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1 P R O C E E D I N G S
2 March 10, 1995
3 MR. DANIELS: Your Honor, before we rest I
4 just want to do a slight bit of housekeeping and make
5 sure we got all of the exhibits formally moved in. As I
6 understood there was an objection to Dr. Honts' vitae,
7 which is Exhibit M and we'll reserve that for when we
8 call him but I believe all the other exhibits were
9 either moved and if they weren't, we formally move them
10 in at this point.
11 THE COURT: Does the Government have any
12 objections to any of the other exhibits other than
13 Exhibit M?
14 MS. HIGGINS: No, Your Honor.
15 THE COURT: Then they shall all be admitted.
16 MR. DANIELS: With that we rest our
17 presentation in chief on the Daubert issues, Your Honor.
18 THE COURT: Ms. Higgins, you may proceed.
19 MS. HIGGINS: Your Honor, as a preliminary
20 matter I called James Murphy this morning and he would
21 be available this morning at eleven o'clock our time and
22 one o'clock his time for a telephone conference. I
23 didn't know quite how the Court wanted to handle this.
24 I didn't know if the Court wanted to handle this while
25 we're doing all of the rest of this, whether the Court
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1 wanted to wait until we were done and schedule a
2 teleconference with Mr. Murphy at another time and so
3 not knowing I just called to see if he would be
4 available today.
5 THE COURT: What I was anticipating is not a
6 telephone conference but actually taking testimony and
7 we would have him sworn over the phone and counsel would
8 be permitted to crossexamine him. I would like to
9 arrange the next best thing to have him crossexamine
10 his testimony.
11 MS. HIGGINS: All right. I have no objection
12 to that, and I don't know if Mr. Murphy will. I suppose
13 if he does that can be taken up then. I only mention
14 this as a scheduling thing that he will be available at
15 eleven o'clock this morning if the Court wants to break
16 at that point to try to do something with him at that
17 point. We can also do it at another time. I know the
18 Court has another hearing scheduled this afternoon at
19 two o'clock and since I wasn't quite sure how the Court
20 wanted to handle it, I thought we could at least
21 preliminarily set this up.
22 MR. DANIELS: Your Honor, we would have no
23 objection to examining him over the phone as the Court
24 suggested. We don't think that demeanor evidence is
25 that important in this case. With regard to scheduling
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1 if it is going to be done at a later date, we hope it
2 would be done very soon because we are hopeful of an
3 early ruling for the benefit of all parties so we know
4 which witnesses we have to schedule in and which not to.
5 If it turns out that we need to schedule him some time
6 next week or whatever, that's fine with us.
7 THE COURT: Okay. The only problem I see
8 with doing it this morning at eleven o'clock is it's
9 going to cut into the time that you indicated you needed
10 to finish this hearing. I think Judy talked to you
11 about our schedule yesterday. We can go until about
12 1:20. I have to be in another meeting at 1:30 here in
13 town.
14 MR. DANIELS: I think that's going to be a
15 problem. I have looked for ways to cut down our
16 examination and I think I can cut it down substantially
17 from what I advised the Court, but it is still going to
18 be a time crunch with the witnesses we do have.
19 MS. HIGGINS: Your Honor, another reason I
20 had asked him to be available today is that the end of
21 yesterday Mr. Daniels asked me if Mr. Murphy was going
22 to be available yesterday by telephone. And so I took
23 from that that perhaps Mr. Daniels wanted to try and do
24 this within the actual hearing, but we can certainly
25 reschedule this for another time.
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1 MR. DANIELS: Well, I'll consider part of the
2 actual hearing whenever we examine him.
3 MS. HIGGINS: Sure.
4 THE COURT: Why don't we do this, if by some
5 miracle it looks like we're going to end in time to do
6 Mr. Murphy's testimony at 11:00, we'll do that. Why
7 don't we talk after we have concluded with the evidence
8 today and set a time and we'll give this priority so we
9 can give you a ruling immediately after Mr. Murphy's
10 testimony.
11 MS. HIGGINS: Thank you. Your Honor, the
12 Government calls Lawrence Farwell.
13 LAWRENCE FARWELL
14 the witness herein, having been sworn to
15 testify the truth, testified as follows:
16 THE WITNESS: May I ask two questions before
17 we begin?
18 THE COURT: Sure.
19 THE WITNESS: First of all I am not familiar
20 with courtroom procedures, and I hope you'll forgive me
21 if sometimes I don't do or say what is required and
22 secondly with your permission I would like respectfully
23 to ask that I be allowed a break once an hour. I need
24 that for health reasons.
25 THE COURT: Okay.
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1 THE WITNESS: Thank you.
2 THE COURT: What you need to do is just tell
3 me when you need a break because what we're going to try
4 to do this morning is try to get as much evidence as we
5 can. Let me know and I will be happy to oblige.
6 THE WITNESS: Thank you, Your Honor.
7 DIRECT EXAMINATION
8 BY MS. HIGGINS:
9 Q Sir, what is your name, please.
10 A Lawrence Ashley Farwell. Lawrence,
11 Ashley and then Farwell.
12 Q How are you presently employed?
13 A I am the director and chief scientist of the
14 Human Brain Research Laboratory which is a small
15 scientific phychophysiology research laboratory located
16 in Fairfield, Iowa, and we also have an office in
17 Washington, D.C., and I'm also research associate on the
18 faculty of the Harvard Medical School.
19 Q Dr. Farwell, could you please describe your
20 educational background giving the years you received
21 your degrees and what your degrees are in?
22 A Yes, I received a BA from Harvard University
23 in 1973 in psychology and social relations with a
24 specialization even as an undergraduate in
25 psychophysiology. I received an MA from the University
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1 of Illinois and a Ph.D. from the University of Illinois.
