by Jill Lepore
3. WMM, “Studies in Testimony,” 9.
4. WMM wrote Wigmore that the course was “based to a considerable extent upon your ‘Principles of Judicial Proof’ ” (WMM to JHW, March 30, 1922). Wigmore’s attack on Münsterberg notwithstanding, Wigmore was keenly interested in applying psychological research to the question of evidence: he hoped to found a science of evidence. The Principles of Judicial Proof is a compendium, consisting of case studies taken not only from the courts but also from the annals of literature. JHW, Principles of Judicial Proof, 168–70, 502–3. Above all, Wigmore drew from psychology. Explaining what constitutes proof of identity, for instance, he quoted William James’s Principles of Psychology; on perception, he relied on Josiah Royce’s Outlines of Psychology.
5. There is some evidence that Wigmore and Münsterberg had had some kind of rapproachement by the time of the latter’s death. In 1913, Wigmore asked Münsterberg for permission to use some portion of his work in The Principles of Judicial Proof. When Münsterberg granted that permission, Wigmore wrote back, “Thank you heartily for your kind consent to my use of the passage from your book. You need not fear that I should attempt to take advantage of the occasion to continue the sarcastic controversy of three years ago. I am anxious, in this book, to see your views expounded fully to law students, and hence the desire for a quotation from your book. I shall merely append a few serious remarks on the other side of the question.” JHW to Hugo Münsterberg, January 3, 1913, Wigmore Papers, box 92, folder 16.
6. JHW, Principles of Judicial Proof, 583–91.
7. WMM thought the scenes played in earlier experiments, using shams and “blood (or paint) smeared actors, shouting and gesticulating,” skewed the results. He therefore devised, instead, a scene of utmost ordinariness, an incident “of such a character that no one of the 18 witnesses suspected anything unusual had occurred until so informed by the experimenter.” WMM, “Studies in Testimony,” 7–8. Wigmore had suggested a modification to the standard experimental design: “include a jury (or judge of facts) in the experiment, and observe whether the findings of fact follow the testimonial errors or whether they succeed in avoiding them and in reaching the actual facts.” Wigmore’s Northwestern University Law School experiments are reported in his Principles of Judicial Proof, 585–91.
8. WMM to JWH, March 30, 1922.
9. Mississippi would be the last state to drop its ban on female jury service; that change didn’t come until 1968. Holly J. McCammon, The U.S. Women’s Jury Movements and Strategic Adaptations (Cambridge: Cambridge University Press, 2012); my count is derived from table 3.1, on p. 38. For the length of time from the beginning of women’s activism on this issue to success, see table 3.2, on p. 51.
10. EHM, “Tiddly Bits.”
11. WMM to JHW, March 30, 1922, and JHW to WMM, May 11, 1922. WMM, “Studies in Testimony,” 16–17.
12. WMM, March On!, 235.
13. “President of the National Benefit Life Insurance Company Cowardly Murdered,” Philadelphia Tribune, December 4, 1920; “Offer $1,000 Reward for Doctor’s Slayer,” Chicago Defender, December 18, 1920.
14. A useful account of the arrest and questioning and a faithful summary of the confession is “Mystery Finally Solved as How Prominent Physician Was Murdered Last Year,” Washington Tribune, August 27, 1921.
15. James A. Frye, Statement Made to Inspector Clifford I. Grant, August 22, 1921. A copy is filed with Curtis v. Francis, National Archives, RG 21, Equity 40432, box 3060, 16W3/06/27/03.
16. Local coverage: “Negro Held in Charge of Slaying Physician,” Washington Bee, August 27, 1921. National coverage: “Dr. Brown’s Slayer in Law’s Grip,” Chicago Defender, September 3, 1921.
17. United States v. Bowie, Frye et al., National Archives, RG 21, Criminal #38380, box 316, 16W3/08/21/06. Bowie was also tried separately for housebreaking and larceny and found guilty. United States v. William N. Bowie, 1921, National Archives, RG 21, Criminal #38310, box 316, 16W3/08/21/06.
18. Lester Wood, Student Record, October 8, 1921, Registrar’s Office, American University.
19. “William N. Bowie and James Frye Convicted,” Washington Tribune, November 12, 1921. Wood also filed a motion for a separate trial for Bowie, who, with Benjamin Grice, was also charged with larceny and housebreaking. United States v. William N. Bowie, 1921, Motion for a New Trial, filed by Lester Wood, attorney for the defendant, January 6, 1922, National Archives, RG 21, Criminal #38310, box 316, 16W3/08/21/06. United States v. William N. Bowie, 1921, Motion filed by Lester Wood, attorney for the defendant, December 21, 1921, National Archives, RG 21, Criminal #38310, box 316, 16W3/08/21/06. This was before the introduction of court-appointed attorneys for destitute defendants. Wood’s serving as counsel in a case like this was volunteer work, and a common way to acquire legal training.
