Polygraphs and the Limits of Scientific Evidence in Court

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:02 Matt: It's interesting to me that the lie detector was immediately recognized by courts with no other scientific evidence. This doesn't seem right. This doesn't work.

0:00:18 Jenessa: It has all the bells and whistles of feeling science -y. It really does measure a real scientific thing, a real physiological response. It happens when you are stressed, not only when you're stressed because you're lying.

0:00:39 Matt: Welcome to Opening Arguments, where we're going to be talking about lies and liars and how to detect them, but also about scientific standards in court. Jenessa Seymour, what's up?

0:00:49 Jenessa: Nothing much. I have not been an expert witness, but I have listened to quite a few, so I'm interested to talk through some of these standards.

0:01:00 Matt: You're a bit of an expert, though. You've got an actual PhD in neuropsychology. Is that right?

0:01:04 Jenessa: Standards neuroscience yeah so neuropsychology is a slightly different field my bachelor's is psychology my phd is neuroscience

0:01:06 Matt: Neuroscience. Ah, you can see how I would confuse those things. Okay. All right. Right. So we're going to be drawing on that today to talk about scientific expertise and lie detectors specifically, but about the classic Frye standard, which is something I knew about the Frye Standard, but I did not know about Frye itself as a case. It's super interesting. We're going to talk a little bit about the history of the lie detector and then Frye as a standard and sort of what it means and what it takes to get evidence into court as a scientific expert. This is actually a case from 1923. This does not have anything to do with the Warren Court, but it's still good law in a sense, at least in New York and some other places. It's a really good look at how science gets used in court. So that's a great one for us to talk about. And I'm interested to hear more about your perspective on 5EUS and lie detectors generally, because it's not something I knew that much about. So we'll be back in a moment and we'll get to it.

0:01:15 Jenessa: Yes it is very

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0:02:03 Matt: The most interesting thing that we have to talk About in all of this is of course, William Moulton Marston, who I knew a little bit about before I got going, but this is the man who put the poly in polygraph. I got to to say, if you know anything about his personal history.

0:02:16 Jenessa: Understandable. I do know a bit about it

0:02:20 Matt: Yeah, it's fascinating. He's kind of like a Timothy Leary type who's just doing a little bit of everything and is kind of a dirtbag about it. His lifetime obsession was with truth and fiction, and he was twice sued, I think both sued and criminally charged for fraud. So he had a bit of an issue with the truth himself. But this man was an expert both in law and psychology, much like yourself. I think the comparisons might end there.

0:02:45 Jenessa: I sure hope so. No.

0:02:49 Matt: Well, I mean, you didn't invent a major beloved comic book character, so you don't have that going for you.

0:02:54 Jenessa: I don't think so you

0:02:55 Matt: No, not yet. You got time. You get time. Just for perspective, this guy was in a functional thruple in 1919, like pretty publicly in a polyamorous relationship with his wife and another woman in 1919. So full credit for that. This man was deeply involved in all kinds of things. And he personally studied under both a very famous psychologist and a very very famous lawyer who specialized in evidence, Wigmore, went on to invent Wonder Woman. That's actually the thing he's best known for. And of course, Wonder Woman's weapon, as we all know, is the lasso of truth, which she uses to make people tell the truth. That was kind of his obsession. Marston came up with this idea, as I understand it, to use systolic blood pressure to detect whether or not someone was telling the truth, I have historically loved blood pressure. But if somebody were to be asking me about, for example, a murder I did not commit, I think my my blood pressure would go up a bit.

0:03:42 Jenessa: You're detecting the core issue here

0:03:46 Matt: Yeah, we haven't talked about this yet, but I just don't think that's the best way to determine if somebody is not telling the truth.

0:03:53 Jenessa: It's frustrating because the device itself both his early version and what would eventually come to be like the lie detector the polygraph it's so cool from a scientific perspective perspective, as a really amazing stress detector. Unfortunately, being accused of a crime is probably pretty stressful for most people.

0:04:12 Matt: I mean, you'd be sociopathic not to have your blood pressure go up if somebody's sitting you down and strapping you in a chair and making you answer questions about a crime.

0:04:19 Jenessa: Yeah, that's the thing, right? The claim is usually the way this would work. We're going to hook you up, we're going measure your blood pressure, nowadays we're gonna measure heart rate, and one of the key things is called a galvanic skin skin response. So it's really just sweat on your hands. Scientifically, this is so cool. Humans, most of our body, we sweat when we are hot to cool off. So you've either raised your heart rate, you're exercising, or just like it's hot outside everywhere except your palms and the soles of your feet. On the palms and soles, you sweat when you're stressed. It seems to be an an evolutionary thing that a little bit of water, a little, just like the tiniest little bit, it makes your hands more grippy. So like imagine if your hands were like bone dry versus just like a tiny bit of sweat on your hands, like picking up like a glass vase. How, if it was a little bit damp, your hands would kind of glue to it, you know?

0:05:22 Matt: Sure.

