THE COURT: Mr. Furedy, you may resume the stand.

Q (BY MS. MCGINTY): Dr. Furedy, you talked about control questions. Is there -- I

want to ask you a little bit about relevant questions. Is there any analogue in

psychology or psychological or physiological testing to polygraphic relevant

questions?

A Well, in a relative sense there isnít because the comparison is between relevant and

control. However, there is an analogue in the sense that in normal psychological

testing the questions can be classified as being of a certain sort. For instance, in

IQ tests the questions are questions which test cognitive ability. In the case of

relevant questions, the classification which you can put to it, with which

polygraphers would also agree, is that relevant questions are questions that relate

to the crime and to which the innocent tell the truth and the guilty lie.

So for example, if you have a relevant question in a crime of theft might be, did

you steal the money, and the answer no is true in the case of innocent suspect

or false or lying in the case of a guilty or deceptive, what they call a deceptive

subject.

Q And does the polygraph test measure with any certainty whether someone is

telling the truth or not to a relevant question?

A No, it does not for the reasons as Iíve said before. Itís not a test. The comparison

between the relevant and control, as in that diagram, can be due to any difference,

can be due to all sorts of other factors as well as lying, but the reason why I said

that relevant questions can be classified in general as crime related and on which

the innocent tell the truth and the guilty tell a lie is that in cases where the

polygrapher hasnít followed that relatively simple rule, itís quite clear that heís

engaged in detection at all.

In this particular case, in the first polygraph, the one that resulted in inconclusive,

the second so-called relevant question, is not a relevant question by normal

polygraphic standards.

Q And what is the question?

A Well, that question is did you see Glen Stahlmanís death? Iím reading from the

typed report.

Q Okay.

A Now, the typed report actually says that these are the three relevant questions but

the first one -- number one isnít, but the two questions to which measurement,

which are treated as R in that diagram, the first one is did you cause any of the

injuries that resulted in Bill Stahlmanís death? And that is an adequate relevant

question by polygraph standards, because if the person is innocent and he answers

no, heís telling the truth, and if the person is guilty to the crime of murder and he

answers no, then he is lying, but the other relevant question, did you see Glen

Walker cause the injuries that resulted in Bill Stahlmanís death is not an adequate

relevant question, even by polygraphic standards, because as I understand it, the

suspect agrees and agreed that he did see Glen Walker cause the injuries that

resulted in Bill Stahlmanís death.

So any response that you get to that question, even in an innocent subject, is going

to be -- have nothing to do with deception. Itís going to be in terms of the anxiety

elicited by that question. Anyway, itís not an adequate relevant question, even by

polygraphic standards, and whatís even more curious is that -- I said to you I

wouldnít be analyzing the charts, but if you look at the scoring method, which is

a sheet that looks like this (indicating), and itís headed by Backster zone

comparison scoring systems --

MR. LANG: Excuse me, your Honor. I will object at this point. I was also advised he

would not be testifying to the charts --

THE WITNESS: Iím not testifying to the charts.

MR. LANG: -- or scoring and I would not be prepared to cross-examine him on this

issue.

THE COURT: You can ask another question, please.

Q (BY MS. MCGINTY): Would it be -- based on your review of all the materials, would

Mr. Matzkeís assertion that Art Fegley had a problem with the question that his

charts -- excuse me, that Art Fegley had a problem with the question, did you

cause any of the injuries resulting in Bill Stahlmanís death, would that be true?

MR. LANG: Your Honor, I will object on the grounds I just stated.

MS. MCGINTY: Your Honor, those grounds are not agreed to by the defense, and if the

State wants a moment to talk to Dr. Furedy, that would be fine. This is a very

limited short inquiry, and if the State needs additional time to talk to Dr. Furedy,

thatís fine.

THE COURT: The objection will be overruled, and if time is needed, time will be given.

THE WITNESS: Iím sorry. What was the question?
Q (BY MS. MCGINTY): Can you -- based on everything that youíve reviewed, can you

say that the -- in this case Arthur Fegleyís problem with the relevant questions or

the control questions had to do primarily with the question, did you cause any of

injuries that resulted in Bill Stahlmanís death?

A No. In terms of the polygrapherís own scoring system, not looking at his charts at

all, but his own scoring system on that Backster zone comparison sheet, if you

look at question seven, which is the inappropriate so-called relevant question,

that is about seeing the crime being committed, that has more negatives which tend

deceptive direction than question five, which is an adequate relevant question by

polygraphic standards, which is did you cause Fegleyís death?

So if the polygrapher had been sensitive to what was going on, he would have

concentrated more on question seven than on question five, and of course at the

bottom of the typed page with the three so-called relevant questions, after subject

was advised of his rights and was given a polygraph examination, he was

questioned during the post-test interview phase of the examination, due to his

responses to the question referring to him causing any of the injuries to the subject

question two above, but by the polygrapherís own scoring procedure, if anything,

it was question seven, the inappropriate so-called relevant question, which was

eliciting a bigger response relative to its control than the other one, so this

suggests to me quite strongly that the polygrapher was not using this procedure

as a detection device at all, even by polygraphic standards.

Q Why was question seven, did you see Glen Walker cause, what is it -- did you see

Glen Walker cause the injuries that resulted in Bill Stahlmanís death, is that the

question?