20. “New Trial Is Granted Bowie,” Washington Tribune, December 10, 1921, and “Bowie and Frye Get Four Years in Penitentiary,” Washington Tribune, December 31, 1921.
21. United States v. Frye, Docket Entries, National Archives, RG 21, Criminal #38325, box 316, 16W3/08/21/06. O’Shea is listed as his attorney during the indictment in the full appeal trial record, Frye v. United States, National Archives, RG 276. Frye pled not guilty to murder just before Marston conducted his experiment in testimony at American University. In 1922, the spring term at American University began on March 20. Legal Psychology met twice a week. That messenger with a Texas twang must have knocked on the door of the lecture room during one of the very first class meetings, because on March 30 Marston wrote to Wigmore to tell him that he had “just concluded a very interesting experiment on testimonial evidence.” WMM to JHW, March 30, 1922.
22. Richard V. Mattingly, Student Record, October 4, 1921, Registrar’s Office, American University.
23. Only four scholars have ever investigated the Frye case. All four are historians of science. In 1982, J. E. Starrs, the first person to bother to dig up the trial records—by that time most of the police reports had been destroyed—speculated that Frye was probably guilty, despite his protestations to the contrary. J. E. Starrs, “A Still-Life Watercolor: Frye v. United States,” Journal of Forensic Sciences 27 (July 1982): 684–94. In 2004, Tal Golan situated the ruling within the history of expert testimony to argue that psychology is where Progressive Era law drew a line between what, of science, can enter the courtroom and what cannot. In 2007, Ken Alder placed the story within his fascinating history of lie detection: Ken Alder, The Lie Detectors: The History of an American Obsession (New York: Free Press, 2007), chapter 4, “Monsterwork and Son.” That same year, in a Harvard dissertation, Seán Tath O’Donnell argued that the case could be understood only in the context of race relations in Washington, DC. O’Donnell, “Courting Science, Binding Truth: A Social History of Frye v. United States,” PhD diss., Harvard University, 2007. None of these scholars was especially interested in Marston, and none discovered that Frye’s attorneys were Marston’s students. Both Starrs and O’Donnell refer to Mattingly as “court-appointed”; O’Donnell adds that he was “appointed to the case at the last minute” (p. 196). Starrs and O’Donnell, unaware that Mattingly and Wood were Marston’s students, assumed, instead, that the lawyers sought the expert out. “Mattingly found Marston employed as a lecturer at American University,” writes O’Donnell (p. 12). And see also O’Donnell’s discussion on p. 140, where he asserts that Mattingly, desperately hoping to corroborate Frye’s recantation of his confession, discovered a professor at American University who might help him out.
24. WMM to JHW, June 3, 1922, Wigmore Papers.
25. Frye at some point also submitted to an intelligence test, administered by Major Harold C. Bingham of the National Research Council, who determined that his intelligence “was superior to that of the average draft negro.” Memorandum of Scientific History and Authority of Systolic Blood Pressure Test for Deception, Frye v. United States, Briefs, #3968, National Archives RG 276, box 380, 14E2A/02/05/04, p. 4.
26. For Fr
ye’s recollection of Marston’s visit to the jail on June 10, 1922, see Frye’s 1945 application for executive clemency, National Archives, RG 204, stack 230, 40:14:2, box 1583, file 56-386, 12–13.
27. WMM to JHW, July 4, 1922, Wigmore Papers. WMM sent Wigmore more clippings on July 30, 1922, including a Washington Daily News clipping dated July 20, 1922.
28. McCoy was born in Troy, New York, on December 8, 1859. He graduated from Harvard in 1882. “In 1904 and 1908 he sat as New Jersey delegate in the National Democratic Conventions, also in many State conventions, before being elected, in 1911, to the 62d Congress, from the Eighth New Jersey District. Service to the first Wilson Administration brought him into notice, and he was appointed, as Associate Justice, to the Supreme Court of the District of Columbia on October 5, 1914. When Chief Justice Covington resigned, on May 30, 1918, Associate Justice McCoy was promoted,” notes John Clagett Proctor in Washington: Past and Present (New York: Lewis Historical, 1930), 1:234.
29. The criminal trial record, at least the part that survives, is United States v. Frye, National Archives, RG 21, Criminal #38325, box 316, 16W3/08/21/06. So far as I can discover, the transcript of the criminal trial is gone, except for those parts excerpted for the appeal. For the rest of the trial, I have relied on newspaper accounts.
