THE COURT: All right. You may proceed.
Q (BY MR. LANG) Let me know if you need any more. Doctor, before the break I
asked you to define the term interrogation as you used it in your testimony, and
Iíd like you to please define that term.
A Yeah. An interrogation is a procedure where you conduct an interview, the
primary purpose of which is to have the person come up with a confession.
Q Doctor, is it your opinion that in interviews -- that all interviews which follow a
polygraph are in fact interrogations?
A Yes, because yes, all interviews which follow a polygraph, and that is following
either an inconclusive or a deceptive outcome, are interrogations, yes.
MS. MCGINTY: If I could just ask the witness to speak up and enunciate.
THE WITNESS: Iím sorry.
MS. MCGINTY: Thank you.
THE WITNESS: Do you want me to repeat it?
MS. MCGINTY: No. I think I figured that out.
Q (BY MR. LANG) Doctor, is it your opinion then that both polygraph examiners and
police officers should never interview a person who has just completed a polygraph
Q In what circumstances do you see that it is appropriate for someone to interview
a person after a polygraph examination?
A I have to answer that question by reminding you of the difference between the
detection and the interrogation function. If in terms of the detection function,
there are no appropriate circumstances if your object is to find out whether the
subject has been deceptive. In terms of an interrogation function, there are no
scientific rules for interrogation. So if your object is to interrogate, that is to induce
a confession, then by all means you can interview all you like.
Q Doctor, is it not also proper to conduct an exploratory interview after a
polygraph examination is scored to be inconclusive?
A The -- I have no opinion on the properness of it because I have no strong opinion
on the appropriateness of interrogation, but --
Q Please go ahead.
A Sorry. But if youíre asking me from the point of view of detection, then you have
to recognize that the post-inconclusive interview will have a confounding effect
on any future polygraph examinations because the relevant questionsí emotional
impact will be heightened by what goes on in the interview. On the other hand,
if your aim is the interrogatory one of inducing a confession, then by all means
you can do it following an inconclusive outcome and you could even do it
following a truthful outcome.
Q Doctor, is it not true that the Department of Defense Polygraph Institute does
in fact teach that after an inconclusive polygraph examination, an exploratory
interview with the examinee is permissible?
A Sure, but remember that the Department of Defense Polygraph Institute considers
the CQT as a genuine psychological test and they do not distinguish between
its detecting function and its interrogatory function.
Q And it is your position that they should not be teaching this?
A Teaching what?
Q That an exploratory interview is permissible after an inconclusive polygraph
A Well, it is my position that they should not be mixing up the detection and the
interrogatory function of the polygraph, and therefore to that extent they should
not be teaching it.
Q Doctor, is a pretest interview of an examinee permissible in all situations, before
all polygraph examinations.
A Yes. Itís not a question of to what extent does it contribute positively or
negatively to the detection function in the polygraph, of the polygraph, and it is
my position that anything which doesnít contribute to the clarity of understanding
of the relevant and so-called control questions is going to have a negative impact
on the detection function of the polygraph such as it is, and as Iíve indicated to
you, in my professional opinion it doesnít have really adequate detection function.
Q So, doctor, is it your opinion in this particular case, the case of Arthur Fegley,
Mr. Matzke did not properly conduct a pretest interview of the defendant?
A No. As I said to you, since there are no recordings of what he in fact did, and
in fact he repeats several times not only does he not remember what he did, he
doesnít even care about it, I canít say anything about proper conduct in terms of
lack of specifics. I can say that in terms of some of those questions which are
asked about say the medical condition and so on, those are at best irrelevant to
the question of clarifying the relevant and so-called control questions?
Q Doctor, is it your opinion that Mr. Matzke asked any pretest questions which
subsequently affected the voluntariness of Mr. Fegleyís statements?
MS. MCGINTY: Objection, you Honor. This expert hasnít been asked to reach an
opinion on the voluntariness of Mr. Fegleyís statements.
THE COURT: And youíre asking does he have an opinion?
MR. LANG: I am.
THE COURT: Overruled. Iíll allow that.
MS. MCGINTY: The other objection is I think that voluntary needs to be defined. I think
Mr. Langís definition of voluntary as a lawyer may well be different than Dr.
Furedyís definition of voluntary.
THE COURT: And that can be cleared up on redirect or cleared up by Dr. Furedy in his
THE WITNESS: Well, the reason why I find it hard to answer is that I do not know what
went on in the pretest interview since neither -- not even notes are available, let
alone a taping. So if youíre asking me is it my opinion that questions asked had a
certain effect, itís very difficult to tell since thereís no evidence. However, to the
extent that Mr. Fegley had some idea that he was going to be given a test, like
an IQ test, and I donít even know how long the pretest interview was, to the
extent the pretest interview went into other things which seemed to be irrelevant
to the question of formulating the relevant and the so-called control questions,
to that extent thereís a sense of involuntariness there in the sense that the examinee
is not receiving the treatment to which he consented, which is a test like an IQ test.
Q (BY MR. LANG) So doctor, when you refer to the involuntariness of a personís
consent, are you also attributing that involuntariness to subsequent statements to
police officers or are you simply limiting it to the polygraph?
A No. Iím attributing it to subsequent statements, because one effect of the
polygraph examination is to induce a confession and given thatís a given that a
confession has been induced, obviously that confession is going to influence how
the person interacts with other police officers, especially as in this case, as I
understand it, strangely enough, the police officers were brought in in the middle
of the so-called post-test interview.
Q And doctor, is it your position that is improper?
A Itís unusual in terms of normal polygraphic practice, where normally the
polygrapher is in a one-on-one situation with the examinee until the end of the
examination, and if a confession is induced, then the examinee goes to the police
and makes his or her confession.
Q Doctor, are there any studies -- Iím sorry.
Q Are there any studies or data which supports this statement that you just made,
that it is unusual for police officers to come into a post-polygraph interrogation?
A Well, there are no studies and no data because itís not possible to gather
systematic data on an unstructured interrogatory interview situation. Can I?
Q Please do? Are you finished?
A No. But in terms of my readings of polygraphic textbooks and what Iíve seen,
the usual recommendation is to have that one-on-one relationship.
Q Doctor, what textbook says this?
A The Reid, the one that Reid has written, for instance.
Q And doctor, in how many polygraph examinations that you yourself have
reviewed, in how many of those did the police officers come in to an examination
in the post-test interview?