A Yes. The question is did you see Glen Walker cause the injuries that resulted in

Bill Stahlmanís death?

Q All right. Why is that question inappropriate?

A Itís inappropriate because it doesnít satisfy the definition of a relevant question.

A relevant question is a question to which the answer is a lie in the guilty or

deceptive person, and true in the case of the truthful or non-deceptive person,

but in the case of number three, the answer yes is not a lie. It should mean that

Mr. Fegley is innocent. It should mean that Mr. Fegley was innocent of the crime,

right, then the answer to the question -- but that he has admitted seeing the crime

occur.

Q Iím sorry. Weíre calling number seven and number three. Is that the same question?

A Yeah. Number seven -- I mean this is confusing. Number seven is the question, did

you see Glen Walker cause the injuries, and number five is the question, did you

cause any of the injuries that resulted in Bill Stahlmanís death, and those are the

two relevant questions, R questions, which determined the polygraphic outcome

in the first test. Those are the questions to which responses were measured and

compared to questions, responses to so-called control questions.

Q Is that question, did you see any of the injuries, is that inappropriate simply

because it calls for a yes from an innocent -- from a truthful person?

A Not because it calls for a yes or no. Because it does not satisfy the requirement

that an innocent person will tell the truth to -- the answer of the innocent person

is true and the answer of guilty person is false.

Q Are you saying that the answer of a guilty person could be true and that the

answer of an innocent person could be false?

A Well, it just doesnít -- it just doesnít satisfy the requirement for a relevant question.

A relevant question has to be relevant to the crime and an innocent personís

answer to it must be false. I mean the chart -- the question at issue is whether Mr.

Fegley is guilty of the murder. The question, did you cause any of the injuries is an

adequate relevant question in that sense, in that if he says no, and he was guilty,

then heís lying and if he says no and heís innocent, then heís telling the truth. The

question about seeing doesnít say that condition.

Q Dr. Furedy, do you agree that the confession validates the procedure used to get

it, used to arrive at the confession?

A No.

Q And why not?

A First of all, because the conditions under which the confession is obtained are very

variable, and therefore canít possibly be used as a criterion for validity, but more

importantly, the confession involves a proposition about the world, about what

happened, essentially a cognitive proposition, and the reliability of cognitions

decreases as a function of heightened emotional state, especially if the proposition

is about a relatively complex situation, if thereís some confusion in the subjectís

mind, then the more emotion, the emotional light in the context is the less reliable

that confessionís going to be in terms of validation criteria.

Q Now, in test taking, what factors --

A Iím sorry. I have something else to add to that.

Q Please.

A In general, the information obtained in a confession situation is not likely to be

reliable because a confession situation itself is really more directed to getting a

particular formula out than finding out the real truth. But thatís a general statement

than the other stuff I said was the case.

Q And youíre not able to evaluate whether that happened in this case or not; is that

right?

A Well, I canít evaluate it very specifically since no -- no records were kept, but I

can say some of the factors which contribute to the deterioration of cognitive

performance and that were present in this case.

Q What factors contributing to the, Iím sorry?

A To deterioration of cognitive performance, and that just refers to the reliability of

the confession statement in terms of reflecting what actually happened.

Q Let me ask you this specific question. What factors in general contribute to the

deterioration of cognitive performance?

A Well, first of all, if the issue is a complicated on, if thereís a cognitive confusion

in the situation, and in this case one source of -- obvious source of cognitive

confusion is between moral guilt and criminal guilt. Assuming that the subject

was innocent of the crime itself, itís very likely that thereís a considerable degree

of moral guilt involved in seeing a crime like that occurring and not doing anything

to stop it, especially given the size of the client and et cetera.

Q Iím sorry.

A And so in terms of guilt, a distinction between moral guilt and criminal guilt is

quite a complicated one and a confusing one, and then to the extent that high

emotion is generated, that confusion is likely to increase and therefore decrease the

reliability of a statement about criminal guilt. Now, again I have no record here,

but in other cases, itís quite common during the --

MR. LANG: Your Honor, Iíll object to reference to other cases.

THE COURT: Sustained at this point.

Q (BY MS. MCGINTY): Dr. Furedy, in the psychological and psychophysiological

fields, is test reliability a concern of the testers and the professionals involved in

this field?

A Oh, itís an absolute concern. I mean unless you have -- let me back up for a moment because there is a distinction between reliability and validity. Validity is

the extent to which a test measures what it is meant to measure. Reliability refers

to the ability to duplicate test results over occasions. You cannot have validity

without reliability. Since the polygraph is not a test, even its reliability cannot be

assessed and therefore its validity cannot be assessed. But it is a concern, of

course itís a concern, because testing involves classification, classifying individuals,

and if that classification is wrong, then there are negative consequences for

individuals, especially if the classification is this sort of life or death, all or none,

deceptive or non-deceptive. So I can just go on?

Q In the case --

A In the case of IQ testing, for instance, thereís concern that students are wrongly

classified; theyíre classified as below average intelligence where as in fact they are

about average intelligence and there can be some serious consequences to that, but

the consequences of being wrongly classified in that sense pale relative to the

consequences of being classified as deceptive when youíre not.

