VIII. THE LIE FINDER

Marston was indicted by a federal grand jury in Massachusetts on December 1, 1922. A warrant for his arrest was issued in Boston, but on February 19, 1923, a U.S. marshal reported that he had been unable to find the defendant in the city. A secret indictment was then forwarded to Washington, where Marston was arrested by federal agents. His arrest was reported in both the Boston Globe and the Washington Post. “Marston, Lie Meter Inventor, Arrested,” read the headline in D.C., in a story that made a point of remarking on Marston’s role in the Frye case. The irony—an expert at deception arrested for lying—wasn’t lost on anyone.

Marston was charged with two crimes: using the mails in a scheme to defraud, and aiding and abetting in the concealment of assets from the trustee in a bankruptcy. Both allegations stemmed from his role as treasurer and stockholder of United Dress Goods, a firm he had founded in Boston in 1920. The grand jury charged that Marston had placed orders with businesses in New York for large quantities of fabric and, in that correspondence, had made “false and fraudulent pretenses” regarding the firm’s financial condition. United Dress Goods filed for bankruptcy in January 1922; Marston was charged with having knowingly and fraudulently concealed $400 from the firm’s trustee.

After his arrest, Marston was brought to Boston, where he was arraigned on March 16, 1923. He pleaded not guilty, insisting that he had no knowledge of the transactions of which he was accused. Bail was set at $2600. On March 17, the story appeared in newspapers in Boston, Washington, and New York. Marston told one reporter that the “publicity was ruining him.”

Marston was defended by an old friend from Harvard Law School, Richard Hale, a founder of the Boston firm Hale and Dorr (now WilmerHale), whose offices were in the same building as Marston, Forte, and Fischer. “I persuaded the United States authorities here that they had no case whatever against Marston,” Hale explained. As to the charges, “I investigated those things fully and was convinced they had no taint of criminality in them.” At the time of his arrest, Marston was teaching a slate of courses—including Psycho-Physiology, Advanced Theoretical Psychology, and an applied course called Psycho-Legal Laboratory. It’s not clear whether, after he was released on bail, he finished the term in the spring of 1923. In any case, his appointment was not renewed. Even though the case never went to trial, the scandal cost Marston the chairmanship of the psychology department at American University, the directorship of the only psycho-legal research laboratory in the United States, and his professorship.

What the scandal cost James Alphonso Frye is more difficult to reckon. Marston’s arrest and arraignment were reported in Washington newspapers the month Mattingly and Wood filed their appeal. The publicity could hardly have helped their cause. It may also explain why Mattingly and Wood requested an extension to prepare an additional brief.

“I am so sorry that owing to my absence I was not able to assist in the Frye case,” Wigmore apologized, in a letter he later wrote Marston, explaining that he had been out of the country for some months. That summer and fall, Mattingly and Wood—aided, presumably, by Marston—prepared their science brief, Memorandum of Scientific History and Authority of Systolic Blood Pressure Test for Deception. The chief purpose of the brief was to diminish Marston’s role in establishing the detection of deception, placing him as only one among a larger number of scientists working in the field. It reads as Frye’s attorneys’ attempt to separate the credibility of deception tests from the credibility of their expert witness, a strategy that would have been wise, even if Marston hadn’t been arrested. It didn’t work. The D.C. Circuit Court of Appeals issued its ruling in Frye v. United States on December 3, 1923: “[W]hile 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.” The federal fraud charges against Marston weren’t dropped until January 1924.

Second, we found that the FBI did not always comply with its own policy governing employee access to Sensitive Compartmented Information, classified national intelligence information concerning or derived from sensitive intelligence sources, methods, or analytical processes, which is to be handled exclusively within formal access control systems established by the Director of National Intelligence.  The FBI’s policy generally prohibits access to Sensitive Compartmented Information for FBI employees who have not passed a polygraph examination within a specified period.  We identified instances in which employees unable to pass multiple polygraph examinations were allowed to retain access to sensitive information, systems, and spaces for extended periods of time without required risk assessments — potentially posing a security risk to the FBI. 

There is no evidence John M. lied regarding any of the relevant questions on his polygraph screening "test."

In a House of Representatives joint committee hearing today, Peter Strzok explained that an employee's polygraph being "out of scope" means that the employee is overdue for a periodic polygraph examination. He affirmed that he has not failed any FBI polygraph examination.

The Federal Psychophysiological Detection of Deception Examiner Handbook does not include any such term as "out of scope" to describe polygraph results. Has anyone heard of such phraseology before? What precisely is that supposed to mean? And why would the FBI polygraph unit use that term instead of the standard polygraph outcomes of "significant response," "no significant response," or "inconclusive?"

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We found you!

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That's called deception.

FACT: According to DOD policy, individuals with mental, psychological or emotional conditions should be exempted from examinations.