A None that I have reviewed.
Q And how many have you reviewed?
A Iíd say about 10 or 15.
Q Doctor --
A But I think more importantly, itís not a question of how many Iíve reviewed.
Itís a question more of reading about the polygraph procedure, and the polygraph
procedure in these textbooks is stated that the examiner and the examinee are in
a one-on-one relationship.
Q Doctor, you referred on your direct examination to 10,000 charts that you
reviewed. Can you describe what you mean by charts that you reviewed. I was
A I mean charts, charts not in a polygraphic sense, in a psychophysiological sense.
Psychophysiology is the study of psychological process using physiological,
psychophysiological changes. In order to assess these psychophysiological
changes, you have to output them, you have to amplify them and put them on a
moving recorder which is called the polygraph., that is the many channel
recorder, and starting with my research in 1963, when I started psychophysiological research, I have looked at many, many psychophysiological
records or charts.
Q Doctor, how many of those charts were polygraph charts?
A Very, very few. I mean polygraph in the sense of you sense of polygraph, very
few. These are psychophysiological charts.
Q Can you give us an estimation of how many were polygraph charts?
A Iíve told you that already. You asked me about how many polygraphs which I
looked at and itís about 15.
Q 15 in the total sense of your career, those are -- and Iím trying to distinguish for
myself the charts that you said you reviewed and then the polygraph examinations
you said you reviewed.
A Let me do it for you.
Q Please do.
A The things Iíve said, psychophysiology is the science which uses these recorded
physiological changes to study psychological processes. So every time an
experimental psychophysiologist runs an experiment, he produces many of these
charts, all right. I have been engaged in psychophysiology since 1963 and therefore
Iíve reviewed many of these charts. Iíve only looked at the purported application
of psychophysiology in the polygraph since the mid-í80ís, and done so in a limited
way in terms of my time, because Iíve been continuing in my psychophysiological
investigations, and so Iíve looked at about 15 polygraph charts, but thereís nothing
magical about those polygraph charts. They are all psychophysiological charts,
that is they all indicate the effect of a stimulus on physiological respondee.
In the case of my own work, the responses which Iíve discussed are
responses in the autonomic nervous system like heart rate, skin conductance,
T-wave ampature, in the case of the CQT, the physiological responses which
polygraphers typically look at are skin resistance change, relative blood pressure,
and two channels for respiration, and they put out the same sort of recordings
as a psychophysiologist looks at.
The stimulus is the question, two sorts of stimuli which weíve talked
about here which are the so-called control questions and the responses. Iím
quite familiar and I have looked at 10,000 such psychophysiological charts. The
charts put out by the polygraphers is just one specific subset of those charts.
Q Doctor, you talked about the concept of moral guilt in your direct examination.
Do you recall that?
Q How do you distinguish, you yourself, distinguish between moral guilt and real
A I donít. I distinguish between moral guilt and criminal guilt.
Q And how do you distinguish between those?
A Criminal guilt is the guilt that comes from having committed the crime of which
you are accused. Moral guilt comes from feelings of guilt associated with that
event. So sometimes of course if you have actually done the crime, then the event
is the same, but sometimes if you havenít done the crime, but have been
associated with it in some way, have been a partial agent, then youíre going to
feel moral guilt.
The example I gave with my own hypothetical is being in trust of $10,000,
being accused of the crime of stealing it, whereas in fact I was only morally guilty
of negligence of not taking sufficient care of it. In this case the distinction would
be -- no. I think thatís sufficient. Go ahead.
Q Doctor, are you yourself able to distinguish -- in the cases youíve examined, are
you able to distinguish between moral guilt and criminal guilt to a reasonable
degree of scientific certainty?
A No, not to any -- I can distinguish between them conceptually. I cannot distinguish
them to the extent of saying that in this particular case there was so much moral
guilt and there was so much criminal guilt. If I were able to do that, then I would
be able to have a strong opinion on whether the person was actually guilty or not.
Q Probably be able to charge some more money too, probably?
A Well, yeah, or I mean yeah, if I could convince people of that, I could probably
charge a lot more money.
Q So doctor, is it -- youíre not suggesting then that you are able to make that
distinction in this particular case, are you, to any reasonable degree of scientific
A No. I am -- Iím saying that I can make the distinction conceptually in such a way
that I think all of us in this room understand what the distinction is, that is the
distinction between moral guilt, letís take this particular case, I think all of the
people in this room understand the distinction between watching that crime being
committed and actually committing the crime, but nobody in this room I think can
know that to any degree of certainty whether the crime was actually committed
in this case, and of course itís the job of the judge and the jury, I understand, to
make that determination.
Q And doctor, are you able to state to a reasonable degree of scientific certainty then
the effect of moral guilt upon Mr. Fegleyís subsequent admissions in this case,
A Again, I canít tell you whether Mr. Fegley was definitely making a false
confession or true confession, but I can say that the reliability of that confession
would be seriously interfered with by the fact that in this case the confusion
between moral and criminal guilt seems to be considerable, because the scope for
moral gilt in this case seems to be considerable, that is watching -- that is when
youíre six foot two and weigh 280 pounds, I guess, this assumes youíre innocent,
and you watch somebody, one of your associates , murder someone else without
doing anything, it seems reasonable, just on common sense grounds, that thereís
going to be considerable moral guilt involved and therefore there may well be
confusion between moral and criminal guilt, but I caní tell you, I have no
scientific opinion as to whether he in fact did the crime or not.
Q So doctor, letís assume for a minute that heís guilty, as you just assumed that
he is innocent, what is the effect of moral guilt upon his post-polygraph
A If heís guilty?
A Again, whether heís guilty or innocent, thereís going to be a confusion
between moral guilt and criminal guilt, even if he did it, this doesnít mean that
he did it, there would still be a confusion between moral guilt and criminal guilt.
Q And why is that?
A Well, because it is not -- you do not get the Nobel Prize or the congressional
-- you donít get the congressional medal for standing around watching somebody
else kill somebody else, just as you donít get the congressional medal of course,
for killing somebody else under these conditions.
Q Doctor, what studies have been done on the effect of moral guilt upon post-
A Oh, none again because the whole polygraphic situation is unresearchable. So.
Q Doctor, in your opinion how many confessions which occur after a polygraph are
caused by moral guilt?
A Nobody knows that.