2 The Ph.D. was '92 and I believe the MA was in 1988.
3 That was in biological psychology again with a
4 specialization in phychophysiology.
5 Q Where did you receive your degrees?
6 A Harvard University was a BA and University of
7 Illinois was the MA and Ph.D.
8 Q I may not have heard you, but did you talk
9 about receiving your doctorate also from the University
10 of Illinois?
11 A Yes, I said Ph.D., doctorate, yes.
12 Q Thank you. Now, in obtaining the degrees did
13 you specialize in any particular areas of psychology?
14 A Yes. Well, actually there are two ways, two
15 channels in the academic world to which one can come to
16 psychophysiology. One is psychology and then a
17 specialization in specifically psychophysiology. For
18 example, you may have a clinical psychologist who
19 specializes in psychophysiology and then does
20 psychotherapy and other things.
21 In my case I specialized in neuroscience, in
22 biological psychology which is perhaps more closely
23 affiliated with biology and then with psychology and
24 specifically within biological psychology. I specialize
25 in psychophysiology.
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1 Psychophysiology involves measurement of
2 physiological parameters with the purpose of making
3 scientific inferences about subjective or psychological
4 processes, either cognitive, emotional or other kinds of
5 psychological processes.
6 Q With respect to human physiology, did you
7 have anything in your education pertaining to the
8 autonomic nervous system? Did you learn anything about
9 that?
10 A Yes, I did. Well, first of all I am a
11 neuroscientist by profession. The autonomic nervous
12 system is a part of the whole nervous system. And it is
13 intimately connected to the central nervous system where
14 my primary focus and the focus of most neuroscientists
15 has been. But, for example, the fight or flight
16 response that is commonly very often studied by people
17 who studied the autonomic nervous system originates in
18 the central nervous system.
19 I mean the hypothalamus, for example, is very
20 much involved with the the pituitary is involved with
21 the reticular activating system. Those are parts of the
22 central nervous system. So it's a little it is
23 almost a spurious distinction to say well, there's the
24 autonomic nervous system and then there's the central
25 nervous system and there are two different realms.
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1 However, I did study extensively the
2 autonomic nervous system. I took courses in
3 psychophysiology. I taught both biological psychology
4 and psychophysiology. I taught I taught students at
5 the college level about the autonomic nervous system. I
6 taught about the fight or flight response.
7 And I remember, for example, one lecture that
8 I gave to undergraduates where we staged I happen to
9 be a black belt in Kung Fu we staged a Kung Fu fight
10 at the front of the lecture hall to illustrate what
11 happens with a fight or flight response. So it's
12 something with which one must be intimately familiar to
13 obtain the degree that I've obtained. And, also, I am
14 more familiar than most people because I have taught it
15 as well as learned it.
16 Q Now, while a graduate student did you
17 collaborate on any publications? Were you involved in
18 any studies or research that resulted in publication
19 while you were a graduate student?
20 A Yes, many. Many of those publications were
21 begun while I was still a graduate student. Another
22 point I should make with respect to grad student versus
23 postgraduate is that I left the University of Illinois
24 and began working as a consultant in psychophysiology
25 and specifically forensic application in
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1 psychophysiology with the Central Intelligence Agency
2 two years before I received my Ph.D.
3 So there is a little bit of a smearing there
4 between before and after getting my Ph.D. Yes, I did
5 but in answer to your question, yes, I have collaborated
6 on a number of studies.
7 Q In fact, from 1990 to 1993 while you were a
8 graduate student, I believe
9 A Some of the time.
10 Q Some of the time, would you please explain
11 what your relationship was with the CIA and what you did
12 for them?
13 A Yes, I invented a system for matching
14 evidence from a crime scene or elsewhere with evidence
15 that is stored in the brain, in the memory stores of the
16 brain, by measuring brain responses. So they hired me
17 first as a consultant and later as a contractor. And as
18 a contractor I hired several other people, four or five
19 or six other people, working in my laboratory to study
20 specifically forensic applications of psychophysiology.
21 In particular this brain fingerprinting
22 technique which I invented and patented which involves
23 detecting information in the brain, matching information
24 stored in the brain with information that may be from a
25 crime scene. And this has obvious forensic
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1 applications. That was my primary function with the
2 CIA.
3 I also served as a consultant both to the
4 Office of Security in which case the people I talked to
5 were primarily polygraphers and also the Office of OSR,
6 Office of Scientific Research, in which case there were
7 other kinds of scientists. And again I was consulting
8 on psychophysiology and forensic application thereof.
9 Q All right. And your position as a research
10 associate at Harvard, what exactly is that and what are
11 you doing with that?
12 A What I am doing there is I am studying with
13 my colleagues, primarily Dr. Roger Pitman,
14 posttraumatic stress disorder which is an
15 overactivation of the sympathetic branch of the
16 autonomic nervous system. In fact, posttraumatic
17 stress disorder comes from the same fight or flight
18 response that you measure during polygraphy. By
19 polygraphy I mean the forensic polygraphy, the kind that
20 polygraphers do.
21 And we make measurements not only of the
22 brain waves involved but also of other autonomic
23 measures such as cardiovascular activity, muscle tension
24 and so on. We measure those things simultaneously which
25 again points out that the central nervous system is
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1 wellintegrated with the autonomic nervous system. But
2 our research there involves both making autonomic
3 measurements and making brain wave measurements in
4 posttraumatic stress disorder or shell shock as it used
5 to be commonly called, which is activation
6 overactivation or caused largely by an overactivation of
7 the sympathetic nervous system which is a branch of the
8 autonomic nervous system. The one that causes the fight
9 or flight response.