0:05:22 Jenessa: So hands and soles of your feet, yeah, a little monkey swinging through the trees. That's our, you know, ancestors. When you're like, like, oh, geez, stressing out, you got to make sure you've got that really good grip. So we have this involuntary response. So you would think, oh isn't this amazing? Humans have this voluntary response, I'm going to go measure it, and you can't not lie to me. Except the problem is, yeah, you can control it, but that's not the only time when it happens. So it happens when you are stressed, not only when you're stressed because you're lying.

0:06:00 Jenessa: That's most people, if they are hooked up to all these machines and being asked if they're lying, they're going to have a really hard time not showing this physiological response. So it's got a pretty good false negative rate. It would be hard to be lying and get past it and not show a stress response. The problem is the false positive rate, exactly what you're identifying. Terrifying. It is stressful to be asked these questions. And so you can imagine, oh, don't worry. We're going to do this baseline. We'RE going to see how stressed out you are in the environment. I'm going to ask you your name. I'M going to ASK YOU THINGS THAT WE KNOW THE TRUE QUESTION. And then we 'LL ASK THE KEY QUESTION. It doesn't matter. You'RE sitting there and you'RE like, okay, okay. They'RE going TO ASK ME THESE QUESTIONS. I 'LL GIVE THESE ANSWERS. And the second they ask the, did you murder somebody? Your heart rate's going to, of course your heart rate is going to go up. So the false positive rate goes through the roof. And the problem is our criminal justice system, we aren't like, yeah, we got to nail all those criminals. There's that idea of innocent until proven guilty. What's that quote? It's like, oh, it's better for a hundred guilty men to go free or

0:07:19 Jenessa: Whatever number it is. Yeah.

0:07:19 Matt: Then one innocent man to be convicted or go to death or whatever. Yeah.

0:07:23 Jenessa: Whatever the quote is, I'm sure people are familiar. The point is to be very lowercase c conservative about this, that we want to be really sure someone's guilty before we send them to jail, not really sure they're innocent before we let them walk free. The device works in the exact opposite way. It will do a very good job of picking up people who are lying and also just people who ARE FREAKING OUT because they're stressed out because you're asking these questions. From a physiological perspective, it is picking up a very real response. It really is connected to stress. The device isn't like made up nonsense. It's just the false positive rate is going to be the fundamental problem here.

0:08:07 Matt: Well, when your only metric is blood pressure, Sure. I mean, like modern polygraphs do measure other things, right? Right.

0:08:12 Jenessa: Yeah. So today you would get blood pressure, heart rate, that galvanic skin response, the sweating. You would think like, oh, I want to look at your thoughts. Why don't I look at your brain? We are nowhere near the type of neuroimaging where we could actually know know that level of detail about your thought. That always gets proposed in sci -fi that I'm going to do a brain scan and I'm going to know what you're thinking. And we can do that on the level of, are you visualizing or not visualizing? Are you hearing a sound or not hearing a sound? But we are not even remotely close today, let alone back then, to the kind of tech where I could slap an EEG cap on you and know the content of your thoughts.

0:08:54 Matt: I've heard about the fMRI, right, is like you can measure exactly what's going on in somebody's brain, and that's the closest thing we have, but you're saying it's still not good enough.

0:09:03 Jenessa: Yeah. So with an MRI, eye, depending on the type of imaging you're doing and what you're trying to measure, we could get down to like one cubic centimeter, two cubic centimeters maybe of resolution in the brain. Neurons are like microns wide. They're much, much smaller than that. Not that a thought comes out of a single neuron, but to really measure that, we can certainly see your visual cortexes lighting up. We can even do things like, oh, I can see from primary visual cortex, you're looking at a checkerboard pattern or you're looking at light flashing at this frequency you know sensory stuff we've mapped really well so I guess in that sense if you tried to lie to me and say I'm not looking at a checker board I could catch you on that one but really if you visualize one in your head your brain tends to light up the same way as if you were really seeing it so even then it's not gonna work for that I've seen like tv shows where they're like look they're in the MRI dreaming and we're looking, look at the picture of their dream.

0:10:06 Jenessa: Like, that's not a thing, not even close. Nothing is looking at the brain yet, and I doubt ever that kind of technology is really hard to imagine would even be possible. Current things would do the galvanic skin response, sweat, they usually do two fingers, they would dothe blood pressure, theywould do the heart rate. Even then, it's still just a stress response, an anxiety response. You don't have a lying response. It's not a physiological thing that we have evolved it's like a response to tell everyone we're lying if anything we evolved the opposite to be able to exist in society and tell little lies and not have everybody know it

0:10:47 Matt: Well, a little wise, right. But there's that pop psych thing about how if you're looking left, you're making something up, and if you're looking right, you're remembering something. That's all nonsense.

0:10:52 Jenessa: Yeah people engage in all kinds of different little tics like that and the idea that a person could have a tell sure I know people who I can tell their I know them personally, right? And I can tell they're lying because they look at their feet or their voice gets deeper or like that kind of thing. It doesn't always mean they're laying. It could also mean they are shy or they are stressed. You get to know a person and that person might have like a tell that is, I know it because I know you. But there's not a thing that's, you know, oh, I barely even know you and I picked up on, you now what I mean?