Q Is voluntariness an issue in test giving?

A In general test giving, it is a relatively minor issue, because for instance, when

youíre asked whether youíre willing to take an IQ test, thereís informed consent in

the sense that what you will be given is a real test. In the case of polygraph, even

if youíre well educated, even if youíre a psychophysiologist, as I was up to 1980,

when --

Q Are you not a psychophysiologist?

A But I was sort of ignorant psychophysiologist with respect to polygraph up to

1980.

Q Thank you.

A So if at that time I would have been asked to take a polygraph, because I was

suspected of taking $2,000 from the departmental money till or something, I

would have agreed, thinking that what I was consenting to was taking a test like

the IQ test, but in fact I now know, as a non-ignorant psychophysiologist

post-í80ís, that I would be consenting not to a test at all but to an interrogation

procedure of unlimited lengths and considerable psychological pressure. So there

is in general a problem with voluntariness.

I would say that strictly speaking, unless the consent form includes in it the notion

that this so-called test or examination includes not only having physiological

recordings, et cetera and conclusions based on that, but also an interrogation

period of unlimited length during which time thereís an attempt to produce

confessions, unless that sort of consent form was read and signed by a well-

educated person, I would say that there is no voluntary consent at all.

Q Were there any particular problems with the -- Iím sorry. Had you not finished

your answer? I think you breathe and I just assume that youíre done. Are you --

A I have a comment to make about the degree of voluntariness as a function of the

situation.

MR. LANG: Iíd ask --

Q (BY MS. MCGINTY) What is the degree of voluntariness as a function of the

polygraph situation.

THE COURT: You may proceed.

THE WITNESS: So I said that in general itís not voluntary, but it becomes less and less

voluntary as a function of the lack of education, experience of the examinee and

also of the examiner. To the extent that neither the examinee nor the examiner

understand the distinction between detection, thatís test, and interrogation, thereís

no way that under those conditions that you can even conceive of the agreement to

undertake -- agreement to take a polygraph as being voluntary, because not only

is the examinee completely ignorant but also the examiner is fairly ignorant of

whatís going on.

You see thereís a chance that a well-educated person, say like me, as I get into

pre-1980, after I agree to take a polygraph, as I went through it, it might be that

my education is sufficient that at the point where we arrive at the post-test

interview so called, I then say to myself, wait a second, I agreed to take a test;

I didnít agree to undergo any interrogation. And I might then be smart and well

educated enough to walk out, even though there is a lot of emotional pressure and

so on. But thereís very little chance that someone whoís uneducated, who is

unfamiliar with the difference between a test and a dynamic interview and the

difference between detection and interrogation, that that person is going to.

Q (BY MS. MCGINTY) Is emotional pressure part of test taking and test giving?

A Yes. But itís not as if itís -- not necessarily the crude sort of emotional pressure

where the polygrapher, you know, is overbearing, but the emotional pressure is

just part of the situation; after all, you are being tested for an extremely important

issue in your life. That examination is going to decide whether you are guilty or

innocent. So that in itself is sufficient to generate the emotion, and then in the

confession phase, that is the post-test interview or post-test interrogation, there is

pressure on the part of the examiner to have you come out with the right formula

to confess, to confess that you were a sinner, and that is also going to -- that sort

of -- that sort of pressure is going to affect reliability, make it worse.

Q Would the examiner need to be overbearing?

A No, not at all. Quite often the most successful technique for eliciting a confession

is to be very friendly, almost like a priest in a confessional situation, a friend.

Q Would whether or not the examiner was overbearing affect whether or not the

confession was false or true?

A Well, yes, it may. Itís one of the factors, to the extent that the more -- more

emotion you have in the situation, the less reliable the confession, but it might well

be that in order to produce a confession, which may or may not be true, it is more

effective to be friendly and not overbearing, be on the side of the person rather

than be overbearing. Thatís a part of interrogation.

Q Could a false confession still be produced in those circumstances?

A In either case, false confession is quite possible, yeah. What I meant by a decline

in cognitive performance is a false confession.

Q Did you identify any factors affecting reliability in this particular case?

A Yes. I think I said before thereís always a degree of moral guilt, but in this case,

there seems to be considerable --

MR. LANG: Iím sorry. I didnít hear.

THE WITNESS: A considerable scope for moral guilt. In the hypothetical example I

gave of myself as being a trustee for $10,000, I said that assuming I was innocent,

I didnít steal it, I would nevertheless have some moral guilt to the extent that

maybe I should have looked after the money more. In this case the scope for moral

guilt seems to be much more because according to the suspectís own testimony, he

stood there and watched without doing anything while this crime was being committed.

Q (BY MS. MCGINTY) Other than moral guilt, did you identify any factors that would

affect reliability?

A Well, to the extent that the subject is uneducated and of relatively low intelligence

and experience, to that extent again the emotional pressures would decrease the

reliability of his statements about what happened.

Q Did you identify any factors in this case relating specific to this case relating to

voluntariness?

A In terms of wishing to take the polygraph?

Q Yes.