10 Dr. Pitman, has, in fact, testified in court
11 about this research. This was research of his that was
12 conducted prior to the time that I began collaborating
13 with him on posttraumatic stress disorder and its
14 psychophysiological measurements.
15 Q After receiving your doctorate, have you done
16 any research and published any of your research in any
17 peer review journals?
18 A Yes, I publish quite a lot on peer review
19 journals. In addition to the study, the brain
20 fingerprinting or it is also called multifauceted
21 electroencephalographic response analysis system that I
22 developed. That was published first of all, let me
23 talk about that. That was published in Psychophysiology
24 which as we heard yesterday is the premier journal in my
25 field, peer review journal.
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1 And an additional publication that I had in
2 Electroencephalography and Clinical Neurophysiology
3 which is another very prestigious journal in my field
4 which specializes in brain waves was a system that I
5 developed to communicate from a computer to a brain.
6 If a person is paralyzed, they may still be
7 able to think and still have brain responses that can be
8 measured so what happens is we detect the brain
9 responses to their choices, mental choices of options
10 that we flash on a screen. They are able to communicate
11 their intentions that way. And from that we can connect
12 their mental and then brain activity to a computer to a
13 speech synthesizer and somebody can talk basically
14 without using their motor systems or their mouth at all.
15 We published a study on that in Electroencephalography
16 and Clinical Neurophysiology.
17 I published another study in
18 Psychophysiology, the same journal that we mentioned a
19 little earlier on digital filtering, which is a it's
20 a technical paper on data analysis procedures. I have
21 also published in Physical UE, which is a leading
22 physics journal. This was an article, again, a
23 technical article on mathematical analysis of various
24 kinds of signals that can be biological signals but this
25 was a technical mathematical article.
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1 Q Do you belong to any professional
2 organizations?
3 A Society for Psychophysiological Research.
4 Q Have you ever made any addresses or presented
5 any papers at that organization?
6 A Yes. They are in my vitae. I can't count
7 off the top of my head, but I have spoken just about
8 every year. I speak at the SPR, Society for
9 Psychophysiological Research, annual meeting.
10 Q Have you, yourself, been involved in any of
11 the editing process for any peer review journals?
12 A Yes, several. Psychophysiology is one. In
13 the last few weeks I have edited I served as a
14 consulting editor on two papers in Psychophysiology.
15 Also, Electroencephalography and Clinical
16 Neurophysiology, the other journal that I mentioned.
17 Yes, I did that frequently. And for those who may not
18 know what a consulting editor does is implement the peer
19 review process.
20 When you say peer review it means it gets
21 sent out to peers and a peer is another scientist who
22 reads it or several other scientists read it and they
23 make comments and they recommend that it be accepted or
24 rejected. The author will then make changes as
25 necessary and they review it again and so on.
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1 Q Have you done any work with computers
2 relative to your research?
3 A Yes. I wrote the original computer programs
4 both for data acquisition and data analysis of
5 physiological responses of brain responses. And I have
6 worked extensively with computers in the analysis of
7 biological signals and in acquisition of biological
8 signals.
9 Q Now, with respect specifically to forensic
10 polygraphs, what we have been talking about in the
11 courtroom so far
12 A Yes.
13 Q are you licensed or trained to administer
14 such examinations?
15 A No, I am not.
16 Q Have you received any kind of training or
17 education in general about forensic polygraph
18 examinations? Specifically the control question
19 techniques or the directed lie techniques?
20 A Well, first of all when you say training and
21 education and then you mention the word "polygraph" I
22 would like to point out as my friend and colleague, Dr.
23 Raskin, did yesterday that the word "polygraph" to the
24 general public is often associated with a quote,
25 unquote, "lie detector machine" that is used in forensic
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1 polygraphy.
2 Now, the instrument itself is a scientific
3 instrument which can be used in that way and can be used
4 in other ways. So throughout my training as a
5 psychophysiologist I needed to know about the science
6 involved in forensic polygraphy. I have not been
7 trained as a polygraph operator specifically. I have
8 experience in polygraphy. I have both observed and
9 taken polygraph tests, for example, at the CIA.
10 So I am familiar with that to that extent,
11 but as far as being trained as an operator, that is not
12 my field. I am a scientist and not a polygraph
13 operator.
14 Q All right. Now, in working with the CIA, did
15 any of your work involve physiological phenomenons that
16 had to do only with the autonomic nervous system?
17 A Exclusively with the autonomic nervous
18 system?
19 Q Exclusively.
20 A I don't think there are any physiological
21 phenomenon that have to do exclusively with the
22 autonomic nervous system.
23 Q Would it be fair to say then that in working
24 with the CIA and just for a moment could you please
25 clarify what your relationship was? Were you on
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1 contract? Did you have a grant? How did you get there?
2 A Initially, I was a consultant. I was a
3 fulltime consultant on a personal services contract for
4 the CIA. This was in 1990 for one year. Then the
5 following two years I was on contract through Human
6 Brain Research Laboratory which is my laboratory with
7 the CIA. It was a standard research contract which they
8 paid me to do specific studies.
9 I did three studies there under that contract
10 on this brain fingerprinting technique. This matching
11 evidence at the crime scene or elsewhere with evidence
12 stored in the brain. One of these studies was also a
13 collaboration with the U.S. Navy with a Dr. Rene
14 Hernandez. Did I answer the question?
15 Q Yes, thank you. And the question that I was
16 asking before that was in working with the CIA did any
17 of your work for them or with them have anything to do
18 with forensic polygraph examinations specifically or in
19 a more general sense and, if so, please describe.
