MS. MCGINTY: Your Honor, I assume that the State rested and I just missed that part.

So the defense will call as its first witness Dr. John Furedy, F-U-R-E-D-Y. If you

want to approach the bench.

JOHN FUREDY, called as a witness at the request of the Defendant, being first duly sworn according to law, did testify as follows herein:

DIRECT EXAMINATION

Q (BY MS. MCGINTY): Good morning, Dr. Furedy.

A. Good morning. By the way, my name is pronounced Furedy. Itís taken about six

months to work that out.

Q I have pronounced it every single way.

A Furedy, Furedy.

Q I sure hope the court reporterís getting that. Could you state your name and your

business address for the record.

A John J. Furedy. Iím a professor of psychology at the University of Toronto,

Toronto, Canada.

THE COURT: And your name is spelled F-U-R-E-D-Y?

THE WITNESS: Right.

THE COURT: Thank you.

Q (BY MS. MCGINTY): And whatís your business address?

A Department of psychology, University of Toronto, M for Mary, 5S. 1A1 is the zip

code.

Q What is your educational background?

A I have a BA with double honors, first class honors, in psychology and philosophy,

an MA with first class honors in psychology, and a Ph.D. in psychology, all from

the University of Sydney.

Q All right. And Dr. Furedy--

A Furedy.

Q Iím not going to be able to do it. The judge has a pronunciation.

THE COURT: F-E-W, Furedy, with pronunciation.

Q (BY MS MCGINTY): If you could just keep your voice up. Some people may have a little bit of difficulty understanding you, especially in light that you have a slight non-American accent.

A Comes out of South Africa. Itís a mixture of Australian and Hungarian.

THE COURT: And the University of Sydney is in Australia.

THE WITNESS: Sydney, Australia.

Q (BY MS MCGINTY): What is your professional employment history?

A After I got my Ph.D., I went to Indian University for two years on a full bite as a

visiting faculty member, and in 1967 I went to the University of Toronto as an

assistant professor where Iíve been since then and I became a full professor in

1975.

Q Have you published articles in the field of psychophysiology?

A Yes.

Q And do you know how many roughly?

A Roughly about 150 in referee journals.

Q Iím sorry?

A Referee journals. A referee journal is a journal where a manuscript is sent in by an

author and it gets sent out by the editor to at least two referees whoís a peer

author in the field, peer review, and depending on their advice, the editor either

accepts or rejects the paper. So a paper that is published has gone through that

peer review process.

Q Have you also published articles--

A And I have other articles, chapters in books, book and so on., about 150 of those

in psychophysiology.

Q All right. That was my next question. Have you written any textbooks in

psychophysiology or contributed to textbooks?

A Well, Iíve contributed to about ten textbooks in psychophysiology, that is

contributed chapters, and Iíve also written a book with professor Gershon Ben-

Shakhar, the Hebrew University of Jerusalem, and this is on the detection of

deception.

Q That was my --

A Polygraph.

Q Iím sorry, the detection?

A The detection of deception or the polygraph from a psychophysiological

perspective.

Q Of the 150, approximately 150 articles youíve published in referee journals, how

many of those related to the polygraph?

A Oh, in referee journals, only about -- only about a dozen, I would say. Not very

many because I took up investigating the polygraph only after 1980, and most of

my work has been conceptual rather than empirical. Most referee journal articles

are empirical or experimental psychophysiology papers.

Q How did you become interested in the polygraph or involved in writing and

researching about the polygraph?

A Well, I started doing psychophysiological research in 1963, and had my first paper

published in 1965. And from 1967 to about 1980 I was publishing many papers in

psychophysiology. Maybe I should say what psychophysiology is. I think maybe --

Q That was one of my questions but I can ask it now, Dr. --

A Why donít I just define it for you. Psychology is the discipline that deals with

psychological processes, and the psychological processes are typically started by

behavioral measures, questionnaire measures and so on. Psychophysiology is a

special branch of psychology which uses physiological measures to study

psychological processes. These are slight changes in physiological function like

heart rate, skin resistance change, GSR and so on.

Q Whatís GSR?

A GSR is galvanic skin response. Itís one of the channels used in the polygraph, the

skin resistance change, and so psychophysiology uses these slight changes in

physiological function to study psychological processes.

Q And could you elaborate on that.

A Well, for example, if you want to measure how anxious somebody is about something, you could ask them questionnaire. You could even observe their

behavior to see if theyíre fidgeting around a lot. Thatís behavior. But itís more

useful to measure, for example, their heart rate and see if their heart rate is

relatively high. The third case you would be doing psychophysiology and you

would studying the psychological process of anxiety.

Q And why would you measure their heart rate rather than ask them or look at their

face?

A Because people can control their behavior, even their facial expressions, to a

certain extent, and they can certainly control when they ask you -- when youíre

asked how anxious you feel, they can control what sort of answer they can give.

They cannot control slight changes in heart rate, so this gives you potentially at

least a better measure of the psychological process.

Q Is psychophysiology, is it primarily an academic or a practical field?

A No. Itís primarily an academic field. Itís a discipline, like psychology is

primarily an academic field, and what psychophysiologists do most of the time is

conduct experiments where they manipulate variables. For example, typically

they will look at a contrast between an experimental and a control condition. For

example, again take the anxiety case. If you wanted to study where being involved

in a complex cognitive task which you canít solve, say a bad computer program,

you are faced with bad computer programs in this life and youíre supposed to

operate a bank teller machine and the instructions say anyone except an idiot will

understand this and you start trying to do it and you canít do it, you get very

frustrated. So a psychophysiologist may ask, does this sort of computer phobia,

computer fear, increase anxiety?

Now what would you do in a psychophysiologist experiment is experiment

computer group give these with the bad instructions and the control group would

also be given the same task to use the same amount of instructions but the

instructions more clear. So the only difference between the experimental and the

control group is the clarity of the instructions, and what youíre asking is do

unclear instructions result in an increase in anxiety. Supposing you find out that the

heart rate of people who are given the unclear instructions is higher than the heart

rate of people who are given clear instructions, thatís an instance of experimental

psychophysiology, where the only difference between the experimental and the

control condition is clarity of instruction.

Q Okay.

A And so then you can interpret that heart rate increases as being due to clarity of

instruction, and thatís the sort of experiments, to keep it simple, that experimental

psychophysiologists do.

Q How is it that you became interested in the polygraph?

A Well, the polygraph is the most salient purported application of psychophysiology,

because the claim of the polygraph is that it can detect the difference between

telling the truth and telling a lie. This is a pretty difficult thing to do, but that is the

claim, and of course itís the most salient application because if that were true, this

psychophysiology would be an extremely useful scientific field.

As a psycho -- as a professor specializing in psychophysiology, I had been

publishing since Ď65 and teaching since 1970 a third year course called current

methods in psychophysiology.

Q Common?