A Well, again, I think thatís what Iíve said. In the case of the voluntariness, if the

person is educated and intelligent and experienced, like I was up to 1980, he

might -- he would still be not signing informed consent but he might -- he or she

may wake up in the middle and recognize what is going on, but to the extent that

the personís uneducated, unintelligent and inexperienced, and is also asked

complicated questions about what his test results are, which he canít conceivably

answer, thereís a greater degree of involuntariness involved, because thereís just

no -- the person doesnít know what is going on.

MS. MCGINTY: Thank you. Just one second.

Thatís all I have, your Honor.

THE COURT: You may inquire.

CROSS-EXAMINATION

BY MR. LANG:

Q Do you need any water, doctor?

A No. Iím okay. Thanks.

Q Good afternoon.

A Hi.

Q Doctor, youíre not a forensic psychologist, are you?

A No.

Q Youíre not an expert in interrogation, are you?

A Not in interrogation as such, but I am an expert in the interrogation that goes on in

the polygraph, in the context of polygraph.

Q Doctor, my question is youíre not an expert in interrogation overall, are you, in the

science of interrogation?

A There is no science of interrogation.

Q Are you familiar with the concept of interrogation?

A Yes.

Q Do you consider yourself an expert in interrogation?

A No, Iím not an expert in the art of interrogation.

Q Doctor, you have never conducted a live polygraph examination yourself, have

you?

A No. Iíve also never conducted any tea leaf reading.

Q Doctor, you have never conducted any polygraph examinations of criminal

suspects in the field, have you?

A No.

Q And field polygraph examinations?

A No.

Q Doctor, you have never observed a live polygraph examination, have you, any field

polygraph examinations?

A Yes, I have, yeah.

Q How many?

A Just one so itís not --

Q So itís not what?
A Not -- certainly not a large number.

Q When was that polygraph examination that you observed?

A It was about a year ago; they did a videotape of a polygraph case I was involved

in.

Q And where was that?

A Toronto.

Q And under what circumstances did you observe that polygraph examination?

A It was a videotape.

Q And were you consulted on that case? By what circumstances?

A Iím sorry. I was an expert. Itís actually still going on, an expert witness for the

defense, and this was a case where the polygraph was videotaped.

Q And what was -- that is an ongoing criminal case in Toronto, Canada, correct?

A Uh-huh.

Q And you have observed, actually observed, the videotape in that particular polygraph examination?

A Yes.

Q And doctor, is it your opinion that in that polygraph examination the defendant

subsequently gave an involuntary or false confession?

A Do I have to answer that?

THE COURT: Yes.

THE WITNESS: Okay. Itís my opinion that the confession was involuntary because of

the general reasons that Iíve talked about being involuntary, no necessarily because

Iíve observed the videotape.

Q (BY MR. LANG): Doctor, prior to that one polygraph examination that you observed

by way of videotape last year, have you ever observed another field or live

polygraph examination?

A No.

Q Doctor, have you ever received any formal training on any topic associated with

lie detection?

A Yes.

Q Where?

A University of Sydney.

Q That is in your undergraduate or masterís program?

A Masterís and Ph.D. The answer to that question is yes because Iíve received

formal training in the science of psychophysiology.

Q So the courses that you took that you claim give you formal training in lie

detection are actually courses that you took in psychophysiology?
A No. Maybe I should rephrase that.

Q Please do.

A Iíve received formal training in the scientific field of psychophysiology of which

the polygraph is a purported application. I have not received any formal training

in actual polygraph testing, polygraphic examination, Iím sorry, itís not testing,

polygraphic examination.

Q Have you ever attended polygraph school in the United States?

A No.

Q Are you aware -- Iím sorry?

A Can I just -- I am, however, on the curriculum advisory board of the Department

of Defense Polygraphing Institute.

Q And where is that institute?

A Itís near Alabama.

MS. MCGINTY: Iím sorry. I didnít hear that answer.

THE WITNESS: I am, however, a member of the curriculum committee of the

Department of Defense Polygraph Institute in Fort McClellan.

Q (BY MR. LANG) Doctor, weíll get to that in just a minute. Iíd like to finish up with

this particular area. Have you attended polygraph school in either the United

States or Canada?
A No. Iíve attended no polygraph school anywhere in the world.

Q Can you tell us the number of criminal suspects you have interviewed which

support your conclusions regarding confessions following a polygraph?

A I have not interviewed any criminal suspects.

Q Could you please --

A But thatís not what supports my conclusions regarding the polygraph.

Q And weíll get to those in a few minutes. Thank you, doctor. Doctor, youíve been

a practicing psychologist since approximately 1965; is that correct?

A No. Itís incorrect. Iíve not been practicing as a psychologist at all. I have been a

professor of psychology since 1967. Thatís the discipline of psychology. A person

who has been practicing as a psychologist treats people for psychological problems.

Q Doctor, in those 29 years, where youíve been working in this field, you have

testified in court only three to four times on the effect of a polygraph on a

confession; is that correct?

A Yes, because I havenít worked with the polygraph issue with this purported

application of psychophysiology. I only started doing that in the mid-í80ís.

Q Doctor, youíve been consulted in approximately six cases overall; is that correct?

A No. I think itís more like nine.

Q Nine?

A Yeah.

Q Do you recall your interview with us in January of this year on the telephone?

A Yes.