Q Doctor, how many of the 10 to 15 polygraph cases that you have reviewed did you
review to determine the impact of moral guilt upon those confessions?
A None, if youíre saying to determine how much of an impact. I reviewed --
I reviewed those cases in terms of the possible presence of moral guilt, and in
terms of those 10 or 15 cases Iíve dealt with, I would say that this case seems
to be the strongest in terms of potential moral guilt.
Q This case meaning Mr. Fegleyís case?
A Mr. Fegleyís case seems to be the strongest.
Q And is that assuming that he is innocent?
A Yeah, thatís assuming, yeah, yeah, yeah, assuming heís innocent.
Q Doctor --
A Which I donít know.
Q All right. Doctor, you also talked about emotional heightening that occurs before
a polygraph. Do you recall that testimony?
Q Now, is emotional heightening greater in a confession which follows a polygraph
examination than in just a standard police questioning on a homicide case? By that
I mean just questioning without a polygraph exam where police just talk to
A Yeah, yeah. I think itís likely to be higher, especially after a deceptive outcome or
even inconclusive, I suppose, because in the case of the police -- in the case of the
polygraph, part of the polygraph procedure is to convince the examinee that
thereís this magic machine which, together with the examiner, cannot be fooled.
So once the examinee gets a result that the machine says that he or she is lying
about the specific issue, then thatís likely to increase the emotionality about the
issue more than if theyíre questioned by me a mortal without this paraphernalia.
Thatís why, as Iíve written in a number of cases, and most people agree
with me on this, even if they say the polygraph is a test, the polygraph is an
enormous tool used for prop for interrogation.
Q Doctor, what data supports the use of the polygraph to emotionally or which to
contribute to emotional heightening? Are there studies that have been done that
talk about the polygraph as an emotional heightening?
A Again, itís like -- you know, the polygraph itself is so unspecific that there have
been no systematic studies done on this, but there have been plenty of studies done
that the more -- the more emotional context of the stimulus is, the bigger
response you get to the stimulus.
Q Doctor, when a person is brought in for questioning on a homicide, is it your
opinion that their emotions are immediately heightened?
A Just from the questions you mean?
Q Yes, just by the mere fact of being brought in.
A Oh, yes.
Q Are you --
A Can I just elaborate a little?
Q If you feel you need to. Please remember the time.
A Okay. Itís not so much a question of overall emotional level; itís a question of
emotion associated with the relevant question.
Q Have you completed your answer?
Q Doctor, are you suggesting that police never interview witnesses or suspects in
A Absolutely not. I have no systematic option to the interrogation as a method. All
Iím opposed to is the mixing up interrogation with detection. Thatís why I
recommended to the polygraph school that they do separate interrogation and
detection and teach them both.
Q Doctor, at what point in this particular case did the defendantís emotions
heighten to a degree where he gave an involuntary consent to a polygraph
MS. MCGINTY: Objection. Beyond the scope. He was not asked this question.
THE COURT: I will sustain the objection to the form of the question.
Q (BY MR. LANG) Doctor, at what point did the defendantís emotions heighten in
this particular case?
MS. MCGINTY: Objection as to scope. He was not asked this on direct.
THE COURT: The objection is overruled.
THE WITNESS: So what are you -- could you repeat the question?
Q (BY MR. LANG) Doctor, did you review this particular case to determine at what point
the defendantís emotions were heightened?
A No. Because thatís not -- the point is that as -- just as a function of the whole
context, the emotionality attached to the relevant question is greater than the
emotionality attached to the so-called control question. And as a result of
experience with the first polygraph, the post-test so-called interview, where he
makes a confession, the amount of emotionality attached to the relevant question
There is no magic point at which emotionality switches in. Itís just that as
a function of the context, as the procedures go on, as the polygraph examination
is repeated, thereís more and more significance or emotionality attaching to the
Q Doctor --
A Which is unrelated to guilt or innocence.
Q Have you completed your answer?
A Yes. Sorry.
Q Doctor, you talked for a time on direct examination about the form of the
questions that were asked of the defendant in the control and relevant questions.
Do you recall that discussion you had, that there was some improper --
A We talked about the control and then the relevant questions. They were separate.
Q That there was some improperly formed questions in your opinion?
A I said there was one improperly formed question that is a relevant question. I said
that the control question were not improperly formed. They are properly formed
but they were poorly chosen on the face of it if the aim was to attain an
emotionality which is at all comparable to the emotionality attained by the
Q And doctor, is it your opinion and are you stating an opinion that this relevant
question that was improperly formed also contributed to the involuntariness of the
defendantís statements in this case?
A No. What I was using that to illustrate, to suggest, was that the examiner was so
unconcerned with the detection function of the polygraph that he didnít even take
the trouble to properly form one of the relevant question, as well as not taking the
trouble to generate some so-called control questions, which at least would have
some surface validity.
Q I see. And so youíre not offering an opinion that the formulation of these questions
somehow led to a false confession in this case, the form of the questions?
A Iím sorry. I should -- I also have the opinion that the more that the polygraph
is a poorly interrogatory situation and the less that it is a detection situation,
the less there is voluntariness because the less there is any sort of test or detection
going on. All that is going on is interrogation. So the more interrogative the whole
procedure is, the less voluntariness there is, because what the subject is consented
to is a test.
Now, I think the evidence of an improperly formed relevant question and
poorly formed so-called control questions, all indicate that interrogation was
going on to the exclusion of the detection. And by the way, I think that this
problem of voluntariness, as I think I said, the less the examiner is aware of the
distinction between interrogation and detection, the less voluntariness there is,
because you have a situation where not only does the examinee not know what is
happening, but the examiner also doesnít know whatís happening.
Q have you completed your answer?
Q So you refer to voluntariness in this particular case. Are you referring to the
voluntariness of the defendantís statements to police officers?
Q What are you -- when you used the word voluntariness, what are you referring to?
A Iím referring to informed consent.
Q Informed consent to take the polygraph examination; is that correct?
A Well, yeah, informed consent -- the consent -- the informed consent is informed
consent to take a test, a polygraph test, which is like an IQ test, but in fact it is
uninformed consent and therefore not voluntary, because what is actually going
on is an interrogation. What is actually going on is an interrogation.
Q So doctor, are you offering an opinion in this case on the voluntariness of the
defendantís statements to the police officers in this case?
MS. MCGINTY: Objection, your Honor.