20 A Okay. As I mentioned I was a consultant on
21 psychophysiology for the polygraphers in the OS as well
22 as for the other scientists in the OSR. So if you're
23 going to study let's see, if you're going to bring in
24 an expert on dirt, this is not meant to be disrespectful
25 of my friends and colleagues in the polygraph community,
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1 if you're going to bring an expert on dirt, you are
2 going to bring in a Ph.D. in soil and science.
3 There are such things. You don't necessarily
4 bring in somebody who digs ditches or is a farmer. And
5 similarly I was a consultant on psychophysiology and
6 some of my clients on the CIA were polygraphers but I
7 wasn't a consultant on how to run the polygraph charts
8 because that is not my field of expertise.
9 Q Have you reviewed the literature or at least
10 some of the literature in the field having to do with
11 forensic polygraph exams?
12 A Yes, I have.
13 Q Specifically have you reviewed literature
14 having to do with accuracy studies?
15 A Yes, I have. As part of writing my
16 dissertation my dissertation was on this brain
17 fingerprinting technique, this technique that I
18 developed using brain responses in forensic
19 applications. In order to even write my Ph.D. I had to
20 be reasonably conversant with the literature on other
21 forensic applications cases such as forensic polygraphy.
22 Q And based on your background and training are
23 you familiar with what the scientific theories or
24 principles are that underlie the use of the polygraph
25 machine and the questions used in a polygraph exam?
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1 A Well, once again that is my field of
2 scientific expertise. I am a neuroscientist. Dr.
3 Raskin spoke in terms of days in training that people
4 had to go through to become polygraphers. In my case my
5 training in that specific, psychophysiology, was
6 measured in years. In fact, there were eight of them
7 after I spent another four at Harvard. So, yes, that is
8 what I do.
9 I am a psychophysiologist. I am very
10 familiar with the scientific principles involved not
11 only in polygraphy which is a very narrow application
12 but throughout psychophysiology.
13 MS. HIGGINS: Your Honor, I think at this
14 time I would like to offer Dr. Farwell as an expert
15 witness in the area of psychophysiology.
16 MR. DANIELS: We are ready to voir dire, Your
17 Honor, on qualifications.
18 VOIR DIRE EXAMINATION
19 BY MR. DANIELS:
20 Q Dr. Farwell, how many times have you been
21 found qualified by any court in the world as an expert
22 witness to testify on the scientific validity of
23 polygraph tests?
24 A I believe it's on the record from earlier
25 that this is my first time I have testified in court.
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1 Q You have not been qualified as an expert on
2 any subject in any court in the world?
3 A That's correct.
4 Q You have not testified on the brain
5 fingerprinting, your theory that you are making your
6 living from now before any court?
7 MS. HIGGINS: Your Honor, objection. Asked
8 and answered.
9 MR. DANIELS: I will move on, Your Honor.
10 BY MR. DANIELS:
11 Q Dr. Farwell, how many scientific experiments
12 let's just start with the lab studies. How many lab
13 studies on the forensic use of the polygraph have you
14 conducted?
15 A Are we speaking here first, let me make
16 sure I understand the question. Dr. Raskin yesterday
17 spoke about the polygraph as being an instrument for
18 measuring multiple physiological parameters. Now, that
19 is what I do. All of the studies that I have published
20 that involved scientific research rather than technical
21 mathematical studies were about that process. And that
22 is the original denotation of the word "polygraph."
23 Now, if what you're speaking of is the
24 specific application in lie detection of the polygraph
25 machine, as I mentioned that is not the field in which I
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1 have done research and that is not that is not what I
2 have published on. That is a small subset of the field
3 in which I am an expert.
4 Q The use of the polygraph in general is an
5 accepted scientific technique in the field of
6 psychophysiology?
7 A The use of the polygraph in general in which
8 I am an expert is we might render a problem here in
9 the meaning of the word "polygraph." The use of the
10 polygraph in general in which I am an expert is
11 definitely that's the major thing that is done in
12 phychophysiology.
13 Q Is it a device that accurately measures the
14 responses of the autonomic nervous system?
15 A The short answer to that question is yes. We
16 could debate the small esoterica of how well the blood
17 pressure cuff actually measures blood pressure when it
18 is being done continuously and whether it is really
19 blood pressure that is measured and so on. There are
20 other nits that could be picked. But in general I think
21 we can accept, yes, the polygraph does measure it
22 purports to measure accurately.
23 Q It is based on underlying scientific
24 principles?
25 A The techniques that are employed, many of
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1 them are not, but the scientific instrument itself is
2 certainly based on scientific principles.
3 Q When you say techniques that are employed,
4 you're talking about the specific use of the polygraph
5 for lie detection, aren't you?
6 A Correct.
7 Q Were you advised when you were asked to
8 testify here that this hearing was about the
9 admissibility of results of polygraph tests used for
10 detection of deception? That that was the purpose of
11 this hearing?
12 A I don't remember the words in which they were
13 conveyed to me.
14 Q Is there a better set of words I can use? I
15 am trying to get to the point of lie detection by use of
16 the underlying use of the polygraph.
17 A My point is and that would be the point of my
18 testimony that and I think that my colleagues here
19 will agree with me there is not a specific response
20 that indexes a lie. So what I have to testify about is
21 the science involved, what is being measured by a
22 polygraph and what does this indicate about what is
23 going on in the nervous system and the mind and emotions
24 of the individual who is attached to that polygraph.
25 That's what I am an expert in.
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1 Q You sat through the hearing yesterday, didn't
2 you?
3 A Yes, I did.
4 Q Listened to the testimony?
5 A Yes, I did.
6 Q You understand that we're talking here about
7 the validity of the use of the polygraph science for
8 purposes of lie detection by the control question
9 technique? You understood that, didn't you?
10 A Yes, I understood eight hours of that
11 yesterday.