A Current, C-U-R-R-E-N-T, and introduction to psychophysiology to third year

undergraduates and of course as part of the discussion, I would cover the

polygraph. However, up to 1980, I accepted the polygraph statements that this

indeed was a test, like an IQ test is a test, that the difference between relevant and

so-called control questions was like the difference between experimental and

control, that is that the only difference between the relevant or experimental

questions and the control question was deception, cuz thatís what the polygraph

purports to uncover, just like in the other case I said in the hypothetical case, I

said that anxiety was what -- clarity of instructions is what is supposed to be

uncovered, and also since the polygraphers said that they employed numerical

scoring methods, I assumed that the scoring of the procedure was normal

psychophysiological quantitative objective scoring.

For example, I work a lot -- well, in the case of heart rate again, when one would

report that clarity experiment, one would report that say --

Q The computer experiment?

A Yeah, the computer experiment.

Q The clarity of instructions?

A One would say the experimental groupís average heart rate was 4.5 beats per

minute higher than the control groupís average heart rate, so you could also give

both heart rates. So the numbers stand for objective specification. So like most

psychophysiologists, I simply accepted this account of the polygraph. I knew it

was controversial, but I assumed it was scientifically based because of these terms

which I accepted.

However, in around 1980, I had been involved in a number of committee

controversies or arguments in the field of psychophysiology, other things about

conditioning and so on and anxiety. So I was fairly well known by that stage as

having -- being familiar with controversies, experiments. And in 1980 -- is it

possible to turn to this C.V.?

Q Sure.

A If you look on page 25, the third item -- exhibit 27 is marked for identification.

Q (BY MS. MCGINTY): Dr. Furedy, thank you, judge, what are you referring to?

A Yeah. Iím referring to my curriculum vitae and Iím referring to page 25, the first --

the third item called lie detection and psychophysiological differentiation.

MS. MCGINTY: I would move to admit this for the limited purpose of letting the judge

read along with the expert.

MR. LANG: I have no objection to that.

THE COURT: 27 is admitted for purposes of this hearing.

THE WITNESS: So around 1980, the editors of that book psychophysiological systems,

processes and applications as a handbook, wanted to have someone write a

chapter on the polygraph, and at the time in the society for psychophysiological

research, which is the main society in the world for psychophysiology, there were

two prominent psychophysiologists who were very strong opponent and proponent

of the polygraph. The opponent of polygraph was David Lykken, L-Y-K-K-E-N,

and the proponent was David Raskin, R-A-S-K-I-N, and I had had professional

dealings with them on other psychophysiological issues before.

The authors thought neither of them could be sort of trusted to give an unbiased

account because they were suing each other in the courts. And so since I was

familiar or I was interested in controversies in general, they ask me to do a

chapter on the polygraph as an application of psychophysiology, and it was in the

course of that that I started off -- when I started my chapter off, my position was

somewhere between Lykken and Raskin because I understood it was controversial

procedure but thought it was scientifically based, but as soon as I looked into the

polygraph, what actually went on in the North American polygraph, I recognized

that it wasnít scientifically based, that terms like experimental control, test,

quantitative scoring, were completely wrongly used.

Q (BY MS. MCGINTY): Let me just ask you what kinds of preparation did you do to be

able to write about the polygraph, to reach an opinion?

A Oh, I just read the -- I read some polygraphing text, but mainly I read accounts of

the polygraph in the scientific journals. Of course the first thing I went to was

Lykken and Raskinís interchanges, which were already available then.

Q Is that -- is that -- could you describe that your methods of learning about the

polygraph by reading the academic work available, was that recognized, a

recognized method of reaching a professional opinion in the academic field?

A Oh, yeah. This is what I meant by conceptual papers. Thereís basically two sorts of

contributions that an academic makes in a publication. One is empirical, where you

run experiments, at least in psychology anyway, in psychophysiology, you run

experiments and you report the results, and the other is conceptual, where you

analyze the methodology and the underlying theory and so on of the polygraph,

and that first chapter, that 86th chapter, was the first of a number of conceptual

pieces of Lykken.

Q Is there a feeling in your field that one is better than the other, that conceptual or

empirical?

A No. Theyíre just different and they compliment each other. It turns out that doing

experimental work on the polygraph, North American polygraph, is at least in my

view practically impossible because itís like asking to do experimental work on tea

leaf reading. The procedure was so unstandardized, so unspecified, itís not really

possible to arrive at sound experimental conclusions.

Q Let me back you up, if you donít mind, because I think I interrupted your previous

answer.

A Well, except let me just add one thing to that. You can study the psychological

process of deception, and I have --

MR. LANG: Excuse me, your Honor, Iíll object to this as nonresponsive.

THE COURT: You may ask a question.

MS. MCGINTY: Let me ask you a question.

THE WITNESS: Sorry, sorry --

Q (BY MS. MCGINTY): I just wanted to -- for those of us who havenít spent the last 30

years as psychophysiologists, doctor, you said that in your research you looked at

the terms controls and things like that. Is that term control, is that a scientific

term?

A Yes.

Q What does it typically mean? Let me rephrase that question. What does it mean in

a scientific concept?

A In a scientific, and also in an applied concept, context, where you think youíre

dealing with applications based on science, it means that the only difference

between a control and the experimental condition is whatever it is that youíre

interested in. So in the clarity of computer instructions, which I gave you, the only

difference between the experimental and the control condition was the clarity of

instructions. Otherwise both groups got the same computer programs and so on,

so the same length, same computer. So thatís what experimental control means,

and normally, except for this purported application, you donít have to look

further. I mean everyone understands what control means.

Q When you looked to the polygraph, what did you find that control meant?

A Well, one of the first things I found there is, as I said, I started off with the

argument between Lykken and Raskin and I found to my astonishment that

Raskin concedes that in the polygraphic case, control is not meant in the, quote,

normal scientific sense of the term.

Q What does control mean in the polygraphic sense?

A Well, itís difficult to define, but what itís supposed to -- the way they talk about

it is that the control question has the same emotional impact than the relevant

question, the relevant or experimental question.

Q It has --

A The same emotional impact, that somehow the polygraph examination examiner is

able to, during the pretest interview, to generate the same emotional impact in the

control question and the experimental -- and the relevant one.

Q And how does that differ from the scientific use of controls?

A Well, in the scientific use, everything is equal between control and experimental

except what youíre studying. So translating this into relevant, control, everything

should be equal between the two sorts of questions except what the polygraph

purports to study, that is deception. In fact, the relevant and control questions vary

along a number, almost an infinite number, of dimensions and not deception at all.

So thatís the difference. Itís not -- thatís why even Raskin says that control is not

control in the normal sense of that term.

Q And you said that control questions vary along for a number of reasons or a

number of --

A Well, on of the most obvious variations, which is not necessarily the same as

deception, is that the relevant questions are about the crime of which this is in a

criminal investigation, of which is the suspect is accused, whereas the control

questions, start with control questions, are not about the crime, and so in terms of

emotional impact right there, there may well be a big difference between crime-

related questions and so-called control questions.

The idea -- the idea -- the counter-idea then is that by some magical procedure the

polygrapher doing the interview is somehow able to equate the emotional impact

of the so-called control question with the relevant question. But even if theyíre

right, even if the polygrapher can perform this magic, this is not a scientific

specification. It may be that some polygraphers can do it with some examinees and

others canít.

Q Let me ask you, is the polygraph -- did you find in your research that the polygraph is a test?