0:10:57 Matt: Okay. That's funny. Yeah.

0:11:33 Jenessa: And there's certainly not a universal human tell. That's the problem.

0:11:38 Matt: But Marston was convinced that blood pressure was the way to go. Do you know how he got there? Like why that was the thing?

0:11:44 Jenessa: I don't. I have heard about him. I tried to do a little reading about him the allegation I've heard is that compared to other other people only get you know this like 70 percent accuracy and he was like 90 something. I do not know how that would be physically possible like I just cannot imagine how he would be better at it than another person like what would be the mechanism for that and if he was it would be a teachable skill right and someone else would do it today. Maybe just just because it was measurable easily at the time. Like, sometimes we go with a certain test not because it's a good measure, but because it is an easy measure. I would argue most standardized tests fit that criteria quite a bit.

0:12:27 Matt: We learn about Fry v. U .S. in law school. So it's always about Fry and that's about Daubert. I'm sure we'll talk about DAUBERT another time. I don't know if we have time to get to Daubert now, but these are the two cases we talk about for how you admit expert testimony, science testimony. Like specifically when you're looking at a scientific metric of some kind that you're going to introduce testimony on, this is how you do it. And I had never in my life actually found out what the facts of Fry were. And they're pretty fascinating, actually. Fry was an interesting case for Marston to pick up on. And so in the book, The Secret History of Wonder Woman by Jill Lepore, best known for her New Yorker work, she gets pretty deep on Marston and is talking, of course, about his very interesting life all around. But we're focusing, of of course, on his legal career. But in the course of his career, Marston worked both under Hugo Munstenberg, who was the head of psychology laboratory at Harvard, but also John Henry Woodmore, who is a very famous and actually still known as one of the greatest academics in the study of evidence.

0:13:27 Matt: So this is a Very Unusual Combination, very much like yourself in science and law. Marston had some ideas about how we could have some sort of objective scientific test test of lying. And of course, it was systolic blood pressure that arrived at the time. He wasn't the first person to come up with this, but he sort of perfected this particular device for systolic blood pressure testing.

0:13:45 Jenessa: Not even just blood pressure in general. He wanted the systolic, not the diastolic.

0:13:50 Matt: Yeah, the one on the top, as I understand it. You can't test Mr. Marston. He's long gone.

0:13:52 Jenessa: Why would one of them be more relevant than the other

0:13:58 Matt: But that was his theory. It was the idea, though, that somehow this was the consciousness of an attitude of deception. That's what he said. And he was obsessed with the idea that we could have an objective standard, that you could have testimony as to whether someone was actually telling the truth or not. And obviously, that would be great if you could could actually have an objective test of truth or falsity in court. It would really cut short a lot of trials. It wouldn't make them a lot easier. So Marston was working with his students to try to develop the sort of perfect objective test of truth of falsity and court. And he had two students named Lester Wood and Richard Mattingly. And it seems like from what Jill Lepore writes that they formed a law firm for the exclusive purpose of representing this one person, James Fry.

0:13:58 Jenessa: Wait

0:14:42 Matt: Fry is an interesting case. He was charged with a robbery and during the investigation of this robbery which was what you're convicted of he confessed at some point to killing a doctor named dr. Brown and notably both the doctor and the defendant in this case were black yes it is actually he did also try to allegedly robbed the doctor so the story as I understand it was that he went to Brown's house to get medicine for gonorrhea and they had a fight because Frye admitted he didn't have any money and he just wanted the medicine anyway. He says that a gun went off, his gun, in the course of this fight with Brown. For whatever reason, I'm not sure why they're asking about this murder. It seems like kind of unclear some of these things. So Fry, his only connection to this murder was his confession, which is exactly what Marston was looking for. It was a case in which someone had been forced to confess. This is an interesting sort of parallel with Miranda, of course, where we're talking about interrogations, we're taking about the ways the police get confessions, and how people have to be told their rights. I think there was actually a Miranda case.

0:15:00 Jenessa: Is this separate from the robbery okay oh

0:15:48 Matt: Frye made a full formal confession. Marston and his students got involved. Now, Lepore points out that his students never actually identified that they were his students in this case. They never identified that they were participating in an experiment, that they're trying to get these things confirmed in court. They basically just formed a law firm for this purpose, represented Frye, and tried in the murder case to introduce the testimony of Marston with his very famous new systolic lie detector.

0:16:16 Jenessa: The point of them not admitting they're his students like there is a conflict it's not necessarily that he couldn't have testified but there is conflict there that should have been identified

0:16:26 Matt: Yeah, probably. Lepore claims to be the first person to actually really make this connection, that he says the court's never figured it out. I thought that was kind of interesting. This is all kind of an experiment, and that Fry was one of the many people that Marston sort of experimented on in his life to try to get further. Well, I mean, they tried to do him a favor, like they're basically providing full legal services through to the appeal.