MR. LANG: Iím trying to clear up this area, you Honor. Iím very confused at this point.
THE COURT: The objection is overruled. Thatís just a yes-or-no question.
THE WITNESS: Yes.
Q (BY MR. LANG) You are?
Q And what is your opinion on the voluntariness of the defendantís statements to the
police officers in this case?
A My opinion is that it is relatively involuntary because the consent was almost
Q Doctor, what studies have been done about uniformed consent contributing to
involuntary statements to police officers?
A Again, there have been no systematic studies done in this area, but in all
psychological experiments at universities using human subjects, you have to insure
that the subjects are volunteers, and part of that insurance is that you have to
provide them with a consent form, which describes accurately what is going to
happen. If anyone provided a consent form which is so totally I say misleading
as is used in the polygraph situation, no university ethics committee would permit
that experiment to be carried out. It would be classified as involuntary.
That university committee does not need lost of studies on the effects of
this or that. It is quite clear that it is involuntary since there has been no informed
consent. You canít volunteer for something when you think itís A and it turns out
to be B.
Q Doctor, you would agree that there is no adequate research or data on the issue
of involuntary confessions, would you not?
A Oh, yeah. Thereís also no adequate data on the frequency of false confessions.
Q And there is no hard data on the rate of involuntary confessions either?
Q Doctor, you refer to the consent that is given in a particular case. Have you
reviewed the consent forms that were signed by Mr. Fegley in this case?
Q You have?
Q So you are aware that Mr. Fegley agreed not only to the polygraph examination
but to the interview with this examination, are you aware of that?
Q And are you saying that he did not give informed consent to the interviews
associated with the polygraph examinations?
A He was -- he was told that he would be taking a polygraph test and yes, yeah.
Q It is your opinion and you are stating that to a reasonable degree of scientific
certainty that the defendant did not give informed consent to the interview
associated with the polygraph examination?
A Can I have a look at this form again?
Q Yes. I will give it to you.
Q Iím going to hand you whatís been admitted as Stateís exhibits 18 and 21 and Iíll
ask you to read the bottom paragraph on each of those.
Q Now, doctor, before you go on, what Iíd like to know is have you reviewed those
A Yes, Iíve looked at them.
Q You have seen these?
Q They were provided to you?
A Right, yeah.
Q Now, my question was are you stating to a reasonable degree of scientific certainty
that the defendant did not give informed consent to the interviews associated
with the polygraph examinations he took in this case?
A Yes, I am.
Q And what is the basis for that?
A My basis for that is that even if the term interview is used here, the subject -- the
examinee has no clear idea of the nature of that interview, the duration of that
interview and so on. If Mr. Fegley had been well educated and sophisticated,
itís conceivable that he might have asked questions about the nature of the
interview, and if this was submitted to a university, suppose you were going to do
a laboratory study of a polygraph, this would be ruled to be completely
insufficient given that you know that in fact that interview is actually going to
be and interrogatory interview of indefinite length and so on.
Q Doctor, youíve talked about the defendantís education. What is your understanding of the defendantís education level?
A Well, since heís 16 or 17, I presume he hasnít reached the college level.
Q What is the last grade in school he has completed.
A Iím not sure.
Q Have you reviewed any of the defendantís educational background?
A No, no. Just the fact that heís 16 or 17 is sufficient for me in this situation.
Q Doctor, you on direct examination refer to the defendantís low intelligence.
Do you recall stating that?
Q What is the defendantís IQ level?
A Iím not quite sure. I havenít reviewed the exact --
Q What --
A I think itís less than a hundred, but thatís about all.
Q Have you reviewed any of the clinical testing done on the defendant?
A No, no.
Q Have you asked for any such data?
Q And in your opinion that data is not important to your opinion; is that correct?
A Since all I claim is relatively low, so Iím not making a very specific claim, it isnít
Q Doctor, are you able to state to a reasonable degree of scientific certainty that the
defendantís IQ is below 100?
MS. MCGINTY: Objection, your Honor. This is way beyond the scope in that the
defense never even put on evidence that Dr. Furedy has even talked to Mr. Fegley.
THE COURT: It is cross-examination of an expert. It will be allowed.
THE WITNESS: No. I mean my only source of evidence for that has been the statement
of the lawyers to me, that he is low intelligence so I took that as a given.
Q (BY MR. LANG) And what did his lawyers tell you about his intellectual level?
A Relatively low intelligence.
Q Are those the precise words that they used?
A I canít recall exactly but I think so, yeah, earliest letters.
Q And that phrase, relatively low intelligence, is all that you needed in terms of your
opinion in this case?
A Yes, because my -- because intelligence and education are only one of the factors.
In many other cases the person is fine intelligence and high education yet they
still fall into this trap.
Q So doctor, it is your opinion that intelligence is not really relevant then?
A No. I didnítí say that. I said it is one of the relevant factors. Itís not one of the
most powerful factors but it is a relevant factor and since itís only one of many
relevant factors and since I had limited time in preparing for this case, I didnít
start looking into the issue of whether he scored 95 or 105 or 85. You obviously
know -- well, anyway.
Q Doctor, you say you have had limited time to prepare this case. You were first
contacted on this case in June of 1995, were you not?
Q And eight months was not sufficient time to learn the defendantís intelligence level?
MS. MCGINTY: Objection. Argumentative.
THE COURT: Iíll sustain the objection.
THE WITNESS: Can I answer anyway?
THE COURT: No. Iíve sustained the objection. Itís been made.
THE WITNESS: Okay.
THE COURT: Thank you.
Q (BY MR. LANG) Doctor, could you please relate to us all the field studies that have
been done on suspects in criminal cases where false confessions followed a
A No. There probably are not field studies of that. The rate of false confessions, as
Iíve said, is very difficult to establish.
Q And why is that?
A Because the ground truth criteria are very difficult to establish. Dr. Raskin, along
with polygraphers, believes that all confessions are true, which is false, of course.
On the other hand, Lykken has written in his 1981 book that there are lots of
documented cases of false confession and he refers to a book by, Iíve forgotten
his name, legal authority in the Ď50ís, and he says there are 30 cases of documented
false confessions, but when you look that book up, it turns out that they are false
convictions, not false confessions.
Q Which book are you referring to?
A Well, like I said, I canít remember offhand.
Q Doctor --
A But the point is that there are, to my knowledge anyway, there are no satisfactory
studies of the rate of false confessions.
