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Tuesday, November 23, 2010

The Invention Of Lie Detection: Dr. William Marston And The Creation Of The Lie Detector Test, Frye, & Wonder Woman

I recently came across an interesting piece of information: Wonder Woman's creator, Dr. William Moulton Marston, created not only her Lasso of Truth, but also the systolic blood pressure test, i.e., the predecessor to the modern lie detector (polygraph) test. The systolic blood pressure test should be familiar to those who have taken Evidence in law school because it was the subject of the landmark expert evidence opinion, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

Apparently, Marston was both a graduate psychology and law student at Harvard in 1915 when he began working on his blood pressure approach to deception (Marston eventually got his law degree in 1918). He got the idea for a lie detection machine based upon blood pressure after his wife, Elizabeth, suggested to him that "When she got mad or excited, her blood pressure seemed to climb." Marston eventually created his systolic blood pressure test, and,"[a]ccording to Marston..., he and his colleagues tested a total of 100 criminal cases in Boston criminal court, and his systolic blood pressure test led to correct determinations in 97 of them...." Dr. Marston soon thereafter either coined the phrase "lie detector" himself or adopted it from a reporter to whom he described the wonders of his device. See Vincent V. Vigluicci, Note, Calculating Credibility:  State v. Sharma and the Future of Polygraph Admissibility in Ohio and Beyond, 42 AKRON L. REV. 319, 321 (2009).

Thereafter,

After World War I, Marston pursued an academic career, and he appeared as an expert witness in the now famous 1923 Frye case, in which the defense unsuccessfully attempted to introduce his expert testimony as to the innocence of the defendant on the basis of his systolic blood pressure test....Frye was accused of murder in the District of Columbia and, after first denying all knowledge of the event, confessed and provided police with correct details of the killing. A few days later, Frye recanted the confession, claiming that he admitted to the crime because he had been promised a share of the reward for his own conviction. Marston then gave Frye his deception test in a D.C. jail and found his claim of innocence to be entirely truthful. When Marston was introduced as an expert witness at trial, the presiding judge excluded the evidence on the grounds that the test had been administered in jail 10 days before Frye testified in court and that it was irrelevant to the veracity of his testimony. Frye was convicted of murder....The case was appealed on the ground that the trial judge erroneously excluded Marston’s testimony. On appeal, the circuit court argued that the judge was correct in excluding the evidence....

Specifically, according to the court in Frye,

Just when a scientific principle or discovery crosses the line between the experimental and the 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-organized 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.

This Frye test, which focuses upon whether a technique of technology has general acceptance in the relevant expert field, thereafter ruled the roost in courts across the country for the next seven decades and explains why lie detector evidence has been deemed inadmissible everywhere except New Mexico: Dr. Marston's test results were deemed inadmissible in Frye. And while there were some indications that courts' attitudes toward lie detector evidence would change after the Supreme Court's landmark 1993 opinion in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), that door was effectively shut by the Supreme Court's opinion five years later in United States v. Scheffer, 523 U.S. 303 (1998).

So, if there were no Dr. Marston, what would lie detectors look like today? Presumably, Frye would not have taken a lie detector test and there would have been no Frye test. So, would some other opinion have taken hold in the absence of Frye and been applied by courts across the country? Or would different jurisdictions have created different rules? And would there have been the uniform rejection of lie detector test results? We'll never know.

What we do know is that there wouldn't have been a Wonder Woman without Dr. Marston.

In 1940, when he was serving as an educational consultant for Detective Comics, Inc. (now known as DC Comics), Marston asked why there was not a female hero. Max Gaines, then head of DC Comics, was intrigued by the concept and told Marston that he could create a female comic book hero—a "Wonder Woman"—which he did, using a pen name that combined his middle name with Gaines's: Charles Moulton.

Wonder Woman first appeared in a nine-page center spread in the December-January 1941 issue of All Star Comics. Then, in January 1942, she debuted in Sensation Comics number one, with a full version of her origin and her first adventure, armed with her bulletproof bracelets, magic lasso, and her Amazonian training. For our purposes, Wonder Woman’s magic lasso is her most notable possession and a link to the original and modern myth of the invincibility of the polygraph:

The magic lasso was supposedly forged from the Magic Girdle of Aphrodite, which Wonder Woman’s mother was bequeathed by the Goddess. Hephastateus borrowed the belt, removed links from it, and that is where the magic lasso came from. It was unbreakable, infinitely stretchable, and could make all who are encircled in it tell the truth.

-CM

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