A No. That was the other thing which I took for granted, that is was a test, since

everyone calls it a test. But as soon as I looked at what is actually involved, it

became clear that the term test is inappropriate, and itís inappropriate in term of

elementary psychological principles of testing.

Q And could you describe what are the elementary psychological principles of

testing.

Q The elementary psychological principles for a test is that it be objective, that it be

specified, that it have a duration which is relatively constant. I donít mean it has

to be, you know, 45.2 minutes long, but itís reasonable constant, and that the

items in the test are constant over subjects, and not to be generated in the course

of the so-called testing procedure. I think to make things concrete, let me take an

example which we are all familiar with. Itís IQ test, intelligence tests. Now IQ

tests are very controversial, as we know. But thereís little question that they are

genuine tests. They may not be valid, but they are genuine tests. The number of

items in the IQ test is constant; the approximate duration is constant. There are

norms for IQ tests. That is we know -- let me back up.

Essentially what is the case of IQ test is provided you have a competent operator,

I mean somebody who has learned how to administer an IQ test, which doesnít

take very much time, the result of an IQ test from one tester to the next tester is

approximately the same, because itís a standardized procedure. Now, in contrast,

the polygraph examination is a procedure where the questions are made up in

consultation with a client during a dynamic interview situation, and in particular

the control questions, so-called control questions, are made up completely as a

result of the interview with the client.

Essentially what -- let me -- I think if I put down now whatís essentially involved

in a polygraph, it may be helpful.

Q Feel free to use the easel.

A Essentially the --

THE COURT: Letís just move this around a little bit.

MS. MCGINTY: I think your voice is louder apart from the microphone.

THE WITNESS: Well, because I know I donít have a microphone. Well, whatever you

think. Essentially there are other sorts of questions, but essentially the critical

thing when youíre going for a polygraph is the way that you react to relevant

questions, so-called relevant questions and so-called control. Iím going to put control inverted commas once, but just understand these are not the control and

these are the control questions, and essentially the psychophysiological principle

is that the bigger the emotional impact of a stimulus, the bigger the significance

of the stimulus, the bigger the response, the bigger the change in blood pressure,

the bigger the change in skin resistance and so on.

If -- if the response to the control questions are clearly smaller than the response to

the relevant questions, and in this case the typical cutoff point is this minus six, so

if the response to control questions are clearly smaller than the response to the

relevant questions, then the polygrapher, the examiner, decides that you are

deceptive. If the response to the control question is clearly greater than the

response to the relevant questions, then youíre considered to be truthful with

respect to the issue, or non-deceptive, and if the difference between the relevant

and the control questions responses is not very clear, then the classification is

inconclusive.

Q Thank you. Do you need more paper?

A No. I think I can go back to the --

Q Does the -- what are norms? You said that a test would normally -- excuse me--.

You said that a test has norms. What does that mean? Is that short for something,

the word norms?

A Yes. go back to the IQ test. Supposing youíve constructed an IQ test of 40 items,

and you test a thousand people at random, so they represent the population of 20

to 30 year olds, say, 20- to 30-year-old populations, and you find that 50 percent

of your population scores 20 or better on that test, then you can assign, at least

roughly speaking, if it is a genuine IQ test, you can say that a score of 20

represents approximately 100 points of IQ, which is the average IQ.

You might find that one percent of your population scores 29 out of 30, and then

you might -- then you probably say that that represents IQ point of about 160.

What youíre doing is normalizing according to the Bell curve. The Bell curve,

the normal distribution, is assumed to underlie al individual differences and sound

assumption, that it underlies all individual differences. Without that sort of

norming, you donít know what a score of 20 in your -- 20 out of 30 in your items

is.

In the same way, I mean this can apply to physical things too. If I tell you that

somebody is able to broad jump 35 feet --

Q Broad jump?

A Broad jump 35 feet, that only is meaningful to you if you know the distribution

of distances of broad jump, and what youíre really doing there informally is

norming. Now, can I go on to the --

MR. LANG: Objection.

Q (BY MS. MCGINTY): Let me just ask you.

THE WITNESS: Iím sorry.

THE COURT: Proceed.

Q (BY MS. MCGINTY): Does the polygraph have -- are there norms for the polygraph?

A No. There are no norms for the polygraph. And the main reason for that is that

the polygraph examination varies from operator to operator and varies as the

function of the operator and the subject.

Q When you say it varies as a function between the operator and the subject, what

do you mean by that?

A Well, this is a function of the rapport between the subject and the examiner. You

see, the polygraph, although itís called a test, itís really an interview. Itís

actually an interrogatory interview, but it is certainly a dynamic interview, and

interviews by definition canít be standardized. So although Iíve put up on the

board these R and C type items and that looks as if one R in a relevant item is

like an IQ item, that itís relatively constant from subject to subject, that is simply

not the case.

Even if the question is identical, say did you kill "X", the psychological impact of

that question is going to vary not only with the tone of voice that that question is

asked but also with the rapport between the examiner and the examinee. So there

are no norms for the polygraph, and in fact, the quantitative scores and the cut-off

points are completely arbitrary.

Q And how does that vary from other psychophysiological testing, the quantitative

scores and cut-off points?

A Well, for example, if you generally --

MR. LANG: Excuse me, your Honor. Although Iíve been patient, I feel Iím compelled to

object on relevance grounds regarding any of this regarding the polygraph.

THE COURT: All right. Thank you. The objection is noted but will be overruled.

MR. LANG: Thank you.

Q (BY MS. MCGINTY): Do you recall the question?

A Yes. From another -- well, for example, supposing Iím going to -- Iíll take a

psychophysiological test and a hypothetical one. Supposing you developed a

psychophysiological test of anxiety based on reactivity to certain -- well, letís say

you want to develop a psychophsysiological test of phobia of snakes, okay, based

on reactivity to snakes, the reactivity to snakes is going to be measured in terms of

degree to which your heart accelerates when you see a snake. Okay. So if you

found that, as you were developing this test, and you found that first of all, of

course, that the vision of a snake would produce some heart rate acceleration

which is specified in beats per minute, say itís two, and then you found people who

report that theyíre phobic about snakes, these would accelerate their heart rate

more, say four, if you wanted to use this as a test, and you wanted to state whether

a particular individual is very phobic, if you simply determine that particular

individual accelerated say five in heart rate, that wouldnít mean anything to you

until youíve given your snake test, a snake phobia test to a thousand people in

the population and established that say an acceleration of six or more is only

obtained in one percent of the population.

So the requirement for norming, minimal requirement, is that your measurement

be objective, that is in heart rate beats per minute, but secondly, more importantly,

the snake picture presentation should be standardized so that one operator

presenting the snake picture would have essentially the same effect as another

operator presenting the snake picture.

Q And how does the scoring that you described in beats per minute compare to the

scoring in the polygraph?

A Well, the beats per minute is objective. The scoring of a polygraph is actually

subjective. What happens is that the examiner makes a number of subjective

comparisons between control, so-called control and relevant questions, and if

relevant-control difference is what he says is slight, then he assigns a number one.

If the relevant-control difference is clear, then he assigns a number two. And if

the relevant-control difference is marked in his opinion, then he assigns a number

three. Now, slight, clear and marked are all subjective qualitative terms.