12 Q All right. When I talk about forensic
13 polygraphs, would that be sufficient to focus us on the
14 use of the polygraph for lie detection or is there some
15 other form of words that will be satisfactory to you
16 that I can use and we'll move on to it? Any word you
17 choose.
18 A Thank you.
19 Q Dirt? I'll use dirt. Is there a word I can
20 use?
21 A Forensic polygraphy is fine, thank you.
22 Q All right. How many laboratory tests have
23 you conducted in forensic polygraphy?
24 A First of all the answer to that is none, but
25 the point that I am not quite agreeing with you on, sir,
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1 is that what this is about is forensic polygraphy. I
2 think I mean it is forensic because we are here in a
3 courtroom, but what this is about are the scientific
4 principles involved in the measurement of
5 psychophysiological parameters and that's what I am an
6 expert in.
7 Q How many tests, laboratory tests have you
8 conducted using the control question technique on a
9 polygraph exam for detection of deception?
10 A I wouldn't conduct a laboratory test on it
11 because I think it's a highly unscientific technique.
12 Q Before you conduct the test, you've already
13 concluded that; is that correct?
14 A I concluded that based on my knowledge of the
15 field and my knowledge of the literature.
16 Q Is your answer that you have conducted no
17 tests of that kind?
18 A That's correct.
19 Q Have you observed any laboratory tests of
20 that kind?
21 A The reason I am hesitating here is because I
22 have observed use of the polygraph in real life
23 situations by the CIA and also in nonreal life
24 situations by the CIA. But I am hesitating whether I
25 call that a laboratory experiment or a demonstration or
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1 something of that nature.
2 Q You believe yourself to be a scientist, don't
3 you?
4 A Of course.
5 Q You understand the meaning of laboratory
6 tests in the field of science, don't you?
7 A All right. I understand the meaning of the
8 word "laboratory test." If you want to call it a
9 laboratory test when a CIA polygrapher conducts a
10 polygraph exam for the purpose of observation, then I
11 have observed that. If you want to say no that's not a
12 laboratory test
13 Q What do you call a laboratory test as a
14 scientist? A field application?
15 MS. HIGGINS: Objection, Your Honor. I think
16 that mischaracterizes what the witness has said. I
17 think he has made a distinction between actual real life
18 tests and tests that he has classified as
19 demonstrations.
20 BY MR. DANIELS:
21 Q Will you consider that test that you observed
22 a laboratory test in the scientific sense, honestly?
23 A Well, I am being honest here, sir. No, I
24 would not.
25 Q All right. And laboratory tests are a common
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1 method of testing scientific hypotheses; is that
2 correct?
3 A That's correct.
4 Q Where you set up a controlled situation where
5 you know ground truth; is that correct?
6 A That's correct.
7 Q You take a scientific principle and a
8 hypothesis and see if the hypothesis works in a given
9 laboratory setting; is that correct?
10 A Yeah, I think that is reasonably accurate.
11 Q That's the scientific method?
12 A That is one way of characterizing a
13 scientific method.
14 Q Dr. Farwell, how many field studies of the
15 use of the polygraph examination for forensic purposes
16 have you conducted?
17 A None.
18 Q How many have you participated in?
19 A You mean studies? Not just field
20 applications
21 Q Going out in the field with a primary
22 researcher and standing there and watching the work be
23 done?
24 A But you're talking about a field study,
25 you're not talking about a field application?
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1 Q Field study as opposed to watching somebody
2 do a polygraph exam?
3 A Field studies, I have not participated in.
4 Q You said you how many polygraph exams have
5 you even seen administered?
6 A Let's say less than five.
7 Q Less than five. If I were to ask you to
8 interpret these charts here in this case, will you feel
9 comfortable in coming down and interpreting what these
10 charts have to say? Do I need to get you down there?
11 A No.
12 Q How many
13 THE COURT: Excuse me. Did you answer that
14 question, sir, about whether you could interpret the
15 results of that polygraph?
16 THE WITNESS: He asked me if I would feel
17 comfortable, that's a different question. And as a
18 psychophysiologist I know what the lines mean and I
19 could tell you a tremendous amount of what they mean
20 from a scientific perspective. That is a particular
21 chart which is done in a particular method in which I am
22 not an expert for specific forensic use.
23 And so if the point is to get me down there
24 and ask me a bunch of questions about the way
25 polygraphers traditionally view their charts, I would
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1 have to say, no, I wouldn't be comfortable in doing
2 that. As far as understanding the science involved, I
3 am quite comfortable.
4 BY MR. DANIELS:
5 Q Well, for example, in understanding the
6 science could tell us which lines indicate which
7 physiological responses; is that correct? Or could you
8 even do that?
9 A Sure.
10 Q But you couldn't tell us the significance for
11 the purpose of lie detection of the reactions and the
12 comparisons of the reactions, could you?
13 A Are we talking about this specific chart?
14 Q This chart. If I were to ask you down here
15 show me what the significance of this control question
16 reaction is as compared to a relevant question, could
17 you get down there and analyze that chart?
18 A All right. There are you could mean one
19 of two different things by this. If you mean do I
20 understand the psychophysiological scientific principles
21 that are involved in the analysis of human responses and
22 would I be able to speak intelligently and knowledgeably
23 and professionally about the physiological measurements
24 that were being made and the scientific significance of
25 those, the answer is yes. If you mean can I interpret a
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1 polygraph chart in the way that polygraph examiners do,
2 the answer is no.
3 Q You could come down here and analyze these
4 tracings and tell us whether this is a truthful or
5 deceptive polygraph chart?