30. Frye himself insisted, on the witness stand, that “not a word of the confession . . . was true.” “Frye Convicted of Dr. Brown’s Murder,” Washington Tribune, July 22, 1922. He said that “on the Wednesday following the murder of Dr. Brown, he and Dr. John R. Francis Jr. got into an automobile and went to Southwest Washington, where Francis purchased cocaine and gin” and that Francis, while high on cocaine, “confessed to him that he (Francis) had killed Dr. Brown, giving the details as to how the climax of murder came after a failure to extort money from the slain man through a blackmail threat.” From “Convict Slayer of Dr. Brown,” Chicago Defender, July 29, 1922.
31. Richard V. Mattingly and Lester Wood, Request for Continuance, July 14, 1922, United States v. Frye, National Archives, RG 21, Criminal #38325, box 316, 16W3/08/21/06.
32. For Frye’s recollection of Watson’s illness and death, see Frye’s 1945 application for executive clemency, National Archives, RG 204, stack 230, 40:14:2, box 1583, file 56-386, pp. 2–3. On Cox, see pp. 12–13, where Frye writes, “My lawyers Messrs. R.V. Mattingly and Lester Wood attempted several times to have this woman to give them a statement, such efforts met with no results. She was summoned to court as a witness, the Prosecuting Attorney stated that she was a defense witness and my attorneys said, she was a State’s witness. I have never been able to learn the cause for her actions.”
33. Their story went like this: Frye, having been arrested on the robbery charge, had been tricked into confessing to murder. He had been assured by both a police detective and by John R. Francis that if he said he had killed Brown, the robbery charge would be dropped; the murder charge wouldn’t stick (because Frye had an alibi); and Frye would receive a portion of the $1,000 reward. The real murderer, Frye said, was Francis. In July 1922, immediately following Frye’s conviction, Francis began pursuing the reward, filing suit with William H. Robinson. against the National Benefit Life Insurance Company and N. Pearl Curtis and Robbie Lofton, Brown’s daughters, for the recovery of the reward, which was also claimed by Julian Jackson. See Curtis v. Francis, National Archives, RG 21, Equity 40432, and Curtis, Lofton et al. v. Francis et al., box 3060, 16W3/06/27/03. In the fall of 1922, Robinson was convicted of dealing in narcotics. See United States v. Robinson, National Archives, RG 21, Criminal #39682, box 329, 16W3/08/22/02.
34. “Dr. Marston made a test of Frye’s blood pressure yesterday. Frye stoutly maintains that he is innocent of the crime. While not disclosing the result of the test, Dr. Marston will make a supplementary test if Chief Justice and the jury so request.” From “Lie-Detector Verdict Today,” Washington Post, July 20, 1922. Meanwhile, WMM and several of his students and colleagues held a meeting at American University, where they founded the American Psycho-Legal Society; Marston and Wigmore were to be honorary co-presidents. WMM to JHW, July 30, 1922, and JHW to George Curtis Peck, November 16, 1922, Wigmore Papers.
35. That WMM took the stand, and that the courtroom was standing room only, is reported in “Holds Frye Guilty of Killing Doctor,” Washington Post, July 21, 1922.
36. Frye v. United States, Transcript of Record, taken from the Bill of Exceptions submitted to the court by Mattingly and Wood on September 26, 1922, recording court proceedings during the criminal trial, held July 17–20, 1922, pp. 11–18, National Archives, RG 276, Briefs #3968, box 380, 14E2A/02/05/04.
37. Even McCoy, who was not a scientist, could see the flaws in Marston’s methods in the study he’d conducted on convicted criminals in Massachusetts in 1917. In this study, published in Wigmore’s Journal of Criminal Law and Criminology, WMM reported having conducted deception tests on twenty criminal defendants who had been recommended by the courts for medical and psychological evaluation; in every case, he noted, the judgment made by his blood pressure test, as to the defendants’ guilt or innocence, was corroborated by subsequent events. As McCoy saw at a glance, the investigation was wildly unscientific: the cases were handpicked; there was no control group; and the blood pressure test itself might have affected the subsequent events. McCoy, therefore, lectured Mattingly about the scientific method:
I happened to read one test that was made, and I believe it was stated—I could not make out whether it was when a man was on probation after conviction or on the witness stand before conviction. I could not tell that. He was on probation, and it was claimed that this test had been established either that the man—it must be that the man had lied about his case. The judge did something or other—I don’t know what it was—but subsequent to the time the test was made it was found that the man had been guilty of some similar crime. Now, did the judge act upon the test, or did he act upon his additional information as to the perpetration of some other similar crime. As far as that test is concerned, Dr. Marston will admit that it was not scientific as far as his instrument was concerned, because, as he understands, as a scientist, he has to exclude everything except the constants before he can make a deduction. If there are a lot of variables, all he can say is that on the whole this is probably so.