Q Doctor, are you aware of any studies done where an involuntary confession
followed a polygraph examination?
A No, no.
Q Doctor, how many criminal suspects have you interviewed who claimed to have
given a false confession following a polygraph examination?
Q How many have you interviewed who claim to have given an involuntary
confession following a polygraph examination?
Q And in your preparation for this case, did you not interview the defendant, did
Q You are not aware of the defendantís demeanor during the course of the
interrogations or investigation -- excuse me, interrogations or interviews in this
case, are you?
Q Have you listened to the tape recorded statements given by the defendant to the
police in this case?
Q And they I take it are not relevant to your opinion in this case?
Q The defendantís demeanor throughout the course of these interviews is not
relevant to your opinion in this case?
Q Doctor, you would agree that working in the area of the polygraph is a controversial area, would you not?
Q And you have felt nervous in the past in working in the particular area, have you
A What do you mean nervous?
Q Well, perhaps I should refer you to the textbook chapter that you wrote, and Iíll
have you explain your words.
A Right. Okay.
MR. LANG: Have it marked, please.
THE CLERK: Stateís pretrial exhibit 29 is marked for identification.
Q (BY MR. LANG) Doctor, Iím going to hand you whatís been marked as Stateís
exhibit number 29.
Q The front page is a copy of the cover of a textbook. Do you recognize the
A Yes, yes.
Q And you actually are the author of chapter 25 in that textbook?
Q That is the chapter that you refer to in your direct examination?
Q You wrote that chapter in 1986; is that correct?
Q Doctor, could I refer your attention to page 699 of that chapter, please. There is
a section marked and circled. Do you see that section?
MS. MCGINTY: Excuse me. Do you have a copy for us? Your Honor, could we have a
copy of that?
MR. LANG: Doctor -- they are this witnessís own materials. I did not make a copy
for the defense attorney.
THE COURT: You may proceed. If itís used, you can have it and look at it.
Q (BY MR. LANG) Doctor, in that particular chapter did you not agree that you were
nervous working in this area?
Q Doctor --
MS. MCGINTY: Objection, your Honor. I would ask that he be allowed to finish his
THE COURT: No. The witness needs to respond directly to the question. If it needs to
be cleared up on cross-examination or direct examination, redirect, you can. But
we are looking at some very tight time lines here.
MR. LANG: Thank you, your Honor.
Q (BY MR. LANG) Doctor, did you not also agree that you did not have as much
authority in the area of polygraphs as some of the other authors of other chapters
in that book?
A At that time, yes, because this was the first time I had written and thought about
the polygraph. This was my virgin paper.
Q Doctor, this was in 1986?
A It was published in 1986. I wrote it around 1983.
Q And doctor, in 1986 was the same year that you wrote the article referring to
countering confessions following the polygraph examination?
A The publication lag for at least these textbooks unfortunately is huge. I think I may
have even written it in 1982, whereas the publication lag for that criminal law
journal was smaller.
Q Doctor, my question to you was 1986 was the same year that you published the
article entitled, Countering Confessions Obtained After the Polygraph?
A Yes. But I wrote that in 1985, as I wrote this around 1982.
Q And doctor, in 1982, after you became involved in this area, when you wrote this
chapter, you did concede that you felt nervous writing in this area, correct?
Q And did you concede that you did not have a very -- you did not have the -- as
much authority in this area as other writers or authors of this textbook, correct?
A Because other areas are much less controversial. They are much more
straightforward than the polygraph. In other areas, when somebody says control,
you know what they mean. When somebody says test, you know what they mean.
When somebody says quantify, you know what they mean. In this area, all these
terms have an Alice in Wonderland meaning. Thatís why itís so controversial.
Q Doctor, the title of that, Lie Detection as Psychophysiological Differential, has
some fine lines, correct?
Q And the chapter was about the lie detector, correct?
Q And you felt free of you felt sufficiently knowledgeable in this area to contribute
to a textbook in this area, correct?
Q And yet you also agree that you were nervous about writing in that area and you
did not have as much authority as other people writing in that textbook, correct?
A On other topics, as Iíve said to you.
Q Doctor, you have been criticized -- you talked about some controversies youíve
been involved in in the beginning of your direct examination, correct? Actually
may I have that exhibit, please.
MR. LANG: Your Honor, I would move to admit this exhibit. It is number 29.
THE COURT: Show it to counsel.
MR. LANG: Oh, Iím sorry.
MS. MCGINTY: Your Honor, I would need time to read it and I would object. Iím not
sure of the relevance of admitting this. It seems that Dr. Furedy can testify to the
points that Mr. Lang is trying to make.
THE COURT: Iíll reserve on that, allow you an opportunity to read it.
Q (BY MR. LANG) Doctor, you talked about some of the controversies youíve been
in on direct examination, correct?
Q And among those controversies you were involved in is your work on the stresses
involved with the polygraph examination, correct?
A The stresses involved, I donít know what youíre referring to exactly.
A Iím sorry. Can I clarify? The controversies which Iíve talked about and I
mentioned in that chapter are controversies in other areas of psychophysiology.
Thatís why I was chosen to do this chapter on such a controversial area, because
I have been engaged in other controversies in other areas of psychophysiology,
such as orienting reaction, how to measure GSR, classical conditioning and so on.
Q Doctor, one of the controversies youíre also involved in is confessions elicited
following polygraph examinations, right?
A No. What is that? What controversy are you referring to? Let me tell you what I
think the controversy that Iím involved in.
Q Doctor, in the interest of time, perhaps if I could just ask the questions and if you
need to elaborate, you can do so later. You are familiar with the International
Journal of Psychophysiology?
Q Youíve been published in that journal yourself several times?
Q And do you consider it a reliable authority in the field of psychophysiology?
A Itís a referee journal.
Q And a referee journal in your opinion is fairly reliable authority?
A Not in everything stated in it. Thereís some articles in referee journals which are
wrong, but they have sufficient merit to get in through the referees, yeah.
Q Which in your opinion are wrong, these articles?
A Yeah, yeah.
MR. LANG: May I have this marked, please.
THE CLERK: Stateís pretrial exhibit 30 is marked for identification.
Q (BY MR. LANG) Doctor, Iím handing you whatís been marked as Stateís pretrial
Q It is an article from the International Journal of Psychophysiology in 1995. Are
you familiar with that journal, just the journal first?