0:16:47 Matt: So of course, this was the first time that, as far as I know, as well as I could could find that anybody had tried to introduce this kind of lie detector test, this kind of science, quote unquote, into the actual record of a trial. Of course, it didn't take to it very well. They determined that this was not tested enough. This wasn't something that was actually reliable or admissible, and they excluded it. And of course, as I'm sure most listeners know, lie detectors are still not admissible. That's still not something that you can bring into court. I don't think it ever has been anything that you Can bring into Court. So Fry was sentenced to life at 22 years old. He'd already been convicted of the robbery, and he was convicted of the murder of Dr. Brown. The judge had the opinion, which I think is pretty fair, that the only people, the only experts who could actually determine whether a witness is telling the truth is the jury and nobody else.

0:17:34 Matt: You can't bring in an expert to say that somebody is tellingthe truth or not. McCoy actually said it in open court that he knew nothing about the test and that he would read Marston's research when he got back from vacation.

0:17:34 Jenessa: Fair there that is an interesting point that like it's one thing to have an expert to testify about could a person have gotten from this place to that place could aperson do this blah blah blah but there is something inherently strange about the idea that someone could testify about whether a person is telling the truth when that's the point of a

0:18:11 Matt: Yeah, yeah. It really is supposed to be. Yeah, I mean, we have a machine that can tell a jury whether you've been drinking that night, right? We can blow into a machine and get an objective test of the blood alcohol in your system. But we do not yet, as you said, have a test. And it's probably just as well, because it is such a complicated thing to know if somebody's telling the truth or not. This is a case in which the only evidence against Frye was his own testimony. And he was trying to say that was actually a lie that was coerced. And I think, you know, that's certainly worth considering. But that, again, is something he's going to have to testify to. And this is before Miranda, so it doesn't matter that he wasn't told his rights. Judge McCoy eventually, a few days later, sentenced him to life at, again, at 22 years old. This is appealed to the D .C. Court of Appeals, and they have a very, very short opinion. It's actually 669 words, very sure opinion we can link to him. And they upheld the lower court's decision, and they said 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. So it cites no authority. Authority. It just straight up says, this is not something that's reliable. We can't admit it. We don't know what this is.

0:18:15 Jenessa: Jury yeah sure Sure. Yeah. Yeah,

0:19:25 Matt: Fair enough, because at the time, of course, this was not a thing. And this pretty much became the standard. The standard that I've just read you about the reliability of evidence and about whether it's in general use became what we call the Frye standard today. Now, the Daubert standard, which again, we'll talk about another time, I think, but the Dauer standard is pretty much the controlling law from 1983 now about expert witnesses. But you've told me that the Freye standard is actually still good in New York. Is that right?

0:19:47 Jenessa: The critical thing with Daubert is, essentially, the Supreme Court is going to say Daupert is basically what the federal rules of evidence say. We came up with the federal rules of evidenced, and Fry doesn't jive exactly with the Federal Rules of Evidence. So when you go into federal court, what do you do? The Supreme Court in DauBERT essentially is going going to say that's a problem and we're going to go towards the federal rules of evidence and they're going come up with this five -part test and all of that. But when you're staying in state court, some states said, let's just do Daubert because a lot of states are more or less in their own code using an analog of the federal Rules of Evidence. New York has to be New York about everything. So we have the CPLR instead of the FRA, Federal Rules of Evidence. For our state courts, our code is substantially different than the federal rules. And it's really annoying. And it makes practicing in New York really difficult. We still follow FRI. As of the last time I studied this, which was maybe two -ish years ago I was in evidence, three years. So, we are following the Frye standard for our state -level cases. I suppose that could cause a problem if you then try to appeal to a federal court, but rarely are your cases going to do that where you had an expert. Could get interesting. So yeah, some states, New York, and I think it's a minority of states, but New York is one of them that is sticking with Frye as the standard. And of course, because I'm from New York I prefer it. I happen to think that it is a better way to do things because the Frye standard is very focused on, is this good science? Is this well accepted in the field? Is there something that other scientists would agree with? And I feel like we have moved more and more towards this battle of the experts idea.

0:21:55 Jenessa: You're always going to find, no matter how crackpot a theory, you will find someone with a PhD in the relevant field who has every reason to know better, who is going to tell you this total bullshit thing. I have a PhD in neuroscience. I'm sure I have incorrect information about neuroscience inside of my brain. Nobody's perfect, right? Presumably, I would not continue to have those misapprehensions if I was about to testify about them. I would check my work. I think the Frye standard is really focused on like, whether the evidence is good. And I feel like we've started to move with Daubert and the Federal Rules of Evidence more towards, well, is this accepted enough that we're going to let somebody testify? And now you can, well if you disagree, you just go get your own expert. And it's like, maybe that makes sense from a legal standpoint. But from a scientific standpoint, it doesn't. There's just like, there's a truth out there and we're trying to get to it. And I don't, maybe you shouldn't go to jail if there is a minority scientific opinion that would get you out. From a scientific perspective, it's very frustrating, this idea that two scientific experts battle it out and then a jury of non -scientists decides who's right. You know what I mean?

0:21:55 Matt: Well, I guess we should talk about the difference because Fry is in 1923 and Daubert's in 1993. So in those 70 years,

0:23:19 Jenessa: It's been a while, yep.