Q And do you recall telling us that you had only consulted six cases?

A No, I donít. Maybe itís six; I mean I said maybe itís nine. I canít -- I mean at the

phone call, I was pretty vague about the exact number. Itís between six and nine.

Q So in your 29 years working in the area of psychology, you have only consulted

in six or nice cases where the polygraph was used and a confession came up after

that; is that correct?

A In the -- prior to the mid-í80ís, I was not concerned with this particular

application of psychophysiology.

Q Doctor, how many times have you either testified for or consulted for the

prosecution in a criminal case on this area?

A Two, I think.

Q Two out of your six or nine?

A Yeah, yeah.

Q And where were those?

A One is the Marshall, Marshall Commission, Canada.

Q And please relate your work in that particular case and then weíll get to the next

one.

A No. Wait a second. Is that a prosecution? The Marshall Commission, itís not a

defense, anyway. The Marshall Commission was a case where somebody was

found guilty by polygraph of murder and then 20 years later they discovered he

was innocent and there was a commission inquiring into the polygraph. So I was

consulted on the polygraph in general. So itís not for the prosecution but itís also

not for the defense. The other one was a case in Canada about five or six years

ago, the judge name is Kurisko, K-U-R-I-S-K-O, where the defense tried to get a

friendly polygrapher, polygraphic evidence admitted, and I was consulted about

the reliability of the polygraph and the desirability of admitting the polygraph and I

argued against it, of course.

Q Doctor, in the three four or four cases which you have actually provided in court

testimony, how many of those have been the prosecution or the crown, as itís

referred to in Canada?

A None.

Q Doctor, you have written a paper countering confessions produced by the polygraph?

A Yes.

Q That came out in 1986?

A Yes.

Q And that was directed at criminal defense attorneys; is that correct?

A Yes.

Q And in that paper you offer advice to criminal defense attorneys, is that correct, on

how to counter confessions which occur after a polygraph examination?

A Yes.

Q You have written no such papers directed at prosecutors -- prosecution or crown

attorneys providing similar advice to them, have you?

MS. MCGINTY: Objection. Relevance.

THE WITNESS: Well, I can answer if you like.

THE COURT: Yes, you may.

Q (BY MR. LANG): Please do.

A It would make absolutely no sense, because in the case of the defense, the

polygraph is used to induce a confession. There is no analogy in the case of

prosecution. Those are rarer cases. The only cases where I would be testifying

against a polygraph is cases where the defense decides to hire a polygrapher to try

to show that the suspect is innocent. Those are rarer cases. So you know, thereís

no reason for me to write such an article.

Q Doctor -- Iím sorry.

A In this case, you make it sound as if I was sort of writing a book for various

people. Thatís a refereed journal, and the journal only accepts papers which are

relevant in general. The case of the polygraph in the hands of the prosecution used

against defense is of legal relevance. The case of the other way is not really

relevant partly because you see the problem -- the reason why this is asymmetrical

is that polygraphs in general, the evidence --

Q Excuse me, doctor.

Your Honor, I would object to any further discussion as far as his --

THE COURT: You may ask another question.

MR. LANG: Thank you.

Q (BY MR. LANG): Doctor, you have also provided advice to the defense attorneys in

this particular case discussing with them how to fashion their motion to get you

appointed as an expert, correct?

A Yes.

Q And you wrote a number of suggestions to defense counsel in this case to assist

them in retaining your services?

A Yes.

Q Doctor, your services will render you $3,000 for your work on this case; is that

correct?

A Probably. Probably. Iím not quite sure of what the -- is that over and above my

expenses?

Q Doctor, is it your understanding you will be receiving expenses paid for as well in

this case?

A Yes.

Q Hotel and airfare?

A Right.

Q As well as a set fee?
A Yes, yeah.

Q Doctor, Mr. Matzke in this particular case used --

MS. MCGINTY: I would just object to a set fee as a mischaracterization. I think heís

being paid an hourly fee.

THE COURT: You can clear that up on redirect.

MR. LANG: Actually, your Honor, I donít mind clearing that up now.

Q (BY MR. LANG): Doctor, do you know if you are being paid an hourly fee or a total

fee in this case?

A Now, as I understand I was going to be paid an hourly fee.

Q And what is your understanding of what that fee will be?

A I think youíre correct. I think itís going to come to $3,000.

Q $3,000 total?
A Yeah.

Q And do you expect that your services in this case have gone such a number of

hours that you will get that entire $3,000 or that you will bill that amount, I should

say?

A Yes.

Q Doctor, in this particular case you reviewed Mr. Matzkeís polygraph examination

and his test results, correct?

A Uh-huh.

Q Now, you had stated earlier --

A His examination results. I donít think itís a test. Itís an examination.

Q Okay. And doctor, I guess while weíre talking about that, your position on this as

not a test, is it fair to say that you are the only expert in North America who is

prepared to state the position as strongly as this, this is not a test?

A Yes, thatís correct.

Q And even Dr. Lykken -- how do you pronounce it?

A Lykken.

Q Even Dr. Lykken talks of the polygraph as a test?

A Yes.

Q Whereas you have argued that this is merely an unstructured interrogatory

interview and not a test at all?

A Right.

