On evidence: proving Frye as a matter of law, science, and history.

• Author: Lepore, Jill
• Position: VI. A Psycho-Legal Research Laboratory through Epilogue: Mr. Hyde, with footnotes and appendices, p. 1122-1158

6. A PSYCHO-LEGAL RESEARCH LABORATORY

   In the experimental life of William Moulton Marston, James A. Frye was experiment number six. In preparing Frye's defense, in the spring of 1922, Mattingly and Wood appear to have relied on what they'd learned in their night course on Legal Psychology. And then, on June 10, they brought their professor to the D.C. jail to meet the defendant. (208) Marston asked Frye if he would submit to the use of the lie detector; Frye agreed. (209) (Frye at some point also submitted to an intelligence test, administered by a psychologist from the National Research Council, who determined that Frye's intelligence "was superior to that of the average draft negro.") (210) Frye himself later described Marston's method: "He asked me several questions, none pertaining to the case, then suddenly he launched upon several questions going into every detail of the case. Several days later, I read in the Washington News where he had said I had told the truth." (211) The case was tried by Chief Justice Walter McCoy, the same justice who'd tried Frye for robbery and sentenced him to four years in prison. McCoy, sixty-three, had studied at Harvard Law School in the 1880s, where he was one year ahead of John Henry Wigmore; like Wigmore, McCoy had studied Evidence with Thayer. (212)

   A crucial defense for Frye, seemingly, would have been an alibi. Mattingly and Wood, however, appear to have made at best a half-hearted attempt to establish Frye's whereabouts on the night of the murder. (213) Frye maintained that he had been at the home of a woman named Essie Watson in the company of a woman he was dating, named Marion Cox. (214) On July 14, Mattingly and Wood requested a continuance, on the ground that Essie Watson was too ill to appear in court. (215) McCoy denied this request. (216) Instead, Frye's attorneys read a statement from her taken on her deathbed. For reasons never explained, Cox never testified. (Frye later said that she refused.) (217) Mattingly and Wood based their defense on establishing that Frye's confession was a lie, and that, in disavowing it, Frye was telling the truth. (218) The story went like this: Frye, having been arrested on the robbery charge, had been tricked into confessing to murder. He had been assured both by 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. (219) The real murderer, Frye said, was Francis. (220)

   Defending Frye by arguing that his confession was a lie transformed Frye's case into a case very much like that of Harry Orchard, with Marston as Frye's Munsterberg. Marston must have hoped the case would establish his reputation; he also wanted Wigmore to witness it. All this while, he had continued to correspond with Wigmore. On June 3, Marston sent Wigmore the testimony he had taken from his eighteen students as part of his testimonial experiment.221 222 After Marston visited Frye in jail on June 10, strapped him up to a blood-pressure cuff, and asked him a series of questions, Marston sent Wigmore a clipping of the story in the Washington Daily News

   On July 4, 1922, Marston sent Wigmore this clipping from the Washington Daily News. Courtesy of the Northwestern University Archives.

   Frye's trial began on July 17. (223) The prosecutor, assistant district attorney Joseph H. Bilbrey, brought to the stand the physicians who had examined the body; Paul Jones, the police detective who had witnessed Frye's confession; and two further witnesses, Julian Jackson and John Robinson, friends of the murder victim, who testified that they had seen Frye at Brown's house on the night of the murder. (224)

   On behalf of the defense, Mattingly called Frye, who insisted that "not a word of the confession made ... was true." (225) According to a newspaper report:

   After drinking a glass of water handed him by the bailiff, Frye made a statement in which he claimed 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 from whence they returned to Dr. Francis' office in the Southern Aid building, corner of Seventh and T streets Northwest. There, Frye said, he got to "feeling good drinking the gin," while Dr. Francis, after "getting high," confessed to him that he (Francis) had lulled 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. (226) On July 19, the first day Frye testified, Marston went to court and tested his apparatus, apparently in the hallway (the test, which was photographed, was reported in the Washington Post). (227) Preparing to introduce Marston as a witness, Mattingly and Wood submitted Marston's publications, including his dissertation, to the judge. (228)

