preparing the Frye appeal, but Wigmore proved unreachable.)18 The chief purpose of this second brief, the science brief, was to diminish Marston’s role in establishing the detection of deception, placing him as only one among a larger number of scientists working in the field.19 It reads as Frye’s attorneys’ attempt to separate the credibility of deception tests from the credibility of their expert witness. It didn’t work. The D.C. Circuit Court of Appeals issued its ruling in Frye v. United States on December 3, 1923: “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.” The opinion was brief and cryptic because so little else needed to be said: the appellant’s chief witness—the expert upon whose testimony the case turned—was under a federal grand jury indictment for fraud.
On December 31, 1923, Marston sent Wigmore “Studies in Testimony,” his report on the testimony experiment he had conducted in his Legal Psychology class, not mentioning his own legal troubles. Wigmore applauded the article as “marked by great scientific care and caution” and recommended its publication. About the Frye verdict, Marston affected detachment. “I think it was confirmed in the District Court of Appeals, tho I have not seen the decision,” he wrote, vaguely, to Wigmore. “Counsel, of course, expected that result, but wanted to get it before the U.S. Supreme Court in proper form.”20
Wonder Woman, newspaper strip, March 1945 (illustration credit 9.1)
Richard Hale was successful in defending Marston against the charges of a federal grand jury. “I persuaded the United States authorities here that they had no case whatever against Marston,” Hale wrote to the president of American University after Marston was fired. As to the charges, “I investigated those things fully and was convinced they had no taint of criminality in them.”21
Even though the case never went to trial, the scandal cost Marston the chairmanship of the Psychology Department at American University, the directorship of the only psycho-legal research laboratory in the United States, and his professorship. The charges against him were dropped on January 4, 1924.22 “Studies in Testimony” appeared in the Journal of Criminal Law and Criminology in May.23
In June, Mattingly and Wood were admitted to the Supreme Court bar. It doesn’t seem as though they pursued the appeal to the Supreme Court; or, if they did, the Court refused to hear the case.24 After Frye, Marston gave up on the study of law, which is what made it possible for him, one day, to create Wonder Woman.25 For Marston, the end of one experiment always marked the beginning of another.
(illustration credit 9.2)
It wasn’t until 1945, in a Wonder Woman comic strip, that Marston finally extracted his vengeance on Judge Walter McCoy of the D.C. Circuit Court of Appeals. A bumbling, balding Judge Friendly calls Wonder Woman to the witness stand, in a case in which Priscilla Rich is being tried for crimes committed by a villain known as the Cheetah (who is the other half of Priscilla’s split personality). Instead of dismissing Wonder Woman’s testimony—and her lie detector—as inadmissible, Judge Friendly welcomes her.
“I und
erstand you—er—examined this defendant with your—ah—remarkable Amazonian lasso,” the judge says to her.
“Yes, I asked Priscilla if she was the Cheetah.”
“Ahem! While it’s highly irregular—hm—I’d like to hear your—ah—findings!”
“I will show you, judge,” offers Wonder Woman, who then lassoes Priscilla and drags her to the witness stand.
“I object!” cries the prosecuting attorney.
“Objection sus—” the judge begins, only to be cut off by Wonder Woman, who, ignoring the objection, interrogates her witness. Priscilla, within the lasso, is compelled to speak nothing but the truth. At the trial’s end, the judge shakes Wonder Woman’s hand.