Q Doctor, are you aware of any other expert in your field in North America who

agrees that a polygraph is not a test or would state that to the degree that you do?

A No, Iím not.

Q Doctor, in this particular case --

A But can I elaborate?

Q If you feel that you must explain your answer.

A Yes.

Q I donít mind.

THE COURT: Yes.

THE WITNESS: My answer can be defended on the basis of elementary psychological

principles, principles which are taught in second year undergraduate psychology

when you deal with testing. So while it is true that to my knowledge Iím the only

expert in North America who says that, I have had no one produce any really

successful arguments against me on this issue, and people argue against me all the

time in public literature.

Q (BY MR. LANG) Some of those people who argue against you include Dr. Raskin; is

that correct?

A Yes. But Iím talking about opponents of the polygraph, so Dr. Raskin is not an

opponent of the polygraph. Thatís a different level of argument.

Q I understand that it is. Doctor, youíre vita and what you testified to earlier says that

you are a member of the Department of Defense Polygraph Institute external

curriculum review committee; is that correct?

A Yes.

Q And as a member of that committee, you endorsed the curriculum that is taught

there, correct?

A No.

Q You have no? Doctor --

A Endorse, advising means different from endorsing.

Q Doctor, you are on that committee with William Iacono; is that correct?

A Yes.

Q And Christopher Patrick?

A Right?

Q And I canít remember the other names; there are two or three other?

A Steven Poges and Edward Katkin.

Q There are five of you altogether, correct?

A I think so, yeah.

Q And in 1993 did that committee not provide an endorsement of the curriculum of

the Department of Defense Polygraph Institute?

A No.

Q Youíre saying that is untrue?

A Not if by endorsement you mean approval of the polygraph as a testing procedure.

Q Doctor, you did review the curriculum at the Department of Defense Polygraph

Institute, correct?

A Yes.

Q And you were asked to do so by that institute, correct?

A Yes.

Q And were you asked to provide an assessment of that curriculum?

A Yes.

Q And did you do so?

A Yes.

Q And did that curriculum include the controlled question test? Does that curriculum

include that?

A Yes, it does.

Q And is it not true that that is the only test, the controlled question test as itís

referred to -- Iím merely using the words that are used.

A Itís the only procedure, yeah.

Q That is the only procedure that is taught at the Department of Defense Polygraph

Institute, correct?

A No. Actually they do teach the guilty knowledge technique as well.

Q It is the only procedure that is taught for field use, correct?

A Yes.

Q And by field use, I mean actual investigatorís polygraph examiners in the field.

A Yeah.

Q Talking to suspects and conducting examinations with those suspects?

A Yeah.

Q The controlled question test the only technique that is used in the field by students

at the Department of Defense Polygraph Institute; is that correct?

A Yes.

Q Doctor, you also agree that worldwide the CQT is the most commonly used

polygraph examination in lay enforcement?

A Well, the worldwide is a bit peculiar, because except for North America and

Israel, most places in Europe, the CQT polygraph is regarded like an exercise

in tea leaf reading, but can I just answer the endorsement question? Could I

elaborate on that?

Q If you havenít finished that answer, please.

A Because I have to explain to you that when you are appointed as an advisor to a

committee like that, and you give advice, it doesnít mean that you endorse all the

procedures. My consistent advice to the Department of Defense Polygraph

Institute has been that they should separate the interrogation from the detection

component and that for interrogation they should teach the CQT, and anything

else that strikes their fancy, but for detection, they should move to the guilty

knowledge technique, and Iíve been quite open to the advice to the extent of

publishing a paper in 1993, which was called the polygrapherís dilemma, which

essentially argued that the polygraph, the CQT polygraph, is unusable for ethical

reasons, aside from anything else, and my co-author on that paper is an FBI

agent who went through the Department of Defense polygraph school and now

agrees with me.

So thereís in no sense do I endorse the curriculum in the sense that, you

know, I approve of the CQT, control question test. I gave advice as an academic,

as the other members did, in terms of increasing the academic respectability and the

research potential of that organization.

Q Doctor, you made these feelings and opinions known to the Department of

Defense at that time in 1993?

A Absolutely. They knew -- I mean I even gave a lecture to them the year before, I

think in 1992, on just saying what I did, saying that the CQT is simply and

interrogatory device and you should not use it for detection and even a videotape

of that lecture, so they knew my position very, very clearly.

Q And doctor, to this day they have not taken you up on your offer or your

suggestion; is that correct?

A Thatís right, they havenít done that. I mean I recognize that professionally it

would be very difficult to push that through, but that is still my advice and itís the

best advice that I can give.

Q And doctor, does your understanding that CQT is the only technique used in the

field in United States federal law enforcement today, correct?

A In North America, yes.

Q And in North America?

A Including Canada.

Q Thereís also the Canadian police research institute, correct?

A They also have a form of the CQT.

Q And by they, you mean all polygraph examiners in the country of Canada use

some form?

A Some form or the other.

Q Of the CQT?

A Right.

Q And doctor, that is worldwide, it is the most prevalent technique used in law

enforcement?

A Well, again, as I said, the worldwide is not right. For instance, Japan uses a

polygraph procedure but it does not use the CQT.