Then the way that the actual decisionís arrived at is that if the relevant is greater

than the control, the algebraic is negative. If the control is greater than the negative, then the algebraic is positive. The cut-off point is six.

Q Is it always six?

A Sometimes itís five, but whether itís six or five, itís arbitrary, all right. So if --

if the result is minus six or more, then the decision is made to classify as

deceptive. If itís plus six or more, then a decision is made to classify as truthful.

The point is itís arbitrary because, just like I said to you, that a five beat per

minute heart rate increase by itself is uninformative, because you donít know what

percent of the population reaches that level.

Here this is uninformative because itís arbitrary. Itís not based on objective

specification. But more importantly, it wouldnít be possible to carry out the

norming because one polygraph procedure is quite different from another. Even

the same question, as I said, so-called control or relevant question, may have a

different impact.

Q What -- let me ask you. Is it possible to physiologically measure anxiety?

A Anxiety?

Q Yes.

A Itís possible to do it provided you perform an experiment where all other

reasons for the difference between experimental and control condition are ruled

out.

Q Is there a specific physiological response unique to lying?

A The answer is no. In principle there could be, but it would be very unlikely, but

thereís certainly been no even slightly supportive evidence to suggest that thereís

a unique physiological response to lying, and thereís good psychophysiological

reasons for this. Psychophysiologists, experimental psychophysiologists, have a

hard time differentiating such crude differences between the differences of anger

and fear, so it would be very unlikely that youíd be able to differentiate between

lying and telling the truth.

Q What does the polygraph measure? Does it measure deception?

A The polygraph measures the impact or significance of the stimuli. What lies behind

the impact or significance is anybodyís guess, because thereís such a lot of

variables, but one of the very likely factors is anxiety about the question and the

fundamental problem with the polygraph, at least in this form, is that whenever

you get an R greater than, clearly greater than C result, thereís no grounds for

indicating that this is due to deception rather than differential concern or anxiety

about the questions.

Q And is the stimuli, the stimuli, is that the question?

A By stimulus, I mean question, yeah.

Q So the polygraph measures the physiological response to a question?

A To a stimulus, yeah. I mean stimuli, physical stimuli, like if I were to change or to

darken or lighten this room, we will all give a physiological response, a slight

increase in heart rate or certainly decrease in skin resistance, the GSR, so all

stimuli elicit physiological responses.

Q Does the polygraph purport to be a lie detector?

A Oh, yes.

Q And does it detect lies?

A Not on a scientific basis. Perhaps certain operators are able to detect lies in terms

of what they do, perhaps certain tea leaf readers are able to predict the future.

Q What is the purpose of the polygraph?

A Well, the stated purpose, that is what people agreed to when they agreed to take

a polygraph test so called, is to detect deception, analogous to an IQ test

detecting the level of IQ.

Q Is there any other purpose?

A But the other purpose, and this is included in polygraphic textbooks, is

interrogation or specifically to elicit a confession.

Q I want to stick with deception detection for a minute.

A Right.

Q You stated, I believe, that youíre -- that youíre a professor of psychology and that

your specialty is psychophysiology?

A Yes.

Q Are you aware of any data put out by the American Psychiatric Association about

the validity of comparing control and relevant questions to detect deception?

A No, Iím not, and I would be quite surprised if they engaged in that field, because

the field of psychiatry deals with mental illness and is differentiated from clinical

psychology in that the psychiatrists are able to prescribe drugs, but otherwise,

psychiatry is not -- does not specialize, certain it doesnít specialize in

psychological testing, which psychology, thatís part of psychology, and clearly

itís not -- theyíre not expert in psychophysiology.

Q To you knowledge, does the American Psychiatric Association have anything to

do with the polygraph?

A To my knowledge, no. American Psychological Association has made statements

about it, but Iím not aware -- but even if they had, it wouldnít -- as I said, I

wouldnít consider it terribly relevant.

Q Do you know what the statements of the American Psychological Association

are?

A Yes. In 1987 they persuaded the senate of the United States to outlaw the

industrial use of the polygraph, but they do, at least implicitly, accept the

specific issue used, such as in criminal cases, as a controversial but scientifically

based test.

Q Now --

A Can I add something to that?

Q Yes, please. Let me ask.

A I consider that position --

MR. LANG: Your Honor, excuse me. Iíll object to any editorializing as nonresponsive.

THE COURT: Itís just adding to the question.

THE WITNESS: I understand. As I said before, I would have taken that position as a

psychophysiologist before 1980. I now consider that position to be wrong, the

American Psychological Associationís position.

Q (BY MS. MCGINTY): Assuming a polygrapher is using the control-relevant test.

A Examination, I prefer.

Q Whatís that called?

A Oh, itís called the control question technique or control question test, CQT

essentially. There are variants of it, of course.

Q What would that polygrapher be attempting to accomplish by using the CQT?

A Well, initially polygraphers are just asked the relevant questions and then

irrelevant questions. That was up to about 30 years ago, but it became apparent,

as Lykken says in his 1981 book, even to them, which is a little impolite, that

thereís a real problem because irrelevant questions, like is your name Furedy,

even if itís mispronounced, is unlikely to elicit as much emotional impact as the relevant question, you know, did you steal the money, and so polygraphers, about

20 or 30 years ago, moved to this so-called control question, questions, which

were designed to bring up or, as they say, equate the emotional impact in the

innocent to the relevant questions.

Q If theyíre going -- whatís the purpose in trying to equate the emotional impact

of the control question to the relevant question?

A Well, let me just do it on the board. Iíll start polygraph, if you get bigger responses

to the relevant question than to the irrelevant question, then used to be classified

as deceptive, and even people not familiar with basic principles, it didnít sound

right, if you had a question, did you kill "X" here and a question, is your name

Furedy, then it didnít take much common sense to say, well, assuming the personís

innocent, assuming the person didnít kill "X", nevertheless, heís going to give

much bigger responses to this question than to that question. So the idea of

the so-called control question is to bring up the emotional impact of

the comparison question.

Q Okay. And so does that -- you can go ahead and sit down. So does the control

question, assuming that youíre a polygrapher or that youíre Dr. Raskin, and you

use the polygraph, is it important that the control question arouse a significant

amount of emotional response?

A Oh, yes. I mean the whole -- the whole rationale, I mean the notion that you can bring it up exactly equal is an unscientific and peculiar notion, but certainly if it

turns out that the so-called control question doesnít have very much impact,

then even in polygraphic terms, the procedureís not going to do an adequate job

of detection, because then an innocent person, essentially the so-called control

question is going to be like an irrelevant question

I mean the idea is that you want to -- youíre trying to differentiate innocent from

guilty people or, if you like, in their terminology, deceptive from truthful people.

If you have a comparison where on e question, the relevant questions have

obviously great impact, because theyíre related to a serious crime, and you have

comparison questions which you obviously donít have any sort of impact, then

youíre not going to be able to interpret an R greater than C result, no matter how

big a number you get, negative 20 or so on, in terms of guilt or deceptiveness,

because it could readily be explained in terms of the relative impacts of the

questions.