6 A I couldn't do that but on the other hand, Dr.
7 Raskin says it is truthful. Dr. Barland, one of other
8 world's leading authority, says it is inconclusive. And
9 Jim Murphy, the head polygrapher for the FBI, says it is
10 deceptive so I'm not sure anybody else could do that
11 either.
12 Q Have you talked to Jim Murphy about this?
13 A Excuse me, that was hearsay.
14 Q Have you talked to him about it?
15 A About this polygraph?
16 Q Yes.
17 A I've only read the letter that he sent.
18 Q Are you aware that he did not score the whole
19 chart?
20 A Yes, I am.
21 Q Are you aware he didn't do any numerical
22 scoring on it?
23 A I only know the contents of his letter.
24 Q How many peer reviewed articles have you
25 written on any forensic polygraph issue that has been
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1 received for publication?
2 A None.
3 Q How many you talked earlier about having
4 done some peer review and editing of other people's
5 articles. How many articles on forensic polygraph tests
6 of the kind we're talking about here have you personally
7 peer reviewed in that work?
8 A None.
9 Q You have never conducted a polygraph exam?
10 A It's on the record.
11 Q You have never been found qualified or
12 licensed as a polygrapher by any jurisdiction in the
13 world?
14 A It's on the record.
15 Q You talking about teaching courses. Have you
16 ever taught a single course in forensic polygraphy?
17 A I have never been affiliated with an academic
18 institution, Harvard or University of Illinois that
19 teaches such courses.
20 Q And you have never taken such a course?
21 A Again, I have never been affiliated with an
22 academic institution either Harvard or the University of
23 Illinois that provides those courses. No, I haven't.
24 Q Are those the only you have never taught
25 at Harvard, have you?
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1 A No, I have not.
2 Q Your teaching was at the University of
3 Illinois as part of your graduate work?
4 A That's correct.
5 Q It was not in polygraphy?
6 A That is correct.
7 Q Have you taught at the university in the
8 place you're located, Fairfield?
9 A No, I haven't.
10 Q Did you have any
11 A I'm sorry. I'm sorry, I misspoke. While I
12 was still a graduate student, I spent one month teaching
13 a course at Maharishi International University
14 Q Maharishi?
15 A Yes, International University which is
16 located in Fairfield, Iowa. Your next question was am I
17 affiliated with that university, no, I am not.
18 Q What is the Maharishi International
19 University?
20 A It's a small private university in Fairfield,
21 Iowa, which is which specializes in what is called
22 the science of creative intelligence. It specializes in
23 studies that have to do with human consciousness
24 primarily.
25 Q This doesn't have anything to do with the
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1 guru that the Beatles used to hang around with, does it?
2 A It does indeed. It was founded by Maharishi
3 Marishel [sic] at the University of Illinois and that's
4 where it got its name from.
5 Q And you didn't teach the people at the
6 Maharishi University anything about forensic polygraphy,
7 did you?
8 A No, I did not.
9 Q What was the subject matter of what you
10 taught there?
11 A I taught psychophysiology. It was a
12 onemonth it was an invited guest faculty course for
13 one month in psychophysiology.
14 Q This have something to do with transcendental
15 meditation?
16 A My course didn't but the university does. I
17 mean the people there typically practice transcendental
18 meditation as do I personally.
19 Q You're not a member of any professional
20 association of forensic polygraphers, are you?
21 A No.
22 Q Are you telling us that you do not see any
23 distinction between the cognitive branch and the
24 autonomic branch of psychophysiology? You're saying
25 there is no distinction at all there?
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1 A Well, you have named two things. If you're
2 going to name those two things and say there is a
3 cognitive branch and there is a psychophysiology branch
4
5 Q I said autonomic branch within the field of
6 psychophysiology.
7 A I'm sorry, I misspoke. If you're going to
8 say well there is a cognitive branch and there is an
9 autonomic branch and you define those two things, then I
10 would have to say that they would be different. I look
11 at psychophysiology as a very narrow subspecialty of
12 either physiology or psychology.
13 For example, I was in one of the largest
14 graduate programs in psychophysiology in the country
15 when I was a grad student and there were about five grad
16 students in the entire psychophysiology field in that
17 program. So you could divide it into sub, sub, sub,
18 subspecialties if you want and say there are people who
19 study more cognitive and there are people who study more
20 autonomic. It is quite a fine hair split as far as I am
21 concerned.
22 Q My question is are there different branches
23 of autonomic and cognitive in the field of
24 psychophysiology?
25 A Sure. You can divide it down as far as you
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1 want. There are people for example, I know people
2 who spend their careers studying a brain response called
3 an M200 which takes place 2/10's of a second after the
4 stimulus. And there is also other people who spend
5 their career studying an M400 which takes place 4/10's
6 of a second after the stimulus. You can say there is
7 the M200 people and the M400 people. You can cut it
8 down as far as you want.
9 What I am saying is already to get to the
10 field of psychophysiology, you've divided it quite
11 narrowly. And there aren't that many players in the
12 world. I mean most of the psychophysiologists belong
13 virtually all of the good psychophysiologists belong to
14 the Society for Psychophysiological Research and there
15 are a few hundred members and people know who the
16 players are.
17 Q If there were a few hundred engineers in the
18 world, would you recognize that electrical engineers are
19 a separate branch from structural engineers?
20 A What I am saying is that there are many, many
21 thousands. I could go many, many thousands of
22 structural engineers whereas here we are talking about a
23 small subspecialty.
24 Q My question is isn't it fair to say there are
25 separate branches regardless of the numbers involved of
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1 autonomic and cognitive within the field of
2 psychophysiology? Isn't that fair to say?
3 A Yes, it is fair to say.
4 Q Your brain is it brain fingerprinting you
5 call it?