Q Are you certain of that, doctor?
A Yes. They call it a control question technique but itís quite different. It doesnít

have an interrogatory component. Iíve written about it in the --

Q Doctor, what I would propose, doctor, and I will do the same, is that you wait

till I complete a question and I will wait till you complete an answer. Can you

agree with that?

A Yeah. Iím trying to.

Q Thank you. Doctor, the Japanese have actually expressly indicated that they do

use a version of the CQT, correct?

A No.

Q They have actually --

A No. The Japanese use a technique which on the face of it has an appropriate

control. They do not use the North American CQT procedure.

Q Doctor, do they refer to it as a CQT, the Japanese?

A Well --

THE CLERK: Stateís pretrial exhibit 28 is marked for identification.

Q (BY MR. LANG) Doctor, Iím going to hand you whatís been marked as pretrial

exhibit number 28. Doctor, Iím going to ask you to look at that, and it is an

article entitled, Development of the Polygraph Technique, and if you could please

wait until I read this into the record.

MS. HIGGINS: Your Honor, could we see.

MR. LANG: I will provide it to the defense in a moment.

Q (BY MR. LANG) Development of the Polygraph Technique in Japan for

Detection of Deception. Doctor, are you familiar with that article.

A Yes.

Q And is it published in a journal called Forensic Science International; is that

correct?

A Yes.

Q And are you familiar with that journal?

A Yes.

Q Doctor, have you read this article?

A Sorry. Let me just -- no, not this particular article, no.

Q Doctor, would it surprise you to learn that in that article the authors refer to the

use in Japan of the CQT, that fact that most polygraph examiners do in fact use

the CQT together with the form of the GKT?

A No, it would not be surprising to me, because the term control is something

about which many people are confused.

Q Including presumably the authors of this particular article?

A Thatís right. And I do in fact know Yamamura is a polygrapher. Miyata is a very

eminent psychophysiologist whose lab Iíve visited.

Q And doctor --

MS. MCGINTY: If he could just finish his answer.

MR. LANG: I donít know if there was a question put before him, your Honor.

THE COURT: No. He may finish that statement.

Q (BY MR. LANG) Please go ahead.

A And in the book that I wrote with Ben-Shakhar on one of the chapters where we

discuss cultural differences and different usages, we indicate quite clearly that

although the Japanese refer to control question, their control question technique

is quite different from the North American CQT question, the main difference

being that the CQT involves interrogation as an integral component, and that the

so-called control questions are widely different from the relevant questions,

whereas in the Japanese version, the control questions are asked about a similar

crime but of which the subject is not accused.

Thatís why I said that the Japanese control makes more sense as control,

but the reason why I said that everybodyís confused is remember that I was

confused in -- before 1980. I thought that control meant normal sense of control.

Q And doctor, does your position that Mr. Miyata, who is a preeminent

psychophysiologist, is also still confused as of the writing of this article?

A Yes.

Q Doctor, so that weíre clear about what these authors are saying, I would ask you

to read page 268, the bracketed portion, please. Read it out loud into the record.

A In Japan, most of the polygraph examiners have tended to use the CQT together

with the CIT, which is considered to compliment each other. Though both

techniques -- through both techniques examiners are able to obtain polygraph

results and hence they are more confident in deciding outcome.

Q Doctor, the first portion of that is actually what I was mot interested in. In Japan,

most of the polygraph examiners have tended to use the CQT together with the

CIT. Is it your position that in Japan most polygraph examiners do not use the

CQT, either together with or separate from the CIT.

A Yeah. The CQT there I think is a misleading term.

Q So doctor, in what countries is the CQT, the test that we have been discussing,

not used?

A The procedure which weíre discussing.

Q Call it what you will, but please tell us what countries it is not used.

A Oh, in European countries.

Q In which countries?

A Except for Britain. I canít. All the countries in Europe. I mean all the countries

in Europe except for Britain.

Q And which version of the polygraph exam are used in those countries?

A Not used.

Q Iím sorry?

A They are not used. No version is used.

Q Doctor, in which countries, in which the polygraph examination or form thereof,

is used is the CQT not used? Itís not a very clear question. Iím going to reword

that.

A No. I think I can answer it.

Q Please go ahead.

A At the moment, to my knowledge, there isnít any polygraphic tests which is used

in the field and which rests on a scientific basis. There is a potential for such a

polygraphic test, and that is the guilty knowledge technique, but to my knowledge

this is not being used in the field. It has been in the laboratory and itís a

scientifically based test. You can specify the error rate, rate of error, and by the

way, unlike the CQT, which is used under all conditions -- thereís a limited set of

specifiable conditions under which this guilty knowledge technique may be used,

and the other feature of it is that for interrogation purposes, the guilty knowledge

technique is useless.

Q Doctor, Iíd like to ask you a question that Iíve asked you previously that I was

unclear about the answer. And my question is isnít it true that worldwide the CQT

is the most commonly used polygraph examination in law enforcement?

MS. MCGINTY: Objection. Asked and answered.

THE COURT: No. Iím not -- Iíll overrule the objection because Iím not sure --

THE WITNESS: Yeah. Okay.

THE COURT: -- myself.