So let me just -- in polygraphic terms, a successful so-called control question is

something which has a great degree of seriousness to that particular examinee,

and thatís why in the pretest interview, a careful polygrapher would really talk to

the examinee to find out what actually bothered them most, which is unrelated to

the crime. It might be stealing $10 in the church, from the church plate when you

were ten years old or some other sort of shameful experience.

Even then of course I would say that the relevant-control comparison is not a

valid one, but at least thereís some surface validity that this so-called control

question in that particular examinee would have some emotional impact.

Q Well, why is the -- assuming a carefully crafted control question or a well-designed

control question, why is the relevant-control comparison not valid?

A Well, because even if you carefully crafted it -- take a hypothetical example of me.

Supposing I took -- supposing I took an examination, polygraph examination, and

the polygrapher found out that what really bothered me was that Australia, where

I grew up, when I was 12 years old, I stole $10 from the collection plate; this is a

hypothetical example, by the way, because in those days Australia had pounds,

not dollars, so supposing that was the control question, that might be -- that might

have some impact, but it still would vary along the number, the most definite

number of dimensions, from the question which I was asked, you know, did you

steal $10,000. Thatís the relevant question. So it wouldnít be a proper control

question. Thatís why I keep on saying so-called control. And in fact it could well

be that another polygrapher, who is even more skillful at being dynamic at

interviewing of my past, would pull out of me that that didnít bother me all that

much because after all, I just considered I was really distributing wealth and the

church was too wealthy anyway. What really bothered me was that when I was 9

years old, I stole $10 from my fatherís wallet, as his coat was hanging on the chair.

So maybe that would have created even more impact. We donít know. So you see,

the control question is completely dependent on the examiner-examinee rapport,

and the ability to get into the psychic economy of the examinee.

Q What is psychic economy?

A You know, the psychological -- the inner motivations, inner feelings. I mean, for

instance, in that example, we donít know, hypothetical example, we donít know

whether stealing money from a church, church plate, for me was more serious than

stealing money from my father, cuz everybody differs along those lines. So this is

varied, but at least I would say that that sort of so-called control question would

be the sign that the polygrapher was taking the job of using the polygraph as a

detection instrument seriously , cuz thereís a really genuine attempt to try to get

a comparison, so-called control question which has some significant emotional

impact.

Q Assuming that the --

A Can I give you a further example? A more careless hypothetical polygrapher might

sit me down and say, did you -- and Iíve seen these questions -- did you do

anything you were ashamed of before the age of 20? And the agreement would be

that Iíd say no to that. Of course that would be a lie to say, but the impact of that

question, did you do anything you were ashamed of before the age of 20, at least

on the face of it, is not very great. So I would consider that to be, even in

polygraphic terms, not to be a very serious attempt to generate some emotional

impact in the so-called control question.

Q And why wouldnít you have emotional impact to that question?

A Well, because everyoneís done something they were ashamed of before the age of

20. So that questionís not very impactful. I mean taking -- assuming that I did take

the money from the collection plate at church, and assuming that I really feel badly

about that, has considerable emotional impact.

Q And is there any problem with the skilled polygrapher comparing your response to

the well-designed control question to the -- if I could -- Dr. Furedy, the problem is

when we both talk, itís very difficult for the court reporter.

A Sorry.

Q So Iím going to try and ask that question all the way.

A Right.

Q Is there any problem with attempting to compare your response to the

well-designed question to your response to the relevant question?

A Yes. The problem is that it is not a proper scientific of meaningful comparison

because the difference between the relevant and so-called control question is not

a single deceptiveness difference as it was in the experimental control case, in the

example I gave you.

Q You mean about the snakes?

A Yes.

Q Okay.

A But thereís a whole slew of differences. If you take the church plate, one of the

differences is that if I am a criminal suspect, that the consequences of the answer

to the relevant question are much more serious than the consequences to the

control question, even if I feel badly about it, but there are other differences too.

It may be that the relevant question is more complicated, may involve a more

complicated issue.

Supposing thereís $10,000 missing, and Iím a trustee officer whoís had something

to do with the $10,000, and supposing I havenít stolen it, but I have some

responsibility because I was -- it was placed in my trust and supposing I was

careless, so the issue of whether -- the issue about that money is a more

complicated issue, because thereís some degree -- assuming Iím innocent, thereís

still some degree of moral guilt involved, whereas the question about me stealing

the money from the collection plate in church is a clear case, because I either stole

the money or I didnít.

Q I will ask you about moral guilt after our 15-recess, doctor.

THE COURT: Weíll take the morning recess at this time for 15 minutes.

(Brief recess taken.)

THE COURT: All right. Weíre ready to proceed.

Q (BY MS. MCGINTY): Preliminarily, Dr. Furedy.

A Very good.

Q Thank you. We were talking about comparing control to relevant questions at the

break. What is emotional heightening and does that play a role in psychological --

psychophysiological testing or in the polygraph?

A Well, the basic psychophysiological principle is that the greater the significance,

psychological significance, of a stimulus, the bigger the response. If a stimulus has

an increased amount of emotion associated with it, then that increase is the

significance of the stimulus, and so youíd expect the bigger response to it.

So to give you an example, if you have some -- if you have a scene of a mountain,

which is projected as a stimulus, the subject, that will give a certain response, a

certain level of responding, because itís a stimulus, but if in the past history of the

subject that mountain is associated with mother falling off the mountain or some

serious problems with respect to mountains, then the emotional impact of the

stimulus is increased and the subject will give a bigger response. Same thing with

the question.

Q When emotion gets high, so when emotion is heightened, how is cognition affected?

A Well, whenever thereís increase of emotion over a certain level, cognitive

performance suffers, so cognition suffers, that is your ability to discriminate

between true and false statements and things like that deteriorates whenever

thereís emotional heightening.

Q And is that significant at all or does that have any bearing on either psychophysiology or the polygraph?

A Well, that second -- that has more of a bearing to the post-test interview, when

you are in fact involved in cognitive performance in determining whether to agree

or disagree with certain propositions. It doesnít have as much to do with what we

are talking about, that is the detection. In the detection case, itís simply how much

emotion is associated with the issue or question.

Q Let me stick to --

A Let me do the question. Can I elaborate on the question?

Q Certainly. Please answer.

A Instead of talking about mountains, letís talk a concrete hypothetical case. Supposing I become a suspect of stealing $10,000, when the police first knock

at my door and ask me, have you stolen $10,000, that of course will elicit some

emotion, because, you know, itís a nasty thing to say to me; Iím assuming Iím

innocent, but if after that, two weeks later, thereís been continuous investigation

of me as a suspect and so on, if that same question is asked, perhaps even in the

same tone, so itís an identical question from the point of you the questioner,

nevertheless the emotional impact associated with that question will be greater

because thereís been two weeks of history, of being suspected of this crime. So

thatís what I mean by increased emotional impact. So the same physical question

formulated in the same way and even asked in the same tone of voice would have

an increased emotional impact and therefore the expectation would be that a bigger

response would be elicited by that question after two weeks of this history of being

a suspect.

Q And does that have any bearing on the polygraph?

