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 isn’t 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 I’ve said before. It’s 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 hasn’t followed that relatively simple rule, it’s quite clear that he’s
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 Stahlman’s death? I’m 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 isn’t, 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 Stahlman’s death? And that is an adequate relevant
question by polygraph standards, because if the person is innocent and he answers
no, he’s 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 Stahlman’s 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 Stahlman’s 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. It’s going to be in terms of the anxiety
elicited by that question. Anyway, it’s not an adequate relevant question, even by
polygraphic standards, and what’s even more curious is that -- I said to you I
wouldn’t be analyzing the charts, but if you look at the scoring method, which is
a sheet that looks like this (indicating), and it’s 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: I’m 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. Matzke’s 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 Stahlman’s 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,
that’s fine.
THE COURT: The objection will be overruled, and if time is needed, time will be given.
THE WITNESS: I’m sorry. What was the question?
Q (BY MS. MCGINTY): Can you -- based on everything that you’ve reviewed, can you
say that the -- in this case Arthur Fegley’s 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 Stahlman’s death?
A No. In terms of the polygrapher’s 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 Fegley’s 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 polygrapher’s 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 Stahlman’s death, is that the
question?
A Yes. The question is did you see Glen Walker cause the injuries that resulted in
Bill Stahlman’s death?
Q All right. Why is that question inappropriate?
A It’s inappropriate because it doesn’t 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 I’m sorry. We’re 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 Stahlman’s 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 doesn’t -- it just doesn’t satisfy the requirement for a relevant question.
A relevant question has to be relevant to the crime and an innocent person’s
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 he’s lying and if he says no and he’s innocent, then he’s telling the truth. The
question about seeing doesn’t 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 can’t 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 there’s some confusion in the subject’s
mind, then the more emotion, the emotional light in the context is the less reliable
that confession’s going to be in terms of validation criteria.
Q Now, in test taking, what factors --
A I’m 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 that’s a general statement
than the other stuff I said was the case.
Q And you’re not able to evaluate whether that happened in this case or not; is that
right?
A Well, I can’t 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, I’m 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 there’s 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, it’s very likely that there’s 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 I’m 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, it’s quite common during the --
MR. LANG: Your Honor, I’ll 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, it’s 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 it’s 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, there’s concern that students are wrongly
classified; they’re 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 you’re not.
Q Is voluntariness an issue in test giving?
A In general test giving, it is a relatively minor issue, because for instance, when
you’re asked whether you’re willing to take an IQ test, there’s informed consent in
the sense that what you will be given is a real test. In the case of polygraph, even
if you’re well educated, even if you’re 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-’80’s, 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 there’s 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 -- I’m sorry. Had you not finished
your answer? I think you breathe and I just assume that you’re done. Are you --
A I have a comment to make about the degree of voluntariness as a function of the
situation.
MR. LANG: I’d 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 it’s 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, that’s test, and interrogation, there’s
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
what’s going on.
You see there’s 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 didn’t 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 there’s very little chance that someone who’s 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 it’s not as if it’s -- 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. It’s 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. That’s 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 there’s always a degree of moral guilt, but in this case,
there seems to be considerable --
MR. LANG: I’m sorry. I didn’t 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 didn’t 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 suspect’s 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 that’s what I’ve 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 person’s uneducated, unintelligent and inexperienced, and is also asked
complicated questions about what his test results are, which he can’t conceivably
answer, there’s a greater degree of involuntariness involved, because there’s just
no -- the person doesn’t know what is going on.
MS. MCGINTY: Thank you. Just one second.
That’s all I have, your Honor.
THE COURT: You may inquire.
CROSS-EXAMINATION
BY MR. LANG:
Q Do you need any water, doctor?
A No. I’m okay. Thanks.
Q Good afternoon.
A Hi.
Q Doctor, you’re not a forensic psychologist, are you?
A No.
Q You’re 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 you’re 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, I’m not an expert in the art of interrogation.
Q Doctor, you have never conducted a live polygraph examination yourself, have
you?
A No. I’ve 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 it’s not --
Q So it’s 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 I’m sorry. I was an expert. It’s 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. It’s my opinion that the confession was involuntary because of
the general reasons that I’ve talked about being involuntary, no necessarily because
I’ve 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 master’s program?
A Master’s and Ph.D. The answer to that question is yes because I’ve 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 I’ve 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, I’m sorry, it’s not testing,
polygraphic examination.
Q Have you ever attended polygraph school in the United States?
A No.
Q Are you aware -- I’m 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 It’s near Alabama.
MS. MCGINTY: I’m sorry. I didn’t 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, we’ll get to that in just a minute. I’d like to finish up with
this particular area. Have you attended polygraph school in either the United
States or Canada?