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0:24:58 Matt: Daupert is a little more complicated. But the idea of basically Fry, as we were talking about, is just, is this generally accepted in the field? Is this something that has already been tested and that generally people recognize? What's the difference with DauBERT?

0:25:11 Jenessa: Daubert gives us a five -part test for a trial court. The first one, whether the technique or theory in question can be and has been tested, can be tested. I mean, that's just required for it to be like science. I'm sure somebody will argue with me about that. Whether it has been subjected to publication and peer review, its known or potential error rate, the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within the relevant relevant scientific community so that last one I think is critical if you have all of the above I published it in a journal do you know how much bullshit gets published in scientific journals editors at journals are not doing anything as far as I can tell I mean my first paper got published referencing the blue and orange in a graph and we had since decided that everything would be in black and white and nobody caught it okay like there are typographical errors in there that are embarrassing that nobody caught

0:26:17 Matt: But doesn't it still have to be peer -reviewed to get in a journal? Sure.

0:26:20 Jenessa: The peer reviewers don't catch it the peer reviewers aren't paid they're just doing it out of the like there's a whole thing going on of like you're supposed to do it because it's good for the community but nobody's paying you and you're super busy like I've gotten comments from peer reviewers that like so clearly just fundamentally misunderstood what I was doing and I'm like I don't think I wrote it that bad that you could reasonably presumably misunderstand this this poorly. I think you only read like the first and the last paragraph and wrote these comments. And now I have to respond to it. The editors of the journals, they do very little. They must be doing something. I don't know. Somebody's paying them to do something, but they're not doing what you would think an editor at a newspaper does where they would like check for errors. They definitely don't check for scientific errors. There's just just a string of bullshit in peer -reviewed publications, unfortunately. And it's only getting worse. We're catching it with AI publications coming out now. There are publications coming Out where the graphs, the images are obviously AI nonsense and somehow they're getting through peer review in journals that are not total BS journals. So something is going very wrong in the process. Too many scientists, honestly, and too many people trying to publish. For me, the standard that it has been subject to publication and peer review is unfortunately no longer a barrier to keep

0:27:50 Jenessa: All bad science out. Informally, it would do a pretty good job of like, when you say, oh, like, well, one person publishes one paper and it was bad enough and got enough attention, then it'll get retracted because enough people will publish their own response of like this is embarrassing and then somebody will be like you have to you have to take that down that's terrible but if it's just like low quality but it's also low attention it stays in there and really what happens as part of the scientific process is nobody can replicate that and nobody else publishes that and so it's washed out in the field of there's 200 papers on on this topic and only one came to this conclusion and so we all just ignore it, you know? So that's why I find that so concerning, this idea that like one of the five factors equally weighted as far as I can tell is it was published in a peer -reviewed journal and I'm like, oh no, ohno, that used to mean so much and it's meaning less and less.

0:28:53 Matt: I really thought it meant something. Well, that's disappointing.

0:28:55 Jenessa: Okay, it means more than like a blog post. It super duper, duper does. And certain journals have way higher standards. And like, I would be shocked if I saw some total nonsense end up in them. But the standards are getting lowered. And it's just becoming too easy for stuff to slip through the cracks because the whole system is fundamentally flawed. I'm a little jaded about it. And I left the field for a reason.

0:29:19 Matt: Yeah. Seems like you are. Well, I guess I want to ask you then, because the Frye standard is that it's generally accepted by a significant portion of the relevant scientific community. What's the difference?

0:29:29 Jenessa: Once you get into court, Or maybe, to be fair, it would be hard to uphold this. To me, when I read that, what I'm hearing is scientific consensus. This should be a well -established consensus opinion. The way I was taught it is, under the Frye standard, you are not going to get somebody on the stand who's got, hey, listen, this is a little bit out there, this is a little bit new, but what if? There are some scientists in my field who agree with me. It's been published. You know, that's good enough, right? Daubert does say widespread acceptance in the relevant community. What is widespread? Fry would be, the way it was taught to me, Fry would be more like, this is not even being challenged. This is around. This has settled. This this is consensus. I don't know, maybe that is too high a standard in a criminal situation where you should be entitled to every possible defense. I waffle back and forth on this quite a bit. This question plagues me, I guess, is what I would say. I prefer the idea that it should be well -established rather than let a jury decide what's true science. But then again, here we are in front of a jury so what is the option really oh

0:30:49 Matt: Of course, at one point, phrenology was true science, right? We had the idea that head shapes and measurements could be science. And not until very recently, until the National Academy of Science report in 2009. I remember when this came out, bite marks were considered to be scientific evidence, right? That was something... Yeah, no, I mean, a lot of this stuff is just kind of voodoo, but nothing against voodhoo, honestly, which seems more scientific than some of these things. Or even something like arson investigation, right? There's so much of it that has been disproven. The National Academy of Science report, that was a big one in 2009. We're talking about another time. Or handwriting analysis, right, which has been kind of a gray area that you can determine somebody's personality or culpability from their handwriting, right.