A Yes. I said three years.
Q Are you familiar with this particular article?
Q It is entitled, Polygrapherís dilemma or psychologistís chimaera: A reply to
Furedyís logico-ethical considerations for psychophysiological practitioners and
researchers. You have read this article?
A Iíve not only read it; I have in press an answer to it.
Q And this article appeared in one of the refereed journals you referred to?
A Yeah, in the same, yeah.
Q Doctor, in this particular article, you are criticized for making inaccurate
representations about the CQT; is that correct?
A Thatís correct, as far as the articleís concerned.
Q Doctor, you are also --
A Can I clarify a little bit?
Q Doctor, in the interest of time, I have to say no.
THE COURT: You may proceed. Ask a question.
Q (BY MR. LANG) Doctor, you are also criticized in this article for your position on
confessions elicited following polygraph examinations, correct?
Q And the authors of this article state that there is no data to support your assertions
that in the absence of otherwise unacceptable interrogation techniques, properly
conducted polygraph tests are likely to result in false confessions. That is the
position of the authors of this particular article, correct?
Q Doctor, in this particular article, the authors also criticize your position on the
CQT by saying that your reasoning is seriously flawed and questionable on almost
every major point, correct?
Q And the authors also state that the general tone of your thesis is anti-scientific,
anti-intellectual, anti-academic freedom and it is demeaning to the institutional
review boards of the educational institutions that have approved research on
CQT tests. The authors also state that your arguments are based on a grossly
MS. MCGINTY: Objection, your Honor. At this point we just have a speech by Mr.
Lang. There is no question.
THE COURT: Iíll sustain the objection. Ask a question.
Q (BY MR. LANG) Doctor, are the authors of that article not criticizing your reasoning
for the reasons Iíve just stated?
MS. MCGINTY: Objection. The statement Mr. Langís just read speaks for itself. Iím not
sure what the question is.
MR. LANG: Excuse me, your Honor. I guess at this time I would move to admit this
exhibit as a learned treatise and allow the document to speak for itself to this
THE COURT: Have you shown it to counsel?
MS. MCGINTY: Your Honor, I have no copy. Iíve had no opportunity to read it and I
donít know who the, quote, the authors are, and I also think that Dr. Furedyís
response is deliberately deleted from this journal. So I would object.
MR. LANG: Excuse me, but your Honor, there was no response in this particular
THE WITNESS: Your Honor --
THE COURT: No. Iím sorry. I canít -- itís all right. No. Iíll sustain the objection. It has
not been established as a learned treatise.
MR. LANG: Your Honor, the Court can take judicial notice in the rule, it allows, first
of all. Secondly, this is a pretrial hearing and hearsay I believe is not necessarily
objectionable, but I would ask the Court, based upon the doctorís own matters --
excuse me, own opinions that this is a refereed journal. He himself has published
articles in this journal, at least three times, that it just -- simply because the
authorsí positions disagree with his does not make it not a learned treatise and I
would put it forth to the Court as such.
THE COURT: At this point Iíll sustain the objection.
Q (BY MR. LANG) Doctor, Iím going to refer you attention again to page 2 of this
article then. Doctor, do not the authors of this article also criticize you for a
grossly misleading discussion of the CQT? Itís a yes-or-no question.
A Thatís a yes question, yes.
Q And doctor, do the authors of this article not also criticize you for ignoring recent
developments in the field of psychophysiological detection?
Q Doctor, are you familiar with J. Peter Rosenfeld?
Q He is a professor at Northwestern University, correct?
Q He is a psychophysiologist?
Q He is a member of the Society of Psychophysiological Research?
Q Doctor, are you aware that he also has written a response to your claim that
pretest interviews, pre-polygraph test interviews, lead to involuntary interrogation?
A Iím aware of a draft paper which he sent me. Iím not aware that it has been
Q And I did not mean to imply that it has been published anywhere. You had stated
that you were aware of a draft that he had sent you, Dr. Rosenfeld?
A Yes. But Iím not -- your characterization could be -- could I clarify?
A The paper which this paper purports to be a response, that is the polygrapherís
dilemma, was accompanied by an editorial invitation. It was published in Ď93 in
this journal by an editorial invitation for people to respond. So although this is
a referee journal, the responses -- these are conceptual papers and thereís a
certain degree of liberty allowed to responses. Following this response I was asked
to write a comment, a response to this response, and that is coming out a couple
of issues from now, later than this issue.
Q And that is coming out in the International Journal of Psychology?
A Itís the same journal. Yes. The paper itself was in response to a Ď93 international
journal, conceptual paper, on the polygrapherís dilemma. In my opinion this
response does not really dial with my paper. That opinion is elaborated in a paper
thatís coming out in about six monthsí time. I have copies of that paper now of
Q And doctor, I take it your opinion would be once your paper is published in this
journal, then it would be a learned treatise, it would be a reliable authority in
this field? Doctor, your paper, you consider your paper to be a reliable authority
in this field, correct?
A No, no. These are conceptual papers arguing about the polygraph.
Q And they are published in a journal?
A They are published in a referee journal; in the case of conceptual papers, however,
especially when the editor invites comments, thereís a greater liberty allowed to
authors to state their cases as strongly as possible, partly because the authors
themselves are subject to reply by the people theyíre commenting on.
So some of these statements that you read out are indeed very strong
criticism, criticisms, and some of them are silly. For instance, saying that Iím
attacking -- by attacking the CQT polygraph, Iím attacking academic freedom.
Thatís pretty silly. But the reason why even a referee journal allows that is that it
allows a reply and my reply has already been written. Itís available. It hasnít yet
come out, because this just came out recently.
MR. LANG: Do you have that exhibit marked?
THE CLERK: Yes. Stateís pretrial exhibit 31 is marked for identification.
Q (BY MR. LANG) Doctor, Iím handing you whatís been marked as Stateís exhibit 31,
and that is an article by Dr. Rosenfeld, correct?
A Yes, yeah.
Q And that is an article that you have reviewed?
A I have seen some of it. I havenít reviewed this particular -- I made some comments
on the earlier draft, and I didnít see the revision based on the comments that I
Q Dr. Furedy, in that article does Dr. Rosenfeld criticize your position on the stresses
of polygraph interviews and testing?
A Iíd have to see the article. You know, I donít know what part youíre referring to.