38. “Rely on ‘Lie Test’ in Appeal,” Washington Post, July 22, 1922.
39. In closing arguments, Bilbrey said Frye was “the most colossal liar that ever appeared in court”; Mattingly said the prosecution’s chief witness, John R. Francis, was “nothing but a slick crook.” From “Convict Slayer of Dr. Brown,” Chicago Defender, July 29, 1922. On the length of the jury’s deliberations, see “Holds Frye Guilty of Killing Doctor,” Washington Post, July 21, 1922. On the sentencing: “Life-Sentence Penalty in Murder of Doctor,” Washington Post, July 29, 1922.
40. WMM to JHW, July 30, 1922, Wigmore Papers.
41. “Offers New Law Course,” Washington Post, July 30, 1922. Studying the philosophy of law, however, apparently included conducting lie detector tests on convicts:
A last effort to win vindication for a crime which he is accused of committing twelve years ago led Dr. E. E. Dudding to undergo the nerve-racking test of the sphygmomanometer, better known now as the ‘lie detector,’ last night, in the offices of the American university. The test was administered by Dr. William Marston, professor of legal psychology at the school, and Paul E. Haddick, secretary of the American Psycho-Legal society. Dudding was tried and convicted in February, 1910, of killing his uncle in Huntington, W. Va., following a quarrel growing out of a family feud, being found guilty by a jury of voluntary manslaughter, despite his continued declarations that the killing was done in self-defense. Sentenced to five years in the West Virginia penitentiary for that offense, he went off to prison steadfastly declaring that some day he would win vindication that would make truth prevail. His appearance before Dr. Marston and a corps of university students of psychology twelve years af
ter the alleged crime was committed is the culmination of this fight for vindication. Following the tests, Dr. Marston said that he was convinced that the man was justified in committing the deed—he has never denied that he did the shooting—and that he had just cause for carrying the gun the day of the killing, which was September 6, 1909.
This story describes the test in some detail, provides the questions, too, and concludes: “The test last night, and the subsequent tests which will follow, are almost the direct result of an opinion rendered by Judge McCoy in Criminal court No. 2 about ten days ago in which he refused to allow the sphygmomanometer to be admitted.” From “Lie Detector Said to Clear Dudding in Killing of Uncle 12 Years Ago,” Washington Post, August 2, 1922.
42. Richard V. Mattingly, Transcript, Registrar’s Office, American University. Lester Wood, Transcript, Registrar’s Office, American University.
43. “Professor Marston is primarily an experimental psychologist, and arrangements have been made to open, at the American University this fall, what will probably be the only psycho-legal research laboratory in the United States.” From “William Moulton Marston,” American University Courier, October 1922.
9. FRYE’D
1. Frye v. United States, Brief for the Appellant, Briefs, #3968, National Archives RG 276, box 380, 14E2A/02/05/04. Mattingly and Wood listed eight assignments of errors in the criminal trial as grounds for appeal. Errors 4–8 involved Marston. Frye v. United States, Transcript of Record, Assignment of Errors (filed February 8, 1923), pp. 3–4, in National Archives, RG 276, Briefs #3968, box 380, 14E2A/02/05/04.
2. Frye v. United States, Brief for Appellee, prepared by Peyton Gordon, U.S. Attorney, and J. H. Bilbrey, Assistant U.S. Attorney, filed November 2, 1923, in National Archives, RG 276, Briefs #3968, box 380, 14E2A/02/05/04, pp. 1–2, 8. Zechariah Chafee, “The Progress of the Law, 1919–1921: Evidence,” Harvard Law Review 35 (1922): 302–17; the quotations are from p. 309. In Marston’s second year of law school, he was a student in Chafee’s course on bills of exchange and promissory notes. Chafee began teaching at Harvard Law in 1916. In 1916–17, he taught Bills of Exchange and Promissory Notes, a.k.a., “Bills & Notes.” Harvard Law School, Law School of Harvard University, Announcements 1916–1917 (Cambridge, MA, 1916), 6. In Bills & Notes, Marston earned a 72. WMM, transcript, Harvard Law School, class of 1918, Harvard Law School Registrar: Student Permanent Record Cards, 1893–1972, Harvard University Archives, call number 14258. As McCormick later pointed out (“Deception-Tests and the Law of Evidence,” p. 500 n51), it was likely Chafee’s printed remarks that doomed Frye’s appeal.