0:31:07 Jenessa: Don't get me started on forensics oh yeah my understanding of that is that identifying somebody's characteristic way that they write to like tell the same person wrote it that that's not so bad but the idea that you will discern personality from handwriting is absolute pseudoscience yeah that's no

0:31:52 Matt: I would think. And as somebody with terrible handwriting, I have to hope that it has nothing to do with my character. This stuff comes and goes, but it's interesting to me that the lie detector, director, as developed by Marston and others at the time with the blood pressure thing, was immediately recognized by courts, again, with no other scientific evidence, with nothing else to counter it. They're just like, no, this doesn't seem right. This doesn't work.

0:32:01 Jenessa: Way yeah it's interesting because you would think it has all the bells and whistles of feeling sciency and like I said it really does measure a real scientific thing a real physiological response it really doesn't indicate stress is a possible response to light like it makes sense. It's quite savvy of a court to spot. Perhaps that's the issue is they weren't going, oh, because of the false negative rate. They were just like, what the hell is this? But I would have expected them to be like, ooh, what is this and be more excited about it as opposed to super negative.

0:32:58 Matt: Like in the early 20s, if somebody says, well, you know, it takes conscious effort to lie, and telling the truth is natural, so when you're making conscious effort in your body, it's going to show systolic blood pressure. I can see that working 100 years ago.

0:33:11 Jenessa: Yeah, it makes sense.

0:33:13 Matt: Yeah? Yeah, to a degree.

0:33:14 Jenessa: I find it really interesting that they did hone in on that. It's unfortunate because you would have hoped it would be used to say, and this is why you can't use this to say somebody's lying and send them to jail. And yet here we are. And from my understanding of what you said, it was, oh, great. So we can send a black man to jail for a murder that he is only connected to by his own confession. And this thing that would have have theoretically exonerated him no I that could easily have contributed right interesting

0:33:48 Matt: Yeah. No, he insisted for the rest of his life that he didn't do it, but nothing else to prove it. And I'm sure these days there'd be plenty better forensic evidence that we could work with to prove that. The polygraph, it continued to develop and it got a lot better after Marston, as I understand it, used a lot more different kinds of physiological factors, but it has never, as far as I know, been admissible in court.

0:34:11 Jenessa: No just on jerry springer maury yeah

0:34:15 Matt: And for federal job applications and stuff, they still use it and all kinds of things. I mean, it's still seen as an investigative tool one way or another of something that you can use and if nothing else like you're getting people to really focus and try to answer your

0:34:18 Jenessa: I yeah yeah yeah I know someone once who had it for a job and they said what they found super strange about it was the whole setup on this is obviously if if there were any scientific validity to the thing to begin with, it's completely out the window at this point because what they did was they were like, okay, we're going to define what it means to steal from the company. And it was like, even accidentally going home with a pen in your pocket. And then later they're like, so have you ever stolen from the country? And he's like, well, now I'm sweating because I've probably accidentally without my knowledge gone home home with a pen in my pocket but yeah like but you're making it sound like if I say yes to this I've been engaged in extortion yeah I I'm not quite sure what the goal was with that

0:34:50 Matt: Questions who hasn't done that yeah right embezzlement yeah it makes sense you know even for criminal investigations right there's always the stories about like they hook up uh somebody they put them like a colander on their head and hook it up to a copy machine right and like they press the button the copy machine it says he's lying like they use that in a wire episode but that's like that's actually taken from you know actual police investigation techniques, apparently.

0:35:32 Jenessa: Process

0:35:44 Matt: Yeah, they're still doing it just to mess with people, I guess. I don't know. I mean, I think the idea is it brings people into the moment and focuses them and forces them to think that they need to tell the truth, that they're going to take a polygraph. And there is still this sort of pop psych idea that, well, give me a polygraph, I'll tell you right now.

0:35:40 Jenessa: It's not admissible but are police still doing it for what purpose yeah if it's not admissible, then what good would it be? Well, all right. I suppose.

0:36:08 Matt: It's very interesting to me, though, that this was something that Marston staked his reputation on. It is pretty well understood at this point. He wrote wrote the appellate brief. I think it's fascinating that the Frye case, I didn't actually realize this until I started looking into this. I always assume this is a Supreme Court case, but it's not. It is a DC Circuit case.

0:36:23 Jenessa: It's so famous. And for some reason, it just stopped at the DC circuit, but the whole country was using it for decades.

0:36:32 Matt: And it's such a simple, short, to -the -point decision that was not based on any kind of... Because something like this today, you'd have to have a full trial in which you actually have... Because Marston didn't get to testify. The judge objected and said, I'm not going to let this guy testify. Who is this person? What is this that he's talking about. The judge excluded it. They appealed that. The D .C. Circuit, without any kind of record in front of them, were just like, yeah, this doesn't make sense. We're not going to use this. This is not how it worked today. I can tell you that in 2025.

0:37:02 Matt: Today, we would create an entire record. We'd have competing experts. We would have the expert testify. We could actually look at the science and try to figure out if it's any good. Like you said, it was used for so long, and it's still being used in some places. I think there's five or six other states besides New York that they still use it. It is a D .C. Circuit case. I just can't think of anything else, of any major decision that I could name that is not a Supreme Court case that controls as much as Fry did for as long as it did.