A Yes, because then in the polygraphic, supposing then after two weeks of this I

agree to volunteer, agree so-called voluntarily to take a polygraph test, then if

that question is asked again, now it has the emotional impact not only of the

past history of two weeks but also the whole uncertainty regarding the polygraph

so-called test, which apparently is going to decide my fate. Then if supposing one

polygraph is given and at the end of that polygraphic session, I get a score of

inconclusive, ah, it doesnít differ very from C, and a post-test interview is

conducted where Iím asked to explain this result, in the course of that I make

admission which is interpreted by the polygrapher and the police that I was

guilty, if they then give me a second polygraph the next day, then the R question,

relevant question, even if itís asked in exactly the same tone and formulated in

exactly the same way, would have an even greater impact, would be expected to

give an even bigger response because now I not only have initially being suspect,

two weeks of being a suspect, but also having admitted, at least in some sense,

that Iím guilty.

Q Whatís moral guilt?

A The distinction between moral guilt and criminal guilt is again -- let me use the

$10,000 illustration. If Iím accused of stealing $10,000 in a situation where I was

supposed to look after this money, and I didnít look after it very well, but I did not

steal it, then I would feel morally guilty, even though I wasnít criminally guilty,

if the charge was not negligence but stealing.

Q Would you have any physiological response if you were hooked up to a machine

and asked about stealing the $10,000?

MR. LANG: Your Honor, Iíll object on foundational grounds to this.

THE COURT: Well, Iíll allow.

THE WITNESS: Well, you have a physiological response to anything, any stimulus.

The question, did you steal -- assuming Iím innocent criminally, I would give a

bigger response to that question to the extent that I felt morally guilty about it.

Q (BY MS. MCGINTY): Is it possible to -- first of all, how many physiological

charts have you evaluated in your career?

A Oh, physiological, I donít know, 10,000. Iím an experimental psychophysiological.

Those charts are what I deal with.

Q Is it possible, in the case of a polygraph, to factor out moral guilt when youíre

looking at results?

A No, itís not. Itís not possible because itís not a standardized procedure, but even

if there were, thereís no psychophysiological evidence, scientific evidence, to

indicate that one can differentiate between moral and criminal guilt. Thatís a very

subtle differentiation, just like even differentiating between anger and fear, as Iíve

said before, itís quite difficult even if you do very tightly controlled experiments.

Q Would you say that the distinction between anger and fear is subtle?

A No. I think the distinction between anger and fear is much less subtle than the

distinction between moral and criminal guilt.

Q Can you look at the polygraph charts and factor out anything? Can you factor out

fatigue, for example?

A No. I mean no, you canít. And the reason again is that it is not a specifiable test.

Those R and C, which Iíve put up there, look as if theyíre constant, but in fact we

donít know what procedures, what factors are playing a role in any of those three

results, the R greater than C, R approximately equal to C and R less than C. So

therefore asking questions about, you know, what is the effect of fear or alcohol or

-- was it fear, I think?

Q Fatigue?

A Iím sorry, fatigue or alcohol and so on. There are intelligent questions to ask say

of performance on an IQ test, intelligence test, because the intelligence test is a

specifiable procedure, but theyíre not intelligent, theyíre not answerable questions

with respect to this procedure.

Q Do the questions -- do the questions of a subject relating to those factors, do they

help reduce error?

MR. LANG: Iíll object on foundational grounds.

MS. MCGINTY: I think --

THE COURT: Iíll overrule the objection.

THE WITNESS: You mean if the subject comes out with a particular result, say R

similar to C?

Q (MS. MCGINTY): Let me be more specific. Prior to taking the polygraph, the

subject is asked, are you tired, have you used drugs, things like that?

A No, no. And the interesting thing about that is that if you ask a polygrapher to

specify under what conditions he would not administer a polygraph, he canít

state the general conditions because the polygraph really is being used like a

magic that is applicable no matter what conditions prevail. We have -- I have

argued in a book and articles that really the purpose of all those -- of most of

those questions in the pretest interview is to establish the professional credibility

of the examiner in the examineeís eye.

See, for most laymen, only doctors ask questions about blood pressure and so on,

you know. And so thatís the purpose of it, and I think the evidence for that

assertion is that I have certainly never come across a case where a polygraphersís

stopped examination in terms of the answers to questions. But more importantly,

if you ask a polygrapher, what sort of answers would -- what are the conditions

under which you do not administer a polygraph, he cannot tell you. Thatís the

difference between a scientifically based profession and one which is not based on

science. I mean a doctor can tell you under what conditions he will not administer

penicillin, under what conditions penicillin will not work, if thereís been too much

penicillin or if the person has negative reaction to penicillin and so on. Those sorts

of questions are unanswerable with respect to a polygraph.

Q Did you -- let me back you up to something you stated earlier. Is it standard in the

field of empirical psychophysiology to ask a subject to explain test results; for

example, with the snake example that you stated, would you get the results and

then -- in order to interpret those results, ask the subject about those results?

A No. It would be absurd to do that. Interpretation -- thereís two stages of any

empirical investigation. The first is gathering the results and analyzing them and

and then finding whether certain differences exist, and the second stage is

interpretation, and only experts in the field can make the interpretations. Now --

Q With IQ tests, would somebody administering an IQ test ask somebody, why did

you not do well on this question?

A Well, it would be silly to do that. Not only because the subject is not a competent

professional tester, but also more importantly, heís certainly not a competent

scientist in the field of IQ research, and you would have to be both in order to get

any sort of sensible answer. I think there is a purpose to that question. The purpose has nothing to do with detecting deception. It has everything to do with

eliciting confessions, that is the interrogatory function of the polygraph.

Q What do you mean about the interrogatory function of the polygraph?

A Well, the second function of the polygraph is to elicit confessions, and in fact the

interrogation or the elicitation of confessions is an integral part of the polygraph,

and the purpose there is to produce a statement from the examinee that can be

interpreted as confessing to criminal guilt.

Q If I could stick to the detection function for one more minute. What did you

review in preparation for this case, for testifying here today?

A The type of control and relevant questions used, the charts, the interview of Mr.

Matzke with Dr. Ofshe, and the interview, your interview and the prosecutionís

interview with Mr. Matzke.

Q And did you also have the opportunity to review Mr. Matzkeís testimony at this

hearing?

A Yes.

Q Did you review the control questions in this case?

A Yes, I reviewed the so-called control questions and also the relevant questions.

Q And do you have any observations about the control questions used in this case?

A Well, the so-called control questions used in this case --

MR. LANG: Your Honor, for the record Iíll object on relevance grounds and foundational grounds.

THE COURT: Thank you. The objection will be overruled. The objection is noted.

MR. LANG: Thank you.

THE WITNESS: Fairly clear instances of relatively ineffective control questions, even by

polygraph standards.

Q (MS. MCGINTY): Why do you say that?

A Because even on the face of it, questions about acts committed at age 15 about

lying about something important and so on, by no stretch of the imagination equal

or close to equal an emotional impact to the relevant questions, which have to do

with murder, especially given the context of those questions.

Q What do you mean by that?