6 A Yes.
7 Q Your brain fingerprinting technique is
8 something that falls within the cognitive branch; is it
9 not?
10 A Yes.
11 Q And that's where you have done your primary
12 professional work and study; isn't that true?
13 A That's correct.
14 Q Rather than the autonomic branch of
15 psychophysiology?
16 A That's correct.
17 Q Now, control question polygraphs used for
18 detection of deception are based on the working of the
19 autonomic nervous system; isn't that correct?
20 A Of course, that is correct. I mean I am
21 quite aware of the autonomic nervous system. In fact,
22 that is one of the things that my colleague, Dr. Pitman,
23 and I are studying currently at Harvard. And we measure
24 incidentally we put electrodes on the head and we
25 measure the brain responses. We measure cardiovascular
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1 activity simultaneously.
2 Q But you did not test whether the polygraph
3 instrument can take those underlying scientific
4 principles and use them to detect deception in human
5 subjects, did you?
6 A No, I did not.
7 Q You mentioned your CIA grant. This was on
8 your brain fingerprinting technique?
9 A Yes.
10 Q How many courts have ever admitted a single
11 one of your brain fingerprints with or without you as a
12 witness? Is it zero?
13 A The answer is zero but let me qualify.
14 Q A qualified zero? I'm sorry, go ahead.
15 A The point is that as you're well aware from
16 this meaning and others it takes some time to get
17 something established as admissible in court. And it
18 takes some effort and it takes some planning as people
19 in this room can attest. And we do have plans for that
20 and we're taking it step by step. I have spoken with
21 people in the FBI. I have collaborated with researchers
22 at the FBI.
23 There are plans to do that, but we're doing
24 it in a very careful way. And we want to do it in a way
25 that by the time we end in front of a courtroom and I
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1 have to undergo crossexamination, I will be able to
2 answer all of the questions in a way that not only
3 satisfies me and my scientific colleagues but will
4 satisfy the courts.
5 We expect it will be admissible. We expect
6 that it will be admissible under the Frye standard.
7 Certainly under the Daubert standard we expect it will
8 be admissible but we're taking that step by step. And
9 the answer is, no, we have not progressed to that point
10 yet.
11 Q Do you know how many brain fingerprinters are
12 on the salary of the United States Government? Zero,
13 isn't it?
14 A Yes, certainly.
15 Q You have claimed that your brain
16 fingerprinting which is to detect guilt or innocence
17 from brain waves; is that fair to say?
18 A Let me correct this. What we can detect and
19 we have done this with 100 percent accuracy both in
20 three studies for the CIA, one with the Navy and another
21 with Dr. Richardson of the FBI. What we can detect is
22 presence or absence of specific information in the
23 brain. That has nothing to do with whether a person is
24 telling the truth or lying about it. And it is totally
25 and this is some place where you and I will agree and
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1 my friend, David, will agree as well is totally and
2 fundamentally separate from forensic polygraphy as it is
3 typically practiced.
4 What we are detecting has nothing to do with
5 whether they are lying or not. It only is is this
6 information stored in the brain or not. For example, we
7 detect it with 100 percent accuracy where there is
8 specific people where FBI agents are not. Now, whether
9 they were lying about being FBI agents or whether they
10 were FBI agents, by flashing information that only an
11 FBI agent would recognize on the screen and measuring
12 from their brain responses whether they recognize that
13 information or not.
14 Q Did you compare that with the use of the
15 guilty knowledge test used in forensic polygraphy?
16 A Did I compare it? I'm not sure what you
17 mean.
18 Q Have you gone through any kind of comparison
19 method to compare your results with the forensic
20 polygraphy use of the guilty knowledge test which is
21 essentially the same thing?
22 A Well, it is not essentially the same thing
23 because in my test first of all as you would have me say
24 and as you would agree I think
25 Q I just want your answers.
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1 A what I am doing is measuring a cognitive
2 response. This is a central nervous system response.
3 So that is one major difference between what I do and
4 the conventional guilty knowledge test with the
5 polygraph.
6 Secondly, the guilty knowledge test with a
7 polygraph, one of the major criticisms of it is there is
8 no control. You asked a series of questions and you
9 look at which one gets the biggest response. In my case
10 I present three different types of stimuli. I flash
11 words or pictures that are known to be significant for
12 the individual because we've told them about them and
13 they can push a special button when they appear. This
14 is cognitively speaking.
15 I can flash words or pictures that are
16 insignificant, that are irrelevant and ignores those and
17 then I flash things that are relevant to this issue
18 under investigation. For example, for an FBI agent, we
19 flash words or pictures that only an FBI agent would
20 recognize. We get a recognition response which is
21 called a memory encoding related multifaceted
22 electroencephalographic response, mermer, mermer.
23 We get that response when the individual knows that
24 information when it is stored in his brain. We don't
25 get that response when it is not.
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1 So we take the response to the stimuli that
2 are relevant to the situation under investigation which
3 we call probes, and we compare them mathematically to
4 two different kinds of responses. One, where we know
5 they have the information in which case there will be a
6 brain mermer. One, where we know there won't, in which
7 case there won't. We see mathematically which one does
8 this look like.
9 Q Is your answer no?
10 A My answer is no.
11 THE COURT: That was an interesting
12 explanation though.
13 BY MR. DANIELS:
14 Q The CIA actually discontinued your grant
15 because of the lack of scientific controls and
16 techniques in your handling of it; isn't that correct?
17 A I can't think of a statement that is further
18 from the truth. The CIA found that my research was
19 extremely scientific and extremely accurate. The
20 colleague got 100 percent accuracy in over 100 cases for
21 them. There are political and economic reasons that
22 have been explained to me by the people there to some
23 degree regarding lack of availability of funds. And
24 those are the reasons that were given to me.
