In the tradition of Jonathan Swift’s 1729 A Modest Proposal for Preventing the Children of Poor People From Being a Burthen to Their Parents or Country, and for Making Them Beneficial to the Publick, I propose police officer’s hence forth be judicially required to determine whether someone should be arrested for drunk driving by determining probable cause by using a ouija board. This instrument has been shown to be reliable since its introduction by the U.S. Patent Office.[1]
It first appeared in the Pittsburg Dispatch, February 1, 1891, Second Part, Page 12. It was touted as the “wonderful talking board.” We know it as the “ouija board.” Described as a magical device that answered questions “about the past, present and future with marvelous accuracy” and promised “never-failing amusement and recreation for all the classes,” a link “between the known and unknown, the material and immaterial.” Another advertisement in a New York newspaper declared it “interesting and mysterious” and testified, “as Proven at Patent Office before it was allowed. Price, $1.50.”
An ouija board[2] (pronounced WEE-jə, and possibly derived from the French and German words for “yes”, oui and ja), is a flat board marked with the letters of the alphabet, the numbers 0-9, the words ‘yes’ ‘no’ and ‘goodbye’, and other symbols and words are sometimes also added to help personalize the board. The ouija board can be used to communicate with spirits of the dead. It uses a planchette (small heart-shaped piece of wood) or movable indicator to indicate the spirit’s message by spelling it out on the board during a séance. The fingers of the séance participants are placed on the planchette, which then moves about the board, supposedly under the invisible guidance of the spirits, to spell out words or in answer to questions presented.
Truth in advertising is hard to come by, especially in products from the 19th century, but we know the ouja board was “interesting and mysterious”; it actually had been “proven” to work at the Patent Office before its patent was allowed to proceed. When the board was brought to the US Patent Office for the first time, the chief patent officer demanded a scientific demonstration—if the board could accurately spell out his name, which was supposed to be unknown to the presenters (never mind one of the presenters was a patent attorney), he’d allow the patent application to proceed. They all sat down, communed with the spirits, and the planchette faithfully spelled out the patent officer’s name. So on February 10, 1891, a white-faced and visibly shaken patent officer awarded a patent for his new “toy or game.”
Just like HGN tests help determine if a police officer has a reasonable suspicion that a person is really driving drunk, law enforcement does not have to be bothered with the scientific principles that underlie the ouija board. No officer would have to testify about the ouija board’s past accuracy or any criticisms. It is important to note that the issue presented is not whether ouja board testing has now reached the level of acceptance in the community. Moreover, the issue presented is not whether ouja board evidence should be admissible at trial to prove guilt or a specific BAC. Rather, the issue before us is whether ouja board evidence can be considered as part of the totality of the circumstances in determining whether a law enforcement officer has reasonable suspicion to believe the person stopped has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs. Accordingly, there is a significant difference between the use of ouja board test results as circumstantial evidence of intoxication in determining reasonable suspicion or probable cause prior to trial and the use of such results to prove guilt or a specific level of intoxication at trial.
I propose that officers who testify about stops for drunk driving undergo extensive training in the operation of a ouija board; that when a ouija board is asked if the driver being tested is DUI, the Board's planchette will point at “yes or “no”; that random sampling has shown that the ouija board correctly identifies when a driver's intoxication exceeds the legal limit 60% of the time; and that the Board's arrow pointed at “yes” when asked if a driver was DUI. After all, we all know that reasonable suspicion is a very low standard and that circumstantial evidence is admissible in a hearing on a motion to suppress, therefore ouija board testimony would be allowed for this limited purpose.
[1] As inspired by HGN admission in City of Wichita v. Molitor, 46 Kan.App.2d 756, 268 P.3d 513 (Ct. App. 2013), reversed 301 Kan. 251, 341 P.3d 1275 (2015) saying that the admission of the HGN test has no more credibility than an ouija board or a magic 8-ball. See also, State v. Sewell, 768 S.E.2d 650 (2015), in which the Court held that the observation of “6 out of 6 clues” on the HGN test, along with the classic “red, glassy eyes” and a positive result on a portable breathalyzer, constituted insufficient evidence to arrest an individual on suspicion of Driving While Impaired; Steven J. Rubenzer and Scott B. Stevenson, Horizontal Gaze Nystagmus: A Review of Vision Science and Application Issues, Journal of Forensic Sciences (March 2010) (reviewing prosecution and defense claims about HGN and concluding that “[w]hile the sobriety testing literature provides circumstantial evidence of HGN’s validity when BAC is used as a criterion, the eye movement literature raises serious questions about its use as a roadside sobriety test”)
[2] For the record, this author is aware the ouija board relies relies on the ideomotor effect, which is the effect that nuanced and even subconscious thoughts have on muscle movement. The concept is that you can never really stop your muscles from moving completely, and that subconscious thoughts can influence subtle movements in said muscles, even when you think that you are remaining still. As in reflexive responses to pain, the body sometimes reacts reflexively to ideas alone without the person consciously deciding to take action.