   That night, Marston and some of his students held a meeting at American University. (229) They decided to found an American Psycho-Legal Society. Marston and Wigmore were to be honorary co-presidents. (230) (The society's aim was to burnish Marston's credentials, promote and publicize his research, and raise $15,000 to equip his laboratory. It lasted no more than a few months.) (231)

   The next day, the courtroom was full to overflowing, in anticipation of Marston's testimony. (232) With Marston on the witness stand, but before he had a chance to speak, McCoy challenged Mattingly's evidence.

   Mr. MATTINGLY. If your honor please, at this time I had intended 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.

   The COURT. Made at what time?

   Mr. MATTINGLY. The tenth of June of this year.

   The COURT. We are not concerned with the truth or falsity of any statements on the 10th of June. He has been testifying on the 19th and 20th of July, and that is the only thing we are interested in.

   Mr. MATTINGLY. There has been a great amount of testimony offered, your honor, as to what was said by Frye at various times, both

   prior to and since his arrest. The testimony which is offered is not offered as evidence of what Frye did say; it is not offered for its effect upon the jury in that way, but it is offered as the opinion of an expert as to whether what he did say was the truth or not. I submit that that is competent.

   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 COURT. No; I do not think they need to go through that. They offer to show that somebody, as an expert in veracity, has made up his mind that Frye on the tenth day of June either told the truth or did not tell it. Of course I do not know what the witness would say; but, as I say, the witness was here on the stand, and it is for the jury to determine whether or not on the nineteenth and twentieth of July he was telling the truth.

   Mr. MATTINGLY. Very well, your honor. That is very true, your honor. But as expert testimony is not this proper as competent evidence to go before the jury to ascertain what the Doctor's opinion is at this time?

   The COURT. It is not a question of opinion; it is a question of fact.

   Mr. MATTINGLY. Subject to the opinion of an expert, though, your honor.

   The COURT. Oh, well we get to be more or less experts ourselves, and so do the jury, upon the question of whether anybody is telling the truth or not. That is what the jury is for.

   Mr. MATTINGLY. It depends, just as with a finger-print expert or an alienist, upon whether or not we have specialized in that particular field.

   The COURT. The only question is whether the witness on the stand told the truth.

   Mr. WOOD. I submit, your honor, that the opinion of the expert is still left up to the jury as a question of fact for their consideration in the case.

   Mr. MATTINGLY. Take the instance of an alienist, your honor, when he is put on the stand. He testifies as to an examination at some time prior to the trial. He is permitted to state what the nature of the examination was, what he asked the subject, what the subject[']s replies were, the reasons upon which he bases his conclusion, and the conclusion. I can not see the distinction which you draw between that instance and the present one.

   The COURT. Well, I will give you this distinction. Fifty years ago if anybody had said that the human voice spoken in Washington could be heard in Chicago he would have been thought crazy. Since that time we all know that such is the fact, and we do not bring experimental matters into court, but when it is established that scientific development has reached such a point as to become a matter of common knowledge as to its results we allow the results to be shown in court.

   Mr. MATTINGLY. It seems to me that your Honor is undertaking to say, without hearing what we have to say on the subject, whether or not this is a matter of common knowledge.

   The COURT. Well, if you want to take your analogy, when the expert goes on the stand he testifies whether or not at the time he is testifying the person under inquiry is of sound or unsound mind. What the jury is interested to determine in this case is not whether Frye told the truth last month but whether he told it here yesterday and to-day.

   Mr. MATTINGLY. We have proof to offer on this point, that it is a scientifically proven fact that certain results will be accomplished under certain conditions. It seems to me that the very least your honor can do is to permit us to attempt to qualify the expert. I think we are entitled to it as a...