Marston & Frye: Icons or Annoyances? reappraising the history of polygraph... - James R. Wygant

As originally published in Polygraph News & Views - Volume 17, Number 3

MARSTON & FRYE: ICONS OR ANNOYANCES?
reappraising the history of polygraph...

The Supreme Court decision in Frye v.United States(1) remains a measure of the overall credibility of polygraph, even though it has been replaced by more recent court decisions regarding admissibility. Critics of polygraph cite Frye as the first and strongest argument for dismissing polygraph as something so unscientific that it approximates fraud. Advocates for polygraph regard Frye as a landmark that identifies the beginning of a process of polygraph recognition and development; and they hold high regard for William Marston, the man who tested James A. Frye.

Critical analysis of what occurred in the Frye case suggests that the methods used were no more comparable to polygraph than is voice stress analysis; and yet Marston and the Frye case remain steeped in myth and misinformation.

Frye v. United States was a decision made by the U.S. Court of Appeals for the District of Columbia in 1923. It set a standard for admissibility of forensic testimony that remained in place for seventy years until Daubert v. Merrell Dow Pharmaceuticals(2) in 1993. Standards of admissibility were further modified by Kumho Tire Co. v. Carmichael(3) in 1999, which ultimately resulted in revision of Rule 702, the federal rule of evidence for forensic testimony.

Much of the confusion regarding Frye originated with the man who ran the test, William Marston, a chronic self-promoter whose notoriety from the Frye case allowed him to appear in an ad endorsing razor blades, and who also created the Wonder Woman comic strip.

Marston became interested in the use of blood pressure to detect lies while he was a student in psychology at Harvard. He already had a law degree at that time. He favored a technique of repeatedly checking blood pressure, inflating and deflating the cuff five times per minute while listening for pulse with a stethoscope.(4) The only provision for a recording was Marston’s notes, which he would then use to construct a graph. He published his findings in 1917. When newspapers issued reports of his findings they referred to the process as a “lie detector,” a designation which Marston made no apparent effort to contradict.

In an article that Marston wrote called “Can You Beat the Lie Detector”(5) he recalled the Frye case with slight regard for the facts. He quoted Frye’s own version of what happened as though it were fact.

Frye had been approached by a negro who was supposed to be a head of a drug ring. This man would have profited by Dr. Brown’s death. He had, as a matter of fact, officially turned Frye in as the murderer, and had claimed the reward. According to Frye’s story this was the man who had promised to share the reward money with Frye and to get him out of jail just as soon as the reward had been paid. But there was a hitch in the plan because the other negro could not collect the reward. So Frye had retracted his confession.

This version completely ignored official reports based on the statements of at least two witnesses. There were no witnesses to James A. Frye’s version. Marston then went on to describe the results of the case.

Nevertheless, with no other evidence in Frye’s favor save his own testimony and the offer of lie detector results, the jury acquitted him of first degree murder. He was sentenced on another charge, giving time for investigation which verified the lie detector findings. Frye and his attorneys gave the lie detector full credit for saving him from otherwise certain hanging.

Marston’s claim that there was an “investigation which verified the lie detector findings” is false. His conclusion that Frye was truthful was never proven by any means and was contradicted by a guilty verdict. There is one element of probable truth in the above statement. The defense argued for Marston’s testimony in the presence of the jury. Even though the trial judge ruled Marston’s testimony inadmissible, the little that the jury heard may have created sufficient doubt to save Frye from the first degree murder conviction that carried a death penalty. Marston’s reference to “another charge” doesn’t fully recognize that Frye was convicted of second degree murder, which carried a life sentence. Stories told elsewhere about someone else confessing and about Frye being freed after a few years are only myths. Frye served 17 years in prison, until being paroled in 1939. He died in 1953.

At the time Marston did his test of Frye on June 10, 1922 in Frye’s jail cell, John Larson had already been working for about a year at the Berkeley California Police Department on developing what ultimately became the polygraph, an instrument that made a continuous recording of several simultaneous physiological changes.

So why is Marston considered a pioneer in development of polygraph? It appears to be primarily because he loudly claimed to be able to detect lies, which makes no more sense than granting the same status to Charles Humble, the perpetrator of Computer Voice Stress Analysis. Certainly Marston made the first significant effort in U.S. courts to get some form of lie detection admitted, but he failed miserably. His failure left a stain on polygraph that still lingers.

The details of James A. Frye’s crime are well established. Frye, a black man, was accused of using a handgun to murder Dr. Robert Brown, also black, on the evening of November 25, 1920, in Washington, D.C. The shooting occurred in Dr. Brown’s office while another physician was visiting. Another witness said he’d seen Frye enter the office. No one actually witnessed the shooting, but the visiting physician said he chased Frye down the street afterwards until Frye shot at him. Frye was not otherwise known to the witnesses.

