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:
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,
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
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--
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
Q Have you published articles in the field of psychophysiology?
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
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
Q That was my --
Q Iím sorry, the detection?
A The detection of deception or the polygraph from a psychophysiological
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
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.
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
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.
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.?
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
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
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
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
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
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
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
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
Q What -- let me ask you. Is it possible to physiologically measure anxiety?
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
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.
Q You stated, I believe, that youíre -- that youíre a professor of psychology and that
your specialty is psychophysiology?
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
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
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
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
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.
Q So Iím going to try and ask that question all the way.
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 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
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
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
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?
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
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
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
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
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?
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.
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
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?
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
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
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
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,
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
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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