It first appeared in the Pittsburg Dispatch, February 1, 1891, Second Part, Page 12. It was touted as the “wonderful talking board.” We know it as the “ouija board.” Described as a magical device that answered questions “about the past, present and future with marvelous accuracy” and promised “never-failing amusement and recreation for all the classes,” a link “between the known and unknown, the material and immaterial.” Another advertisement in a New York newspaper declared it “interesting and mysterious” and testified, “as Proven at Patent Office before it was allowed. Price, $1.50.”
An ouija board[2] (pronounced WEE-jə, and possibly derived from the French and German words for “yes”, oui and ja), is a flat board marked with the letters of the alphabet, the numbers 0-9, the words ‘yes’ ‘no’ and ‘goodbye’, and other symbols and words are sometimes also added to help personalize the board. The ouija board can be used to communicate with spirits of the dead. It uses a planchette (small heart-shaped piece of wood) or movable indicator to indicate the spirit’s message by spelling it out on the board during a séance. The fingers of the séance participants are placed on the planchette, which then moves about the board, supposedly under the invisible guidance of the spirits, to spell out words or in answer to questions presented.
Truth in advertising is hard to come by, especially in products from the 19th century, but we know the ouja board was “interesting and mysterious”; it actually had been “proven” to work at the Patent Office before its patent was allowed to proceed. When the board was brought to the US Patent Office for the first time, the chief patent officer demanded a scientific demonstration—if the board could accurately spell out his name, which was supposed to be unknown to the presenters (never mind one of the presenters was a patent attorney), he’d allow the patent application to proceed. They all sat down, communed with the spirits, and the planchette faithfully spelled out the patent officer’s name. So on February 10, 1891, a white-faced and visibly shaken patent officer awarded a patent for his new “toy or game.”
Just like HGN tests help determine if a police officer has a reasonable suspicion that a person is really driving drunk, law enforcement does not have to be bothered with the scientific principles that underlie the ouija board. No officer would have to testify about the ouija board’s past accuracy or any criticisms. It is important to note that the issue presented is not whether ouja board testing has now reached the level of acceptance in the community. Moreover, the issue presented is not whether ouja board evidence should be admissible at trial to prove guilt or a specific BAC. Rather, the issue before us is whether ouja board evidence can be considered as part of the totality of the circumstances in determining whether a law enforcement officer has reasonable suspicion to believe the person stopped has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs. Accordingly, there is a significant difference between the use of ouja board test results as circumstantial evidence of intoxication in determining reasonable suspicion or probable cause prior to trial and the use of such results to prove guilt or a specific level of intoxication at trial.
I propose that officers who testify about stops for drunk driving undergo extensive training in the operation of a ouija board; that when a ouija board is asked if the driver being tested is DUI, the Board's planchette will point at “yes or “no”; that random sampling has shown that the ouija board correctly identifies when a driver's intoxication exceeds the legal limit 60% of the time; and that the Board's arrow pointed at “yes” when asked if a driver was DUI. After all, we all know that reasonable suspicion is a very low standard and that circumstantial evidence is admissible in a hearing on a motion to suppress, therefore ouija board testimony would be allowed for this limited purpose.
[1] As inspired by HGN admission in City of Wichita v. Molitor, 46 Kan.App.2d 756, 268 P.3d 513 (Ct. App. 2013), reversed 301 Kan. 251, 341 P.3d 1275 (2015) saying that the admission of the HGN test has no more credibility than an ouija board or a magic 8-ball. See also, State v. Sewell, 768 S.E.2d 650 (2015), in which the Court held that the observation of “6 out of 6 clues” on the HGN test, along with the classic “red, glassy eyes” and a positive result on a portable breathalyzer, constituted insufficient evidence to arrest an individual on suspicion of Driving While Impaired; Steven J. Rubenzer and Scott B. Stevenson, Horizontal Gaze Nystagmus: A Review of Vision Science and Application Issues, Journal of Forensic Sciences (March 2010) (reviewing prosecution and defense claims about HGN and concluding that “[w]hile the sobriety testing literature provides circumstantial evidence of HGN’s validity when BAC is used as a criterion, the eye movement literature raises serious questions about its use as a roadside sobriety test”)
[2] For the record, this author is aware the ouija board relies relies on the ideomotor effect, which is the effect that nuanced and even subconscious thoughts have on muscle movement. The concept is that you can never really stop your muscles from moving completely, and that subconscious thoughts can influence subtle movements in said muscles, even when you think that you are remaining still. As in reflexive responses to pain, the body sometimes reacts reflexively to ideas alone without the person consciously deciding to take action.
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