Frye was arrested on August 21, 1921 for a robbery. He confessed to the robbery and to the murder of Dr. Brown, but he soon retracted his confession to the murder, explaining that he’d been offered reward money for his confession by a drug dealer who then failed to pay him. He suggested that the drug dealer had really committed the murder. He also at a later time suggested that the physician who had been visiting the victim had been the murderer.

CHANGING VERSIONS

Dr. James E. Starrs of George Washington University, who has a passion for correcting myths surrounding famous murder cases, presented the results of his study of Frye at the 33rd annual meeting of the American Academy of Forensic Sciences in 1981. He pointed out that Frye’s version of what happened changed over the years as he filed requests for pardons and apparently neglected to match his “facts” with what he had written previously.(6)

In the 1923 Appeals Court decision, theMarston test was identified as a “systolic blood pressure deception test,” a name presumably offered by Marston. The Frye ruling was quite brief. It stated:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. 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.

The use of the terms “not yet gained” and “thus far made” in the opinion are often overlooked. The Court was clearly willing to rehear arguments for admissibility when there was more substantiation. Regardless, Frye became the rule until Daubert, seventy years later, when a new ruling for admissibility of forensic testimony said that Federal Rules of evidence had actually changed the rules for admissibility several years earlier without anyone making an issue about it.

Marston’s primitive blood pressure test became confused with the polygraph, developed by Larson, in the eyes of the courts and polygraph critics as time passed. It was enough that they both purported to be able to detect lies. Unfortunately neither had enough research in those early years to establish validity or reliability. Even though Larson’s procedure bore virtually no resemblance to what Marston had done, Marston’s failure to gain admissibility set a standard that was used repeatedly to deny admissibility of polygraph. His procedure of repeatedly checking blood pressure with a stethoscope quickly faded into obscurity.

The standard for admissibility today in federal court has been relaxed and is left largely to the discretion of individual judges. The notes of the committee that drafted revisions to Federal Rule 702 after the Kumho case (which followed Daubert) state, “An opinion from an expert who is not a scientist should receive the same degree of scrutiny for reliability as an opinion from an expert who purports to be a scientist.”(7) The committee expanded the “reliability” requirement to include: 1) sufficient data, 2) reliable principles and methodology, and 3) reliable application of the methodology.(8)

The Daubert case has become a benchmark upon which revisions to Federal Rule 702 are built and upon which subsequent cases like Kumho have been decided. A common interpretation of admissibility in federal court under Rule 702 is that expert testimony must assist the trier of fact (the jury if there is one, otherwise the judge) in resolving a disputed issue. If a judge decides that protracted and contrary arguments over the admissibility of polygraph testimony would constitute more hindrance than help in a trial, he can rule against polygraph on that basis alone.

The Court refused in Daubert to provide a checklist for forensic testimony admissibility, leaving the final decision to the trial judge. However, the Court held that several factors might be helpful, although not mandatory:

• whether the theories and techniques employed by the scientific expert have been tested;

• whether they have been subjected to peer review and publication;

• whether the techniques employed by the expert have a known error rate;

• whether they are subject to standards governing their application; and

• whether the theories and techniques employed by the expert enjoy widespread acceptance.(9)

Even though admissibility standards in federal court have been relaxed, polygraph testimony is still almost never admitted over objection. The same is true in state courts, which tend to follow the federal model. The exception is New Mexico here manageable rules have governed admissibility without major incident for several years.

Polygraph has advanced considerably since the pioneering work of John Larson and Leonarde Keeler in the 1920s and 1930s. The profession followed an entirely different route than that advocated by William Marston, whose work was a dead end never adapted to any practical use. Polygraph as it is known today is supported by numerous studies that distinguish levels of validity and reliability. It may be time to reassess the place of William Marston and James A. Frye in the history of polygraph.
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(1) Frye v. United States, 293 F.2d 1013 (D.C. Cir., 1923)
(2) Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
(3) Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999)
(4) Kelly, J., “The Truth About the Lie Detector”, Invention and Technology, vol. 19, no. 3, winter
2004
(5) Marston, W., “Can You Beat the Lie Detector”, reprinted in Polygraph, vol. 14, no. 4, Dec.,
1985
(6) Starrs, J., “A Still-Life Watercolor: Frye v. United States”, Polygraph, vol. 12, no. 2, June
1983
(7) http://www.law.cornell.edu/rules/fre/rules.htm
(8) http://www.bucklin.org/fed_rule_702.htm
(9) http://www.daubertontheweb.com/Chapter_2.htm