'On Evidence: Proving Frye as a Matter of Law, Science, and History' by Jill Lepore in (2014-2015) 124(4)
Yale Law Journal 882
offers
a cautionary tale about what the law does to history. It uses a landmark ruling about whether scientific evidence is admissible in court to illustrate how the law renders historical evidence invisible. Frye v. United States established one of the most influential rules of evidence in the history of American law. On the matter of expert testimony, few cases are more cited than Frye.In a 669-word opinion, the D.C. Circuit Court of Appeals established the Frye test, which held sway for seven decades, remains the standard in many states, and continues to influence federal law. “Frye,” like “Miranda,” has the rare distinction of being a case name that has become a verb. To be “Frye’d” is to have your expert’s testimony deemed inadmissible. In Frye, the expert in question was a Harvard-trained lawyer and psychologist named William Moulton Marston. Marston’s name is not mentioned in the court’s opinion, nor does it generally appear in textbook discussions of Frye, in the case law that has followed in its wake, or in the considerable legal scholarship on the subject. Marston is missing from Frye because the law of evidence, case law, the case method, and the conventions of legal scholarship — together, and relentlessly — hide facts. It might be said that to be Marston’d is to have your name stripped from the record. Relying on extensive archival research and on the narrative conventions of biography, this Essay reconstructs Marston’s crucial role in Frye to establish facts that have been left out of the record and to argue that their absence is responsible for the many ways in which Frye has been both narrowly and broadly misunderstood.
Lepore states
The lecture had only just begun when there came a rap at the door. The professor, who wore owl’s-eye spectacles, walked across the room and opened the door. A young man entered. He wore leather gloves. In his right hand, he carried an envelope. Tucked under his left arm were three books: one red, one green, one blue. He said he had a message to deliver; he spoke with a Texas twang. He handed the professor the envelope. While the professor opened the envelope, pulled out a yellow paper, and read its contents, the messenger slid a second envelope into the professor’s pocket. Then, using only his right hand, he drew from another pocket a long, green-handled pocketknife. Deftly, he opened the knife and began scraping his gloved left thumb with the edge of the blade, sharpening it on the leather like a barber stropping a razor.
The class was a graduate course called Legal Psychology, held at American University, in Washington, D.C. It met twice a week, in the evening, in 1922. There were eighteen students, all of them lawyers. They had come to the lecture hall, a building at 1901 F Street, two blocks from the White House, after either a day at the office or a day in court; many of them worked for the federal government. In the course catalog, the professor—a twenty-eight-year-old graduate of Harvard Law School who had earned his Ph.D. in Harvard’s psychology department only the year before—listed a prerequisite: “Students must have a working knowledge of the principles of Common Law to qualify for this course, which is especially designed for practicing attorneys and lawyers having a genuine and active interest in raising the standards of justice in the actual administration of the law.” He was possessed of a certain ambivalent idealism.
The professor finished reading whatever was written on that sheet of yellow paper, said something to the Texan, and sent him on his way. Then, turning to his class, the professor informed his students that the man who had just left the room was not, in fact, a messenger at all; he was, instead, an actor, following a script written by the professor as part of an elaborate experiment. Imagine, the professor likely went on to say, that the man who was here a moment ago has since been arrested and charged with murder. Please write down everything you saw. Eighteen lawyers picked up their pencils.
In preparing the experiment, the professor had identified 147 facts that the students could have observed: the number and color of the books the messenger held, for instance, and the fact that he held them under one arm, his left. After the students had written down everything they’d seen, the professor examined them, one by one; then he cross-examined them. After class, he scored their answers, grading them for completeness, accuracy, and caution (you’d get a point for “caution” if, upon either direct or cross-examination, you said, “I don’t know”). Out of 147 observable facts, the students, on average, noticed only thirty-four. Everyone flunked. And no one, not a single student, noticed the knife.
The professor, William Moulton Marston, had designed this experiment in order to demonstrate to a room full of practicing attorneys that eyewitness testimony is unreliable. The demonstration was not without effect. Days later, two of Marston’s students became involved in a murder trial whose appeal, in Frye v. United States, established one of the most influential rules of evidence in the history of American law. On the matter of expert testimony, few cases are more cited than Frye. The 669-word opinion of the D.C. Circuit Court of Appeals established a new rule of evidence: the Frye test. This rule held sway for seven decades, remains the standard in several states, and continues to influence federal law. “Frye,” like “Miranda,” has the rare distinction of being a case name that has become a verb. To be “Frye’d” is to have your expert’s testimony deemed inadmissible.
Frye was an alleged murderer named James Alphonso Frye. People who cite the case usually know no more about him than his last name. They know even less about the expert called by his defense. That expert was Marston. Marston’s name is not mentioned in the opinions of either the trial or the appellate court. Nor, generally, does his name appear in textbook discussions of Frye, in the case law that has followed in its wake, or in the considerable legal scholarship on the subject of expert testimony. Marston is missing from Frye because the law of evidence, case law, the case method, and the conventions of legal scholarship—together, and relentlessly—hide facts. This Essay Marston-izes Frye, finding facts long hidden to cast light not only on this particular case but also on the standards of evidence used by lawyers, scientists, and historians. It uses a landmark ruling about whether scientific evidence is admissible in court to illustrate how the law renders historical evidence invisible.
The law of evidence began in earnest in the early modern era; the history of evidence remains largely unwritten. Before the eighteenth century, the written rules of evidence were few. In 1794, Edmund Burke said that they were “comprised in so small a compass that a parrot he had known might get them by rote in one half-hour and repeat them in five minutes.” But even as Burke was writing, treatises at once examining and codifying exclusionary rules had already begun to proliferate. This sort of work reached a new height at the beginning of the twentieth century with the publication of John Henry Wigmore’s magisterial, four-volume A Treatise on the System of Evidence in Trials at Common Law. Wigmore’s study of the law of evidence remains a towering influence in the “New Evidence Scholarship,” which emerged in the 1980s, following the adoption of the Federal Rules of Evidence in 1975. The law of evidence is vast; the history of evidence is scant. This is to some degree surprising, because in the last decades of the twentieth century, literary scholars, intellectual historians, and historians of the law and of science became fascinated by epistemological questions about the means by which ideas about evidence police the boundaries between disciplines—a fascination that produced invaluable interdisciplinary work on subjects like the history of truth, the rise of empiricism, and the fall of objectivity. But this line of inquiry has a natural limit: scholars who are engaged in a debate about whether facts exist tend not to be especially interested in digging them up. For all the fascination with questions of evidence, very few scholars have investigated the nitty-gritty, stigmata-to-DNA history of the means by which, at different points in time, and across realms of knowledge, some things count as proof and others don’t.
This Essay chronicles a turning point in the history of evidence. During the last decades of the nineteenth century and the first decades of the twentieth, I argue, standards of evidence in law, science, and history underwent transformations that were at once related and, to a considerable degree, at odds: the case method became standard; modern, government-funded scientific research began; and history, as an academic discipline, attempted to ally itself with the emerging social sciences by establishing a historical method. Curiously enough, the queer career of an obscure Harvard-trained lawyer and scientist who wore owl’s-eye spectacles lies, if not at the heart of this shift, deep in its gut, well stuck.
When that messenger with a Texas twang came to Marston’s lecture hall, he did everything he was told. He spoke his lines. He shifted his books. He reached into his pocket. He sharpened a blade. Marston’s law students, watching, observed almost none of this: they missed three out of every four facts. Case law is like that, too, except that it doesn’t only fail to notice details; it conceals them. This Essay, then, is a cautionary tale about what the law does to history: it hides the knives.