Q Perhaps now that weíve reached the end of the day, you could review that and
we can take that up in the morning. Iím almost finished. That would be the only
area I would go into in the morning.
MS. MCGINTY: Your Honor, is this an inappropriate time to address Dr. Furedyís
THE COURT: You may.
MS. MCGINTY: Well, Dr. Furedy is scheduled to take an eleven oíclock plane
tonight back to Toronto. And I certainly agree that his testimony isnít quite
finished. Iím wondering if itís really worthwhile to ask him to spend another night
or if he could be made available for further telephonic examination prior to the
end of this hearing. I havenít spoken with him about whether he would be willing
to spend the night, but I know that he would make himself available on the
THE COURT: Well, I think that actually weíll proceed right now.
MR. LANG: Okay.
THE COURT: Mr. Lang has indicated that he didnít have all that much more.
MR. LANG: Thatís correct.
Q (BY MR. LANG) Doctor, Iíll just refer your attention to page 2 of that article.
MS. HIGGINS: Iím sorry, page, your Honor?
MR. LANG: Page 2.
MS. HIGGINS: Thank you.
Q (BY MR. LANG) At the bottom, the second to last paragraph.
A The key law quote or the Furedy also faults?
Q No. Yeah, the Furedy also faults.
Q If you can just read that silently to yourself. Doctor, in that article is it not true
that Dr. Rosenfeld criticizes your position on the stresses of interviews related
to the polygraph?
A Yes, it is, but it is interesting to indicated that he says, Furedy, 1993, also faults
the CQT, et cetera, but he doesnít provide a page reference. As I told him before,
and maybe it didnít register, I donít think this is an accurate characterization of my
position in that paper, and for it to have a chance of being an accurate
characterization, he would at least have to give the page reference to what heís
Q And doctor, in that paper does not Dr. Rosenfeld state that all of your arguments
relating to the stresses of polygraph-related interviews really can apply equally
to interviews which follow the general -- excuse me, GKT, which is a polygraph
examination that you yourself endorse?
A Well --
Q First of all, is that Dr. Rosenfeldís position?
MS. MCGINTY: Objection. How can this witness speak for somebody else?
THE WITNESS: I havenít read the paper thoroughly.
MS. MCGINTY: Objection. Calls for speculation.
THE COURT: Excuse me. Just one moment.
THE WITNESS: Sorry, sorry, sorry.
THE COURT: Iíll overrule the objection, but if you havenít read the paper or cannot
answer, you can say that.
THE WITNESS: No. What Iím going to say is that I havenít read this particular version,
but if he says what youíve just said, then heís manifesting a confusion about the
GKT and the CQT, which is clearly indicated in this book, amongst other
publications, and which is also indicated in the polygrapherís dilemma paper,
which was directed at a very specific moral dilemma, and the difference, that
whereas interrogation is part and parcel of the CQT. Itís part of the procedure.
Interrogation is not part and parcel of the GKT, just like interrogation is not
part and parcel of the IQ test.
After an IQ test, if a person gets a certain score, thereís no requirement
for the IQ tester to then turn around and have a special post-IQ test interview. In
the same way a GKT, there is no special requirement, so itís in that sense that the
GKT and CQT differ and so it is not contrary to Dr. Rosenfeld, just a matter of
practical work issue. Itís a matter of principle, the difference between an
interrogation technique and a genuine test.
Q (BY MR. LANG) Have you completed your answer?
Q Doctor, would you agree that there are a number of psychophysiologists who
disagree with you stated position on the stresses related to polygraph induced
A No. I donít think -- aside from Raskin and his students, such as Honts, and
Rosenfeld, which is unpublished, thereís been no psychophysiological assertion
about the position on the stresses. What there is a disagreement about between
me and many opponents of -- psychophysiological opponents of the polygraph
is whether the polygraph is a test. Some of these, many of these
psychophysiologists, still believe that it is a test, but they believe itís a very
Q In the interest of time, doctor, I think Iím going to stop here. Thank you.
A Thank you.
Q May I have that exhibit, please.
THE COURT: You have half the time. So ten minutes at the most.
MS. MCGINTY: Your Honor, I may -- Iím just wondering, should I have telephonic
follow-up to have Dr. Furedy read these articles or should I have him stay
THE COURT: I really have to leave that up to you. Itís a matter of counsel making that
MS. MCGINTY: Your Honor, I would have a motion to spend my ten minutes as
quickly as possible and also to finish this over the telephone, and Iíd like to
hear objections now, before I let Dr. Furedy get on a plane, if there are any.
MR. LANG: Your Honor, I would object because I donít know what counselís going to
refer to and I might have other articles that I might want to provide to the doctor
to review, and I would oppose any telephonic completion of this.
THE COURT: You probably need to use your time right now and then make your
decision, because I would not grant that at this point.
MS. MCGINTY: All right.
BY MS. MCGINTY
Q Dr. Furedy, and I am going to ask you be brief too, how is it that the Department
of Defense would have on its advisory board someone opposed to the polygraph
as a detection instrument, if you know?
A Well, I think the reason is pretty obvious, given I testify against them in court
and so on. In terms of my background in psychophysiology, I have important
expertise concerning the polygraph as a purported application of psychophysiology, and despite the fact that I argue against them and I say things
like the CQT should not be used in any detection context, they think my advice
Q And how is it that you can have expertise in the polygraph if youíve never gone to
A Because the polygraph is a purported application of the science of psychophysiology.
Q And how is it that you can have expertise if youíve never given a polygraph?
A Again, because itís a purported application of the science of psychophysiology.
You do not need to experience every purported application in order to pass
judgment on it in terms of its psychophysiology merit.
Q And do you need to observe polygraphs being given in order to testify on the polygraph?
A No. Itís totally unnecessary, unless I pretend to have an opinion on the particular
accuracy in a particular case.
Q And do you have an opinion on the particular accuracy of the polygraph in this
Q And why didnít you interview Art Fegley?
A Because I donít have special expertise, I donít have any magic way of finding from
an interview whether heís guilty or innocent. Thatís not my task. The information
I need to provide the Court is the detection and the interrogation function of the
Q And who is David Lykken?
A David Lykken is a professor of psychology, a distinguished professor of
psychology, now in his mid-60ís who in the late Ď50ís decided to look at the
polygraph and was itís most prominent opponent.
Q And did he write a book called The Tremor in the Blood?