“Your advice was—humpf—invaluable, Wonder Woman! I—ah—wish you’d give me—er—further help—”
“Call on me anytime!” Wonder Woman says. And she smiles her sly smile.26
PART TWO
FAMILY CIRCLE
From “Grown-Down Land,” Sensation Comics #31 (July 1944) (illustration credit p2.1)
HERLAND
OLIVE BYRNE, who was thrown away, was born in February 1904 in the back of a four-room house in Corning, New York, a city of glass. She was delivered by her mother’s older sister, a twenty-four-year-old nurse named Margaret Sanger.1
The baby squirmed and screamed. Her mother, Ethel, could not get her to stop crying. Her father, Jack, was at Jimmy Webb’s saloon, down the street. He came home drunk and hollering, stomping the snow off his boots. He opened the back door and threw the baby into a snowbank. Sanger ran outside, pulled Olive from the snow, and brought her inside. Jack Byrne went back to Jimmy Webb’s. He stayed there for two days.2
Ethel Byrne and Margaret Sanger were the youngest daughters of Michael Hennessey Higgins, who was born in Ireland and who, in Corning, carved tombstones, although he spent most of his time drinking, and making speeches, and fuming. He had a temper as hot as the fires at the Corning Glass Works. He and his wife, Anne, had eleven children. Margaret, when she was only eight years old, delivered the youngest of them. Anne Higgins died at the age of forty-nine of tuberculosis, but Margaret and Ethel knew that she had died, really, of motherhood: she had been pregnant eighteen times in twenty-two years.
Margaret (left) and Ethel Higgins in the 1880s (illustration credit 10.1)
The Higgins sons went to work in the glassworks. Mary, the oldest daughter, went to work as a servant for a family named Abbott, taking care of a little girl named Olive, which is how Mary Olive Abbott Byrne got saddled with a very long name. (She hated it. “I would have liked to have been a Dorothy,” she said.)3 Anna, the next oldest Higgins daughter, went to work in New York City, so she could earn money to send Margaret to boarding school, because Margaret was clever and wanted to be a doctor. Ethel, who had brown eyes and auburn hair and all the fury of her father, was even cleverer than Margaret. (“She was the intellectual,” one of Margaret Sanger’s granddaughters liked to say, later.)4 But there wasn’t enough money for Ethel to follow Margaret to boarding school, so she went to the Corning Free Academy, where she met Jack Byrne, and got pregnant. In 1901, when he was nineteen and she was eighteen, they eloped.5
Margaret Higgins never became a doctor. Instead, she went to nursing school and married an architect named William Sanger. She delivered Ethel’s first baby, Jack, in 1902. (Ethel delivered Margaret’s children, and Margaret delivered Ethel’s.) By February 1904, when Olive Byrne was born, Margaret Sanger had a baby of her own, and she had tuberculosis.6
The only thing that seemed to quiet Olive when she was a baby was a patent medicine called Mrs. Winslow’s Soothing Syrup; it knocked her out. (It contained morphine.) Once, Ethel gave Olive so much syrup that she slept for two days straight; it took a doctor to wake her up. After a while, Ethel Byrne decided there was nothing to do but leave. When Olive’s brother was three and Olive was two, Ethel walked them down the street to her husband’s parents’ house, at 310 East Tioga Avenue, left them there, and disappeared.
“That was the last time anyone in Corning saw her for four years,” Olive said. Olive’s grandparents put her in a crib in an upstairs bedroom. She said, “I think I spent a lot of time in that crib.”
Ethel Byrne carried a suitcase to the train station and bought a one-way ticket to New York. She studied nursing at Mount Sinai Hospital. Married women were not allowed to train as nurses; she said she was single. She was lying.
Olive’s grandparents adopted Olive and her brother. Olive’s grandmother told Olive that her mother was dead.7 She was lying. Later, Ethel told Olive that she’d tried to get her and her brother back.8 She was lying. “Deceit comes easy to the Irish,” Olive Byrne liked to say.9
“Oh Lord I am not worthy that thou shoudst come to me,” Olive Byrne sang in church when she was five years old, and she meant it. She had straight, jet-black hair, blue eyes, pale skin, and freckles. She bit her fingernails until they bled. She played with paper dolls; she loved to make paper families, a tissue of fictions. When she was six, her mother came to visit—she had risen, it seemed to Olive, from the very grave—and hugged her so close that the brooch on her dress left a scratch on Olive’s cheek. All she could ever remember of her mother, after that, was the scratch.10
Olive Byrne in 1906 (illustration credit 10.2)
Olive Byrne’s father died in 1913; both of her grandparents died the next year. Olive and her brother, twelve and ten, were bundled off to two different Catholic orphanages: one for boys and one for girls.