A No. I’ve 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 that’s not what supports my conclusions regarding the polygraph.
Q And we’ll get to those in a few minutes. Thank you, doctor. Doctor, you’ve been
a practicing psychologist since approximately 1965; is that correct?
A No. It’s incorrect. I’ve not been practicing as a psychologist at all. I have been a
professor of psychology since 1967. That’s 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 you’ve 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 haven’t worked with the polygraph issue with this purported
application of psychophysiology. I only started doing that in the mid-’80’s.
Q Doctor, you’ve been consulted in approximately six cases overall; is that correct?
A No. I think it’s 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 don’t. Maybe it’s six; I mean I said maybe it’s nine. I can’t -- I mean at the
phone call, I was pretty vague about the exact number. It’s 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-’80’s, 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 we’ll get to the next
one.
A No. Wait a second. Is that a prosecution? The Marshall Commission, it’s 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 it’s not for the prosecution but it’s 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 it’s
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, there’s
no reason for me to write such an article.
Q Doctor -- I’m sorry.
A In this case, you make it sound as if I was sort of writing a book for various
people. That’s 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. I’m 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 he’s
being paid an hourly fee.
THE COURT: You can clear that up on redirect.
MR. LANG: Actually, your Honor, I don’t 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 you’re correct. I think it’s 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. Matzke’s polygraph examination
and his test results, correct?
A Uh-huh.
Q Now, you had stated earlier --
A His examination results. I don’t think it’s a test. It’s an examination.
Q Okay. And doctor, I guess while we’re 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, that’s 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, I’m 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 don’t 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 I’m 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 I’m talking about opponents of the polygraph, so Dr. Raskin is not an
opponent of the polygraph. That’s a different level of argument.
Q I understand that it is. Doctor, you’re 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 can’t 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 You’re 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 it’s
referred to -- I’m merely using the words that are used.
A It’s 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 investigator’s 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 haven’t 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 doesn’t 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 I’ve been quite open to the advice to the extent of
publishing a paper in 1993, which was called the polygrapher’s 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 there’s 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 That’s right, they haven’t done that. I mean I recognize that professionally it
would be very difficult to push that through, but that is still my advice and it’s 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 There’s 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 it’s quite different. It doesn’t
have an interrogatory component. I’ve 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. I’m 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: State’s pretrial exhibit 28 is marked for identification.
Q (BY MR. LANG) Doctor, I’m going to hand you what’s been marked as pretrial
exhibit number 28. Doctor, I’m 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 That’s right. And I do in fact know Yamamura is a polygrapher. Miyata is a very
eminent psychophysiologist whose lab I’ve visited.
Q And doctor --
MS. MCGINTY: If he could just finish his answer.
MR. LANG: I don’t 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.
That’s why I said that the Japanese control makes more sense as control,
but the reason why I said that everybody’s 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 we’re 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 we’re 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 can’t. 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 I’m 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? It’s not a very clear question. I’m going to reword
that.
A No. I think I can answer it.
Q Please go ahead.
A At the moment, to my knowledge, there isn’t 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 it’s 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 -- there’s 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, I’d like to ask you a question that I’ve asked you previously that I was
unclear about the answer. And my question is isn’t 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. I’m not -- I’ll overrule the objection because I’m not sure --
THE WITNESS: Yeah. Okay.
THE COURT: -- myself.
THE WITNESS: The answer is yes, but it’s a trivial yes because the CQT is used in
North America, most exclusively. It’s used in Israel and otherwise in Japan, as
I said, it’s not really a CQT that’s used, and in the rest of the world, there are no
polygraphs used.
Q (BY MR. LANG) I’m 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 it’s 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, let’s 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 I’m 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 I’m 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.
It’s 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
it’s still used in security and in industrial work.
So the reason why I’m hesitating about that answer is I don’t 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. It’s 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; he’s given an interrogation instead. So in that
sense, there’s coercion so there’s 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 don’t 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, I’d 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 I’m 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 don’t think this is proper impeachment. I
think that having this witness just read portions of unadmitted material is
inappropriate.
MR. LANG: I don’t mind admitting this particular material, your Honor, but I don’t
believe that’s 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 it’s not. But just having
him read bits from articles or even his own interview is improper.
MR. LANG: Well, your Honor, I’d feel free to read this but I can also -- I don’t see a
particular problem with having Dr. Furedy read it either. I’ll 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 you’ve consented to. Therefore, it’s 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: I’m 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 we’ll finish?
THE COURT: I’m just not sure how long he’s going to take and I want witnesses
available.
MS. MCGINTY: Thank you.
(Brief recess taken.)
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