A Well, becoming a suspect, being a period where was a suspect, a witness, the

whole -- the whole general issue, even treated as a witness, the events, even

assuming heís innocent but that he saw what went on, these events would have

considerable emotional impact even before the first polygraph examination, but

certainly after the polygraph examination and the apparent confession, they would

have even greater emotional impact, and when you compare that to the emotional

impact of these relatively general questions, thereís no attempt with the control

questions to go into specifics which really troubled this person.

So these look to me to be examples of -- even by polygraphic standards to be

careless from the point of view of being serious about detection, that is from the

point of view having any chance of the control questions eliciting bigger responses

than the relevant questions, which is necessary for someone to come out as

truthful n this situation. Of course, I canít be any more specific because unlike in

other cases, thereís no record, either written or taped, of what went on in the

pretest interview.

Q Is it enough to have -- is it enough to have the polygraphic charts in front of you?

A No. Thatís completely insufficient.

Q And why is that?

A Because even if you get in the polygraphic charts, as in the second and third charts,

itís true that you get a result of R greater than C, even on gross common sense,

you canít rule out the quite strong possibility that the responses to the R questions

were greater than the C questions simply because they have greater emotional

impact, even though the subject may be innocent, may be non-deceptive.

Q Was you evaluation affected in any way by the lack of records in this case?

A Yes. I mean on the one hand, if thereís some record, even if itís a written record,

then I can get a better idea of in what way these non-detection were later factors

that may have played a part in producing a C greater than -- an R greater than C

result and also perhaps in the first confession.

On the other hand though, this is the first case in my experience where thereís been

no record, either written or taped, of the polygraph examination, and that does

suggest to me again that the polygrapher was using this procedure only as an

interrogatory confession-inducing prop and was totally unconcerned about the

detection function.

MR. LANG: Your Honor, Iíll object to that last answer on foundational grounds, and I

would like to have an ongoing objection so I donít have to interrupt again.

THE COURT: All right. Thank you. The objection will be noted and will be allowed to

be a continuing objection and is overruled at this time.

Q (BY MS. MCGINTY): Comparing again the polygraph to a test, are there standards

for keeping records when tests are administered?

A Well, there arenít because they arenít as rigorous as necessary in this case because

tests do not need the same extensive records, because tests are standardized, so

when you administer an IQ test, for example, itís clear what the items are going

to be and there isnít -- thereís no pre-extensive pre-IQ interview, where you have a

conversation with the person about his innermost life, and there certainly isnít a

post-IQ interview procedure which can last from ten minutes to eight hours or

whatever. So itís not necessary to have that sort of recording because theyíre

genuinely standardized tests. The polygraph, however, is a complex dynamic

interview procedure, and if you have no record of that, you have absolutely no

idea of what went on.

Q And when youíre saying polygraph, are you talking about the whole time period

that the polygraph examiner spends with -- let me just finish my question, even if

you already know the question -- the whole time period that the polygraph

examiner spends with the subject?

A Yes.

Q In this case are you able to determine the detection -- let me just have one second,

your Honor. Iím sorry.

Oh, Dr. Furedy, how does -- what are error rates in test? What is the general

concept of error rates?

A Well, the general concept of error is when a test classifies somebody as "X" when

in fact heís non- "X". In the IQ case, for example, the error rate of classifying

someone as sub70 IQ which is moron on a rapport.

Q What is what?

A Moron, M-O-R-O-N.

Q Moron, okay.

A You could specify the error rate of classifying someone as moron when in fact they

are not, when in fact theyíre more intelligence as some percentage. In fact, there

are two error rates, especially if youíre talking about classifying people into two

classes, I mean IQ tests on a continuum, the scoring, but in terms of two classes,

letís take the deceptive and truth of the case, thereís two sort of errors. You can

classify someone as deceptive when they are in fact more truthful, and thatís

called false positive. So itís false but itís a positive mistake. And you can classify

someone as truthful when in fact they are deceptive. And thatís false negative.

Q Sticking to the -- sticking to the traditional testing, are you saying that the error

rate is the percentage of error that you have when you give any test?
A Yeah, the percentage of -- percentage of misclassification, and it depends on how

you define the classes. See, if with an IQ test I claim that I could -- an IQ test I

claim that he could determine whether somebody has a 99 IQ or a hundred IQ,

the error rate for that would be very high, because itís a very small difference.

On the other hand, if someone says that they have a test that can classify whether

someone is below 70, moron, or about a hundred, that error rate would be quite

low, and you could determine the error rate of course by giving the test to say a

thousand individuals and seeing what percentage of time the test misclassified this

individual, that is what percentage of time do you call -- classify someone as a

moron when in fact they are above average in intelligence and vice versa.

Q Is there such thing as a perfect test?

A No. All tests are subject to error.

Q And what is the error rate in the case of a polygraph test?

A Impossible to specify, since itís like asking what is the error rate of tea leaf

reading, because it is not a specifiable procedure.

Q In the scientific -- in the field of psychology, and its subfields, do people attempt

to find out what causes errors?

A They do but thatís a very -- thatís a very higher level of scientific inquiry. The first

stage of scientific inquiry is establishing that an effect occurs.

Q Establishing?

A That an effect occurs, a difference occurs or a certain error rate of a certain level

occurs. Then the secondary question, very much more complicated, is a scientific

question about causes. You see, let me give you an example, okay. Supposing you

have two IQ tests and one of them has a lower error rate for classifying people as

morons versus above average intelligence than the other, having established that,

you might then ask, what are the reasons for this difference in error rates and then

you would start looking at the characteristics of the test, the conditions under

which itís given, et cetera.

It would be absurd of course to ask one of the people undergoing the test, you

know, why this difference in error rates or why this difference in that.

Q Is it part of test giving to control for error?

A Yes. The most important thing is that you can estimate the error, but after that,

itís important to control for error in that you try to eliminate confounds. In giving

an IQ test items, thereís certain minimal requirements. If you ask the questions

while making a face or, you know, being threatening to the subject, then that

would confound the result. That would produce error, but also thatís a conscious

thing, but also if you found that youíre giving an IQ test in English but the subject

doesnít understand English very well, you would be introducing error into it,

because then that will be the English understanding that you would be partly

measuring rather than the IQ itself.

Q Do you have any information in the polygraph context that causes false positives?

A Again thereís no systematic data because the polygraph procedure is an unstandard

procedure. However, from elementary psychological and psychophysiological

principles, there is information, and that is the greater the impact of a stimulus,

the bigger the response.

Now, one obvious way in which a false positive would occur here is an R greater

than C result, which is due to the fact not that the subject was deceptive but that

he felt extra anxious about the R questions.

Q And youíve already said that itís impossible to tell why a person gets a particular

result.

A Yeah, in terms of why minus eight rather than minus ten, but the possibility that an

R greater than C result is due to the greater impact of the question, of the R

question, independently of whether or not the subject is being deceptive, can be

deduced from elementary psychophysiology.

Q With you -- did you have a chance to review Mr. Matzkeís comments on how he

handles false positives or controls?

A Yes. I did in a number of cases. It was quite apparent that heís totally

unconcerned with this critical aspect of testing. I think itís a case of lack of

understanding rather than any ill will on his part, so Iím not suggesting that heís

doing anything morally wrong, but he simply does not understand the concept of

testing and really the concept of error.