A Itís a semi-popular book, thatís called The Tremor in the Blood in 1981.
Q And where does -- does he still teach?
A Yeah. Heís a professor of psychology at the University of Minnesota and his
latest research in the last ten years has been on twins, twin research.
Q And is he still active in the field of polygraph?
A Not very much in his psychophysiological. His twin research is just psychology in
Q And would he agree or disagree on your position about the polygraph not being
able to detect deception, if you know?
A He agrees with me, that it canít detect deception adequately, that it has no
MR. LANG: Your Honor, Iíll object on relevancy grounds and move to strike.
MS. MCGINTY: This was opened by the State when the State said, isnít it true that
Dr. Lykken doesnít agree with you.
THE COURT: No. Iíll overrule the objection. Allow it.
Q (BY MS. MCGINTY) And would he agree with you that there is a problem with the
A He certainly does. He was the one, for instance, who brought up the problem
of the control not being a genuine control.
Q The control being?
A He was the one who brought up the first time that the control is not a control in
the normal scientific sense of the term.
Q And in reaching your initial opinion in the early Ď80ís, did you rely or research
Dr. Lykkenís work?
A Oh, yes. The first thing I looked at was the writings of Dr. Lykken and Dr. Raskin.
Q And other than Dr. Lykkenís belief that the polygraph is an invalid test, would you
say that he is more in agreement or disagreement with your position.
A Heís more in agreement with my position about the polygraph. The thing that we
differ is whether itís a test. Dr. Lykken still believes that it is a test whereas in my
view, based on introductory undergraduate psychology principles of what a test
is, I think it is not a test.
Q And who is William Iacono?
A He is a former student of Dr. Lykken, also a professor of psychology and also at
University of Minnesota and also a distinguished investigator.
Q And what is his position on these CQT? Does he believe that it is --
A He believes that itís a very invalid procedure, but he also believes I think that it
is a test of sorts, and he believes that its accuracy may be evaluated, but that when
it is evaluated itís very low.
Q Who is your co-author in you text?
A Dr. Gershon Ben-Shakhar.
Q And my question is this. Dr. Gershon Ben-Shakhar, Iím going to do worse than
that on Furedy, but where does he teach?
A Hebrew university of Jerusalem.
Q And does he believe that the polygraph can detect deception?
MR. LANG: Excuse me, your Honor. If the Court is not going to allow in hearsay, I
guess I would object to all of this and move to strike.
THE COURT: Well, certain hearsay is admissible, but I will sustain the objection at
Q (BY MS. MCGINTY) Is he a proponent or an opponent, in terms of Dr. Ben-Shakhar,
proponent or opponent?
MR. LANG: Your Honor, Iíll object on relevance grounds.
MS. MCGINTY: This is gone into great detail.
THE COURT: No. Iíll sustain the objection. I think that I can assume that his views are
the same as Dr. Furedy or Professor Furedy.
Q (BY MS. MCGINTY) Do you recall, was your book reviewed by psychophysiologists?
A Yes. One of the places was in contemporary psychology, which is the leading
review journal in psychology, and the review was Dr. Iacono.
Q Was that a favorable review or an unfavorable.
A It was generally very favorable review.
MR. LANG: Object on relevancy grounds.
THE COURT: Iíll allow it to stand.
Q (BY MS. MCGINTY) Now, turn your attention to moral guilt and criminal guilt
very briefly. Is it your position -- let me just ask this question. Can a polygrapher
factor out moral guilt when looking at the results of a polygraph test, polygraph
A No, and neither can anybody else, based on the polygraph procedure.
Q Did you write about the use of the polygraph in Japan in your textbook.
THE COURT: One more minute, counsel.
MS. MCGINTY: Iím trying, your Honor.
Q (BY MS. MCGINTY) Has your confidence in your position increased or decreased
since the early 1980ís?
A Itís increased.
MS. MCGINTY: Thatís all I have at this point, your Honor. I would renew my motion
to have a brief follow-up so that I could read the articles which were not provided
in advance to me I think very deliberately, and so that Dr. Furedy would have a
chance to review the articles. It should be noted that Dr. Furedy provided several
articles to the State and these articles werenít provided and we are in a position
where these articles werenít brought up until late in the day. I donít have any
questions without reading those articles, but Iíd like to do a brief telephonic
examination of Dr. Furedy if necessary.
THE COURT: At this point that motion has been denied. At the conclusion of the
examination, you can renew it tomorrow or the next day.
MS. MCGINTY: All right. Thank you, your Honor.
THE COURT: Any cross-examinations at this time?
MR. LANG: Just one brief question or a couple.
BY MR. LANG:
Q Doctor, you also said that one of the first areas you did is research Dr. Lykkenís
work and Dr. Raskinís, correct?
Q And Dr. Raskin was at the time a professor at the University of Utah, correct?
Q And he was a psychophysiologist as yourself?
A I knew him quite well from earlier work in other areas.
Q And Dr. Raskin did not agree with your position on the CQT at all, did he?
A You mean the Ď86 position?
A No, no.
Q And he does not agree with your current position?
A Thatís putting it lightly.
MR. LANG: I donít have any other questions.
MS. MCGINTY: Your Honor, I would like to look at the discovery that was proved the
State today and I wasnít -- I didnít bring a copy with me and I wasnít aware that
the copy that was given to me was actually the one I was supposed to give to the
State, so I would like to see that.
THE COURT: Well, weíre going to adjourn at this point, and so the record could
indicate that we have gone past the four oíclock hour and the cross-examination
concluded at 4:12 and thatís why I divided up the time to be able to hopefully
take care of the testimony of the witness so he can catch his plane, and if there
needs to be anything further by way of telephonic testimony, we can take that up.
At this point Iím denying it on the basis of the objection by counsel, and on the
basis that parties need to prepare and have their witnesses available. I know this
is difficult. But that has been the ruling of the Court, but I did say you could bring
it up again and we can talk about it when maybe weíre more fresher.
MS. MCGINTY: Well, your Honor, I guess tomorrow we can address the issue of the
fact that I have another witness coming in on Friday form out of state, and if the
State has any articles that they intend to show him, I wish I could have those
THE COURT: All right. That seems reasonable. We will start at 8:30 on Friday, as
MS. MCGINTY: Thank you.
THE COURT: All right. Weíre going to be in recess at this time.
Thank you professor.
(Whereupon, the proceedings were concluded.)
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