By then, Ethel Byrne was living in Greenwich Village with Robert Allerton Parker, a drama critic, in a second-floor apartment in a brownstone at 246 West 14th Street. Margaret Sanger sometimes lived there, too. Sanger had three children, and her marriage was falling apart.11
Ethel Byrne and Margaret Sanger believed in free love, socialism, and feminism.12 They worked for the Socialist Party Women’s Committee, the IWW, and the Masses, a socialist monthly. They joined the Liberal Club, “A Meeting Place for Those Interested in New Ideas,” and went to meetings of Heterodoxy, a women-only club that held meetings on subjects like “What Feminism Means to Me.”13 (Both clubs were founded in 1912.) They knew Upton Sinclair, Emma Goldman, John Reed, and Crystal Eastman and her brother Max. They lived in a world of free love, of heterodoxy, and of Amazons, breaking chains.
Max Eastman edited the Masses; John Reed was a staff writer. Max Eastman was also secretary of the New York Men’s League for Woman Suffrage, and it was Reed who, as a senior at Harvard in 1910, the year before Marston enrolled as a freshman, had helped start the Harvard Men’s League for Woman Suffrage, sponsored by George Herbert Palmer. Crystal Eastman helped start the Congressional Union for Woman Suffrage in 1913 and the Woman’s Peace Party in 1914. She was also a member of the Heterodoxy Club. She wanted to know “how to arrange the world so that women can be human beings, with a chance to exercise their infinitely varied gifts in infinitely varied ways, instead of being destined by the accident of their sex to one field of activity—housework and child-raising.”14
Annie Lucasta Rogers, another member of the Heterodoxy Club, was a feminist cartoonist whose way of depicting the struggle for women’s rights greatly shaped Wonder Woman. Born in Maine in 1879, she’d come to New York to draw editorial cartoons. She got her first cartoon published after bringing it to the New York Call, a socialist daily. She’d gone to see a Hearst editor who told her that newspapers had “no use for women in this particular line of work and not much use for them in any other.” After that, she sent in her work by mail, signing it “Lou Rogers.”15
The feminist cartoonist Lou Rogers, c. 1910 (illustration credit 10.3)
Rogers’s cartoons appeared in everything from the Call to the New York Tribune and the Ladies’ Home Journal. She specialized in suffragist publications like the Woman Citizen and the Suffragist. The Woman’s Journal called her “the only woman artist to devote all her time to feminism.” “In attempting to interpret the woman’s movement,” she told Cartoons
Magazine in 1913, “I think that the cartoon should aim to arouse men and women to the realization that the ideals of the movement are part of human progress.” When the New York Evening Post published a special issue devoted to suffrage, Rogers provided the cartoons (the Post called her “the only woman cartoonist”). In 1914, when the New York Woman Suffrage Association offered a $50 prize for the best scenario about the suffrage movement, in a contest much like that which Marston won the next year, for Jack Kennard, Coward, Rogers served on the prize jury with Charlotte Perkins Gilman, another member of Heterodoxy. That same year, Rogers started “a suffrage cartoon service,” charging $5 for a four-column cartoon to a syndicate that included Harper’s Weekly and Judge, a humor magazine that Rogers had been drawing for since 1908. When Heterodoxy organized a mass debate with topics like “The Right to Work,” “The Right of the Mother to Her Profession,” “The Right to Her Convictions,” and “The Right to Her Name,” the title for the meeting came from a Rogers cartoon in which a woman using nothing but her fists smashes holes labeled “Education” and “Suffrage” in a brick wall: it was called “Breaking into the Human Race.”16
Lou Rogers, Tearing Off the Bonds, pen and ink drawing for Judge, October 19, 1912 (illustration credit 10.4)
Harry G. Peter, pen and ink drawing. From Marston’s “Why 100,000 Americans Read Comics,” American Scholar 13 (1943–44) (illustration credit 10.5)
Rogers was also a staff artist at the swank humor magazine Judge, where she illustrated a page called “The Modern Woman,” which ran from 1912 to 1917. Rogers’s cartoons often featured an allegorical woman, chained or roped, breaking her bonds. Another staff artist at Judge sometimes filled in for her. His name was Harry G. Peter, and he was the artist who, one day, would draw Wonder Woman.