One of the -- one of the places where this emerges fairly clearly is his interview

with Dr. Ofshe. Sorry. I think itís about page 19. No. Iím sorry. Page 16 of the

interview with Dr. Ofshe. Is that already in the --

Q Thatís okay, Dr. Furedy.

A Can we turn to it?

Q Yes.

A In the middle of the page, Dr. Ofshe says, asks, in the middle of page 16, Dr.

Ofshe, thatís asks, cause on a polygraph interpretable as interval level

measurement or ratio level measurement or ordinal level measurement.

Q And what does that mean?

A This is an elementary undergraduate concept in psychological tests. It refers to the

sensitivity of scales. The most primitive scale is an ordinal level of measurement

where you can say A is greater than B, B is greater than C, but you canít say how

much A is greater than B and how much B is greater than C.

The next level is interval level, where you can say that the, for example, the

difference between A and B is twice the difference between that between B and C.

Q What level is that?

A Interval, interval. And then the third one is ratio, which is even more sophisticated,

but you only get mostly in physics where you can actually state what the ratio of

the differences are. Now, the point of that question of Dr. Ofshe, I take it, is to

see whether --

MR. LANG: Your Honor, Iíll object to speculation on Dr. Ofsheís --

THE COURT: Iíll sustain.

THE WITNESS: Sorry. Okay. Anyway, the answer to the question is I donít understand

any of those things. Now, thatís okay for a legal professional to give that sort of

answer, but anybody who gives a psychological --

MR. LANG: Excuse me, your Honor. Iíll object. This is not responding to any question.

THE COURT: You may ask the question, please, so we know where we are.

Q (BY MS. MCGINTY): What is your -- what was your analysis of Mr. Matzkeís

response?

A That I donít understand any of these things, my analysis of her response is that

heís totally unfamiliar with the principles of psychological testing, even though

heís giving what purports to be a psychological test.

Q And why is that -- why is his insensitivity or --

A Well, if he doesnít know what he, his test, is measuring, then he doesnít know

what heís doing. But further on, the middle of page 17, Dr. Ofsheís asking about

false positives, the effects of false positives, the effects of making errors, and Mr.

Matzke says, it reflects he says, why it is dangerous to make error, so why is it

that dangerous to make errors? And Matzke says, Mr. Matzke says, it reflects on

the polygraph profession.

Now, that indicates to me that -- and it goes on to the next page. Itís quite clear

that he doesnít understand that the main danger of false classification is that it does

harm to the subject being tested, because heís misclassified. The main danger is

not to the reputation of the polygraph profession. In fact, I mean before -- in terms

of not knowing what an interval scale is and so on, Mr. Matzke shows that heís

scientifically ignorant, but in this response, the only -- the main danger he sees, in

fact the only danger he sees in errors is it reflects badly on the polygraph

profession, I think he shows a lack of professionalism, that is in terms of using the

polygraph as a detection device, because he seems to be totally unconcerned with

what itís plainly apparent that errors, especially when the classification is so

serious, in terms of whether somebodyís guilty or not, have to be considered not

only in terms of how it affects on the polygraph profession, but how it affects the

life of each examinee.

Q Would that -- would what youíre saying, Mr. Matzkeís lack of concern, would

that be important even if the polygraph is not admissible in court at a jury trial?

A Yes, it would, because it differentiates what, at least by polygraphic standards, is

a careful profession. Someone who, even though he doesnít agree with me about

the polygraph as a detection device, at least is familiar with some of the problems

that I and other people are raising, in this particular case the error of

misclassification.

It would be like a doctor saying that the main reason why heís concerned about --

a surgeon, it would be like a surgeon saying the main reason heís concerned about

errors in surgery, which can result in death, is that it reflects badly on the surgical

profession. Now, itís true of course surgical errors do reflect badly on the surgical

profession, but -- and that is presuming surgeons are sensitive to that, but for a

surgeon to say that the main reason is that, and be completely insensitive to the

problem that people are killed by bad surgery, is unprofessional.

Q Turning your attention to the post-polygraph interview. Is that a function of the

detection purpose of the polygraph or the interrogation purpose of the polygraph?

A Itís clearly the interrogation purpose of the polygraph, although there are aspects

of the pre-interview procedure which also have interrogatory function.

Q What aspects of the polygraph interview have interrogatory functions?

A Well, I have to speak generally again because we have no record of the

pre-interview, but as a concrete example from another case, there are questions

asked in the pre-interview procedure which can be used in the interrogation

procedure. In this case Iím thinking of one of the questions asked of the person

was his parents and it turned out that the person -- the examineeís mother had just

died recently and quite suddenly, and this was a written record of the

polygraphic examination. In the post-test interview, one of the comments from the

polygrapher was your poor, dead mother would have wanted you to confess to

this, so why donít you. So that would be a concrete example.

I canít of course provide one from this case, since we have no record of what

went on. But this is why Iíve said that the polygraph is completely confounded,

the interrogation and the detection function are completely confounded in that

procedure.

Q When youíre saying that the interrogatory and the detection function are confounded, what do you mean by that?

A Well, the aim of detection is to arrive at a correct classification, deceptive or

truthful. The aim of interrogation confession eliciting is to produce a statement

which will be useful in convicting a suspect. Those two aims are not only

different but they can be in contradiction of one another.

THE COURT: We need to take a recess because I -- at this point because I need to bring

something to counselís attention also. I have a letter -- and you can step down,

doctor.

MS. MCGINTY: Do you want Dr. Furedy to wait in the hall?

THE COURT: No. No. This is fine. Iím just going to advise you that a Jennifer Engel,

E-N-G-E-L, juror, has written to the Court requesting to be relieved from jury

duty at this time, and sheís willing to have her jury duty put over until summer

because she is a college student and the timing of her trial will run into her finals,

and she pleads for understanding.

MS. MCGINTY: Should we be merciless, counsel?

MR. LANG: I have no problem with excusing her, your Honor. Could we have her

number, if you know it?

THE COURT: I donít know it. Itís Jennifer, Engel, E-N-G-E-L. Does the defense have

any problem?

MS. MCGINTY: Well, your Honor, under the circumstances, I think that would certainly

be a hardship economically and academically and so the defense has no choice

really but to agree that this juror should be excused for cause.

THE COURT: And I think that someone with that kind of stress on their mind and maybe

trying to study at odd times may not have the necessary commitment. So Iím sure

Ms. Engel will thank you, and I will advise her that she can speak with the jury

coordinator and select a time to serve as a juror later this summer. All right. Weíll

be in recess until 1:30.

(Whereupon, the luncheon recess was taken.)

THE COURT: All right.

MS. MCGINTY: Your Honor, with regard to scheduling, I have my next witnesses here.

Iím not sure if Iíll get to them. But theyíve -- theyíre detention personnel and

theyíve asked if they could go to lunch. I think itís safe to let them go for an hour.

THE COURT: An hour?

MS. MCGINTY: Hour and a half or so.

THE COURT: An hour.

MS. MCGINTY: Susan, could you do that. Iím going to ask that you ask that they be

back in an hour.

Thank you, your Honor.

 

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