April 29, 2004

Omarosa and ... the ordeal of the bier! According to Jeannette Walls at MSNBC News:
The much-loathed reject from “The Apprentice” was scheduled to appear on “Jimmy Kimmel Live” last week, but refused to go on air when she saw a lie detector test backstage.

“The lie-detector test wasn’t even for her,” a spokeswoman for the show told the Scoop. “It was intended for Jimmy’s Uncle Frank [a regular character on the show], but when Omarosa saw it, she just freaked.” Some fellow contestants have accused Omarosa Manigault-Stallworth of lying when she said one of them used the N-word. “We tried and tried to calm her down, but she just kept saying ‘I’m not going on stage with that lie detector test’ then she just walked out.”

That reminds me of a lesson about relevant evidence I used back in the days when I taught Evidence. We read a 1894 Missouri State Supreme Court case, State v. Wisdom (sorry for the long block quote, but this is not otherwise available on line and it's really cool):
In the course of the examination of the witness Hill, he was asked to tell what happened down at the morgue by the dead body of Mr. Drexler, when the witness Willard and defendant were there, prior to the inquest. This was objected to as immaterial; the objection was overruled. The witness answered that "they told us to put our hands on Mr. Drexler," and that he "and Willard did so, but defendant wouldn't do it." Officer McGrath corroborated this statement. Defendant objected to McGrath's statement, but assigned no reason. The action of the court in this regard is now assigned as error. Who it was that told them to put their hands on Mr. Drexler's dead body does not appear.

The request to touch the body was evidently prompted by the old superstition of the ordeal of the bier in Europe in the Middle Ages, which taught that the body of a murdered man would bleed freshly when touched by his murderer, and hence it was resorted to as a means of ascertaining the guilt or innocence of a person suspected of a murder.

This superstition has not been confined to one nation or people. It obtained among the Germans, prior to the twelfth century, and is recorded in the Nibelungenlied, the great epic poem of that country, in the incident in which the murdered Seigfried is laid on his bier and Hagen is called on to prove his innocence by going to the corpse, but at his approach the dead chief's wounds bleed afresh. That it dominated the English mind is attested by the passage of Matthew Paris, that when Henry II. died at Chinon in 1189, his son and successor came to view his body, and as he drew near, immediately the blood flowed from the nostrils of the dead king as if his spirit was so indignant at the approach of the one who caused his death, that his blood thus protested to God. And Shakespeare voices the same superstition in Richard III., in act 1, scene 2, thus:
"O! gentlemen, see, see! dear Henry's wounds Open their congealed mouths and bleed afresh."

And so does Dr. Warren, in "Diary of a Late Physician," 3 vol., p. 327. That it was a prevalent belief in Africa and Australia, in another form, see 17 Encyclopedia Britannica, pp. 818, 819.

This superstition has come to this country with the emigration from other lands, and, although a creature of the imagination, it does to a considerable degree affect the opinions of a large class of our people.

It is true it was not shown that defendant believed that touching this body would cause any evidence of guilt to appear, or that he entertained any fear of possible consequences, but it was simply a test proposed by some bystander, and it was offered as showing the manner in which the three suspects conducted themselves when it was proposed. Clarke v. State, 78 Ala. 474; Chamberlayne's Best on Ev., page 488.

While defendant had a perfect right to decline, either because of his instinctive repugnance to the unpleasant task or because no one had a right to subject him to the test, and his refusal might not prejudice him in the minds of a rational jury, on the other hand, a consciousness of guilt might have influenced him to refuse to undergo the proposed test, however unreasonable it was and it is one of the circumstances of the case, that the jury could weigh. The jury could consider that, while it was a superstitious test, still defendant might have been more or less affected by it, as many intelligent people are by equally baseless notions as shown by their conduct and movements. It often happens that a case must be established by a number of facts, any one of which, by itself, would be of little weight, but all of which taken together would prove the issue.

So, getting back to Omarosa: even if the lie detector was not to be used on her, and, indeed, even if lie detector tests are not reliable, if she believed it was to be used on her and believed it was reliable, her running off at the sight of it is some evidence that she had lied in her accusation about the other contestant. On the other hand, it isn't very strong evidence. She may have believed lie detector tests are not reliable, especially for someone under stress (as she would be if given the test on camera), and so she could be telling the truth but rejecting the test to avoid producing evidence that would be used against her. And it is also completely sensible to flee the lie detector because it gave her the strong impression that she was going to be subjected to intrusive, disrespectful intrusions other than the interview she agreed to. Oh, and I'd like to see a lie detector test given to the spokeswoman for the show, with questions about whether they were planning to ask Omarosa once she was on stage whether she wouldn't like to take the test.

A sidenote: that case appeared in an early edition of the Green and Nesson problem method Evidence book. I harshly critiqued that edition of Green and Nesson in "The Lying Woman, The Devious Prostitute, and Other Stories from the Evidence Casebook," 88 Northwestern Law Review 914 (1994). That's not available on line, but it makes excellent reading. Having written an article with that title, I now have the rare distinction of having a resumé with the word "prostitute" on it! File that under: Things I Didn't Think About At The Time. And I have no quarrel with later editions of Green and Nesson's book, at least some of which included passages from my article.

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