THE WITNESS: The answer is yes, but itís a trivial yes because the CQT is used in

North America, most exclusively. Itís used in Israel and otherwise in Japan, as

I said, itís not really a CQT thatís used, and in the rest of the world, there are no

polygraphs used.

Q (BY MR. LANG) Iím sorry?

A There are no polygraphs used widely. There are no polygraphs used widely, W-I-D-E-L-Y. So what you say is true, but itís also relatively trivial.

Q Doctor --

A Can I just answer one more thing?

Q If that is a follow-up to this particular answer?

A It is a follow-up.

Q Please feel free.

A In Europe, graphology, analysis of handwriting to discover personality requirements, in Europe and including Israel, graphology is widely used, and it

would be true to say that throughout the world graphology, and the particular

method, letís call it method X, that method X is the most commonly used

worldwide. That would be trivial to say that, because graphology, at least to my

knowledge, I hope Iím right, is not used anywhere else except in Europe.

Q Doctor, the version of the CQT is also used throughout the federal government for

counter-intelligence espionage; is that correct?

A Yes.

Q And it is used by all --

A Iím sorry. Let me elaborate a little bit.

Q If you need to explain that answer, please do.

A The reason why I hesitated is that in counter-intelligence espionage and also I

think for public service, there is a looser form of the polygraph which is used.

Itís looser even in the CQT, and that is a general honesty assessment procedure,

and that was outlawed for non-civil cases by the US Senate in 1987, I think, but

itís still used in security and in industrial work.

So the reason why Iím hesitating about that answer is I donít know what

percentage conforms to a form of the CQT and what percentage is even worse,

that is the illegal industrial use. The difference is the CQT at least relates to a

specific issue, whether a crime has occurred, whereas this other thing is more

general honesty.

Q Have you completed your answer, doctor?

A Yes.

Q Doctor, in your opinion all confessions which follow a CQT polygraph

examination are coerced; is that correct?

MS. MCGINTY: Objection. That misstates the direct and would be beyond the scope.

THE COURT: The objection will be overruled. Itís a direct question.

THE WITNESS: The answer is no. Not -- it depends on what you mean by coerced. If

you mean that the coerced in the sense that the polygraph was not taken

genuinely voluntarily, then the answer is yes, that is that the person who agrees

to a polygraph agrees to a test; heís given an interrogation instead. So in that

sense, thereís coercion so thereís lack of voluntariness, but if you mean by

coerced that all confessions obtained following a polygraph are false because of

these pressures, then the answer is no. I donít know what percentage is false.

Q (BY MR. LANG) Doctor, do you have a copy of the interview that you gave to

Ms. Kalina and myself in January of this year?

A Yes, sir.

Q Could you -- turn your attention to page 26 of that interview.

A Yes.

Q Are you on that page?

A Yes, I am.

Q Doctor, Iíd like to refer to your attention to about midway through the page where

it says A, but if you are asking, do you see where Iím referring?

A Uh-huh.

Q Could you please read that entire paragraph out loud into the record?

MS. MCGINTY: Objection.

THE WITNESS: Do you want the question first?

MS. MCGINTY: Your Honor, objection. I donít think this is proper impeachment. I

think that having this witness just read portions of unadmitted material is

inappropriate.

MR. LANG: I donít mind admitting this particular material, your Honor, but I donít

believe thatís improper either.

MS. MCGINTY: Well, I would object to the form. I think that proper form is to ask

Dr. Furedy if this is his position and then impeach him if itís not. But just having

him read bits from articles or even his own interview is improper.

MR. LANG: Well, your Honor, Iíd feel free to read this but I can also -- I donít see a

particular problem with having Dr. Furedy read it either. Iíll defer to the Court.

THE COURT: Yeah. The objection will be sustained at this time. So you may proceed

by asking the question, and if the question is different than the prior answer,

then you can ask about that.

Q (BY MR. LANG) Doctor, is it not your position that close to 100 percent of

confessions induced by police following a polygraph are induced by police in the

sense that they are all a coercive procedure?

A Yes.

Q That is your position?

A Right.

Q And doctor, it is your position then that all confessions which occur following

a polygraph examination are coerced by the police; is that correct?

A Coerced not only by the police but by the situation in general.

Q And that situation in general means by taking a polygraph examination?

A No. The situation in general means that even though you have consented to what

you think is a test, you are actually faced with an interrogation, something which

is quite different to what youíve consented to. Therefore, itís a coercive or

involuntary situation in that sense.

Q So let me see if I get this straight. The person gives a coerced confession following

a polygraph because they have consented to what they believe was a test but was

in fact not a test; is that your testimony?

A Not just a test but an interrogation; an interrogation is something which is a

procedure which is designed to induce a confession.

Q Doctor, could you please define the word interrogation as you use it in your

testimony.

A What do you mean define?

THE COURT: Iím going to take -- we will take the afternoon recess at this time, and

we can pick up that question. We will resume in 15 minutes.

MS. MCGINTY: Your Honor, would it be appropriate to send my witness back?

THE COURT: No, it would not.

MS. MCGINTY: Do you think weíll finish?

THE COURT: Iím just not sure how long heís going to take and I want witnesses

available.

MS. MCGINTY: Thank you.

(Brief recess taken.)

 

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