0:37:28 Jenessa: I did find that so interesting when we were thinking about some topics. I was like, oh, what about Frye? And then I looked and I was Like, how is that not Supreme Court? Because it It is every evidence class you will learn about this one, and then you'll learn about Dauber as the new standard. And it was a circuit case, but I guess, did they not appeal it to the Supreme Court?

0:37:50 Matt: They might have, but as far as I know from everything I could see, Fry was the controlling authority, the actual D .K. Circuit Fry case.

0:38:01 Ad: [Ad break 3 — ad music]

0:38:01 Matt: As an interesting note, Marston's intention was to actually administer the test while people were testifying, just to give that that little extra bit. And that's something the court definitively ruled out. They didn't want people being subjected to a systolic blood pressure test in the middle of their testimony. It's a very different time, obviously. I have known about the Frye test for 25 years or whatever, and I've just never thought about what was behind it or the people involved. Some interesting characters here. Marston himself, not long after Frye, it ended up that Wood and Mattingly had to try to distance themselves as much as they could from him because he was actually arrested for fraud. He was sued for fraud by a law partner for $5 ,000 and then arrested for fraud for a separate business venture that he was alleged to have ripped off. And I think that's very interesting that the man who was obsessed with lying ended up, I think the case was dismissed eventually, but he was accused multiple times of actually committing fraud. And then he goes on in 1941 to create Wonder Woman and her lasso of truth, just to give that extra bit of a lie detector history. There's also like a weird psychosexual underpinning to Wonder Woman that we don't really need to get into right now.

0:39:08 Jenessa: My partner read this book and told me a little bit about it, and I was like, I must share this, the fact that this overlapped with the case. But he showed me a couple of the panels about her trying to use the lasso of truth and court and it's like man this guy's working through some stuff in these panels

0:39:26 Matt: Yeah, he had some very specific theories about bondage and tying people up and what that would do. Not Wonder Woman's Dale necessarily, but he was working some things out, like you said. But I'm always fascinated by people like this who are sort of multifariously able to do things like this, right? To master line psychology. And again, master by the terms of 1923.

0:39:50 Jenessa: We were trying our best in the 20s okay everybody needs to cut some

0:39:56 Matt: You know what? I bet Molly Mulden Marston was a Gemini. Indeed, indeed. He was born on May 9th. So pretty close. He wasn't, but as long as we're talking about science, obviously we have to talk about... Yeah, no.

0:40:03 Jenessa: Slack oh no you're gonna get us into some serious trouble now oh right why

0:40:14 Matt: So yeah, he was born like 11 days before the Gemini cut off. He is an honorary Gemini. From everything I've read about him, he's definitely... And again, I say this as a triple Gemini, as a Gemini I absolutely do not believe in astrology, but I also love it. And I also think it's scientific, clearly. And as a gemini, I can can hold both of those things in my mind. But actually, as of May 9th, he would be a Taurus.

0:40:28 Jenessa: Not oh god oh

0:40:37 Matt: The witches in my life would tell me that I'm ridiculous for even caring about sun signs, but that's a whole other thing.

0:40:43 Matt: Yeah. So that diverted quickly from science all the way to pseudoscience.

0:40:43 Jenessa: My god yeah yeah perfect I do appreciate this distinction of looking at it from these different perspectives I forget who I am quoting here but it's essentially like with these two tests we're really shifting who's the gatekeeper and the idea with fry really would have been that the scientific community is the gatekeeper of what is

0:41:07 Matt: Not the judge so much.

0:41:11 Jenessa: Science yeah like dauber this worry that you're gonna make the judge because it's not the jury who decides are you an expert right the point here is are you allowed to be an expert witness is the jury even allowed to hear what you're gonna to say. So now the judge has to go, oh, are you qualified? Is this good science? And instead Fry is just going to say, the scientists are telling me it's good science. I don't have to assess whether it's Good Science. That's kind of the distinction I've seen drawn. And I think that's probably why I'm drawn to it is this idea of like, leave the scientific gatekeeping with the scientists and not the judges. And I've watched a lot of judges do it really badly when they're like, I am convinced by this total bullshit.

0:42:00 Matt: Generally accepted, does that mean 51 %?

0:42:05 Jenessa: I would sure hope not.

0:42:07 Matt: Kind

0:42:07 Jenessa: Maybe that's why the federal rules of evidence tried to lay out a more clear standard. I don't know that we had a problem before that that like had to get fixed. It's really my understanding of why we switched to Daubert is that the court was like, well, we have this federal rules of evidenced thing and we kind kind of can't have a rule that doesn't follow the federal rules of evidence so here we go if you were just asking me outside of court what is generally accepted in the scientific community no it would not be 51 it would be like 90 that I would read that as we have reached a consensus we are confident of this but I don't know maybe that's not how people were reading

0:42:49 Matt: Of reminds me of trial by compurgation, which is when you basically just bring in enough enough character witnesses that the court is like, sure, okay, this guy's telling the truth. And you could have just competing numbers of character witnesses. And I think once you reached a certain threshold in some jurisdictions, that was enough. So, you know, that has its own kind of thing.

