Academic journal article The Yale Law Journal

On Evidence: Proving Frye as a Matter of Law, Science, and History

Academic journal article The Yale Law Journal

On Evidence: Proving Frye as a Matter of Law, Science, and History

Article excerpt


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. … 
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