0:43:05 Jenessa: It my understanding of the british system is like the non -adversarial thing is like Like the judge would just be like, I need experts. Like people show up and explain some shit. And if it were not this system of the plaintiff finding an expert who agrees with them and the defendant finding an expertise, then I don't know what would happen. If it were an expert that agrees with him, maybe we wouldn't have this problem.

0:43:25 Jenessa: Maybe I would be less worried about the idea that one expert shows up and they could be a crackpot if it was more just an information seeking. And kind of like that, what you're describing, yeah, if we just had a whole pile of experts, it gets increasingly less likely that you found the one crackpot. Now, sometimes you found a group of them that like to all go to the same conference. But usually, the more scientists you get saying the same thing, the More likely it is you found the consensus, right? I go back and forth and back and fourth on how we ought to handle this. And maybe the British system is really just the answer that experts shouldn't be sided.

0:44:07 Matt: Did you ever see the Staircase documentary?

0:44:08 Jenessa: Is it a movie? I don't know.

0:44:10 Matt: It was also a movie. I didn't see the movie. We watched some documentary. It's so funny when I talk to people about this because the Stairscase is about Michael Peterson, who almost certainly killed his wife by pushing her down the stairs.

0:44:21 Jenessa: Oh, the Lacey Peterson case.

0:44:23 Matt: No, that's a different Peterson. Peterson. This is Kathleen Peterson. Or at least have better, more unique names to keep it simpler.

0:44:25 Jenessa: Oh geez. Oh God. Can everyone stop murdering their wives? Jesus.

0:44:33 Matt: The first episode of The Staircase, at the end of it, they just have like a table full of experts, like the scientific experts. And Michael Peterson has lots of money. This is so funny. This is, I guess, maybe just as a lawyer watching this. It's like, well, this is obviously a documentary about how you can just try to pay for the best possible defense by hiring a bunch of experts. And meanwhile, a buncha people watch this and somehow think that Michael Peterson didn't do it. And to me, it's incredibly obvious that he did it. I mean, it is that or like an owl hit her. Like that is the other theory basically. That an owl flew in and like battered her down.

0:45:04 Matt: I was certain when I watched this that the documentarians were trying to make a point about how you can buy justice in America. And it turns out not only were these French documentarians not making that point, but one of them actually ended up dating Michael Peterson later.

0:45:17 Jenessa: What?

0:45:17 Matt: Because I guess they believed him. I don't know.

0:45:19 Jenessa: Well, you'd have to, or else you'd be worried he was going to murder you. Yeah.

0:45:22 Matt: It is just such a strange thing to me. I mean, it's so obvious that, because this is what you're saying about the competing sort of piles of experts, right? That especially with Daubert, when the judge is allowed to determine what the best science is to introduce at any given trial, that you have the risk in America, especially that you can just get the justice that you can afford. I think at the end of the day, what we can learn from Fry is that we can't just go admitting any old science that shows up in the courtroom. Like we do actually have to have some kind of established, reliable history. And certainly William Marston's technology was not ready for primetime at the time that he introduced it and it's still not admissible today so I think that means something

0:46:00 Jenessa: Yeah, I definitely don't want to make it sound like the Daubert standard is terrible or like, oh, or like the Frye standard is perfect either. But I do think it overall, both standards are doing a pretty good job of keeping out crackpot nonsense. I do still have this deep fear about this battling experts thing. But I think you're right that here, especially like in keeping with our good law theme, they got it right this time. And I think they got it right for the right reasons that they were really picking up on like what the hell is this I never even heard of this and there's a reason I never ever heard of it because it's nothing

0:46:37 Matt: I didn't even know from all the time I knew about Fry that it was a murder case so now I know a lot more than I did so this is really interesting to talk about and I appreciate your scientific expertise I think that everything you've said today is

0:46:48 Jenessa: It wasn't under oath so

0:46:51 Matt: Admissible it seems reliable and it seems generally accepted by the scientific community so I'm in well we'll pick it up next time with some more Warren Court stuff, but this was a fun diversion and a fun excursion into your scientific knowledge. So thanks for sharing.

0:46:57 Jenessa: Yeah yeah I would say yeah

0:47:09 Matt: All right. Talk later.

0:47:08 Jenessa: Thank

0:47:45 Matt: So we'll come back in a moment and wait, hold on while we come back.

0:47:48 Jenessa: You yes yes because we're doing the intro

0:47:53 Matt: But it's a really interesting look at how science get used. It's a real interesting look at how science gets used. Okay. Try that again. It is a really interesting look. It has a really good look at how science got used. Wow. It was a really interesting look how science was used.

0:48:06 Jenessa: Now do you want me to do it I love that.

0:48:07 Matt: I have a broken record. What is wrong with me? I have had a long day okay a lot of this stuff is is just kind of voodoo but uh nothing against voodoo honestly but uh which seems more scientific than some of these things I say this as a triple gemini