25 By the way they have not discontinued it
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1 permanently. My understanding from the people I have
2 spoken with there is that I fulfilled my contact with
3 them and they are continuing to evaluate the technique.
4 They are continuing to gather data and to encourage me
5 to do the same and to publish additional data on the
6 technique with an eye perhaps to continue in the future.
7 If there is any idea that there is anything even
8 slightly lacking in the scientific value of the research
9 that I did, then that is totally false.
10 Q Dr. Honts here was part of a review panel of
11 a number of scientists who reviewed your work at the
12 request of the CIA; is that correct?
13 A That's correct. That was a review what
14 they wanted to do essentially was to bring in peers
15 instead of waiting for the research to go out to the
16 journals to be reviewed by peers.
17 Q You're not aware of the findings and
18 recommendations of that professional review panel?
19 A I am extremely aware of the findings and
20 recommendations. And I have talked in detail with many
21 of the members of that panel.
22 Q Let's talk about the resume that you provided
23 to us. Did you prepare this just for the purpose of
24 this case?
25 A Forgive me. I need to apologize for that
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1 particular resume. What happened
2 Q Let's have it marked so we can talk about it.
3 MS. HIGGINS: Your Honor, it is already
4 marked, I believe, as Government's Exhibit 1.
5 MR. DANIELS: I will move in Government's
6 Exhibit 1, Your Honor.
7 (WHEREUPON, Government's Exhibit 1
8 offered into evidence.)
9 THE WITNESS: I would like to explain the
10 circumstances surrounding that.
11 THE COURT: Wait till a question is asked of
12 you.
13 THE WITNESS: He asked me the question, Your
14 Honor.
15 THE COURT: There being no objection we will
16 admit Plaintiff's Exhibit Number 1.
17 (WHEREUPON, Government's Exhibit 1
18 admitted into evidence.)
19 MR. DANIELS: I believe the Court has a copy
20 up there?
21 THE COURT: I do.
22 BY MR. DANIELS:
23 Q I am handing you Plaintiff's Exhibit 1. That
24 is the resume that you submitted?
25 A Yes. You asked me a question about it.
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1 Q The question was isn't it a fact that you
2 prepared that specifically for presentation in this
3 case? It was not a resume that you had already?
4 A Yes. Again, I would like to apologize for
5 that. What happened was in a space of four days or five
6 days, I was giving I was in Washington, DC. I was
7 giving an address to the regional conference of the
8 American Judges Association in Atlantic City, New
9 Jersey, on my brain fingerprinting technique. I also
10 during that time met with members of the staff of the
11 House Intelligence Committee and Senate Intelligence
12 Committee to advise them on matters that have to do with
13 my research.
14 Q We're talking about the resume.
15 MS. HIGGINS: Objection, Your Honor. I think
16 he is trying to explain about it.
17 THE WITNESS: I also
18 THE COURT: Dr. Farwell, I realize you
19 haven't testified before, sir, but let me ask you to
20 please answer only the question that is asked of you.
21 THE WITNESS: Well, I think what I was doing
22 was explaining why it is that he got a resume that
23 looked like that.
24 THE COURT: The first question asked was
25 whether it was prepared for purposes of this hearing.
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1 If you could answer that question first then if you need
2 to explain, please indicate that.
3 THE WITNESS: I understand, Your Honor. Yes,
4 I did.
5 BY MR. DANIELS:
6 Q Is it fair to summarize what you're saying
7 here is that you were busy on other things without going
8 into all the people you were talking to and where you
9 had lunch or anything like that? See what I mean?
10 A Yes. But the reason that I elaborated was
11 because I was busy with things that were directly
12 relevant to my expertise in this field. I wasn't just
13 having lunch with somebody. So, yes, you got a resume
14 that was prepared while I was traveling. I got a phone
15 call about this and I prepared very quickly.
16 Q Why didn't you use the resume that you
17 already had prepared, your vitae, that certainly as a
18 professional scientist you would already have?
19 A As I said I was in Washington, DC. I didn't
20 have access to my laboratory. I put together something
21 quickly. I made some revisions in it quickly. It
22 wasn't the correct format. I apologize.
23 Q But you prepared this in Washington, DC? The
24 entire thing?
25 A Most of that information was on a computer
BETTY J. LANPHERE
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1 that a colleague of mine had, but I did actually put
2 much of it together. And, in fact, there are typos in
3 this. It was pointed out to me. I did it very quickly.
4 Q How about the material above the line on the
5 first page? Is that something
6 A That's what I'm saying. There are typos in
7 that material.
8 Q If one calls that phone number and gets a
9 recording, there is no such number; isn't that correct?
10 THE WITNESS: Didn't you do that, Ms.
11 Higgins? I'm sorry I can't answer your question.
12 BY MR. DANIELS:
13 Q Did you know your own phone number?
14 A I believe Ms. Higgins pointed out and called
15 that number and found out that it was not correct. Yes,
16 the number is not correct.
17 Q You put on this resume, President and Chief
18 Scientist of the Human Brain Research Laboratory, Inc.;
19 is that correct?
20 A That's correct.
21 Q Basically that is your own company, isn't it?
22 A Yes, it is me and in some cases employees or
23 other consultants.
24 Q How many fulltime employees does the Human
25 Brain Research Laboratory, Inc., have?
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1 A That varies. And the max has been about ten
2 and the current is two.
3 Q Two being yourself?
4 A Yes.
5 Q The chief scientist?
6 A Yes.
7 Q How many other scientists are there?
8 A One, Dr. Nash Thompson.
9 Q Dr. Nash Thompson is a scientist, you're
10 telling us?
11 A Yes, Ph.D.
12 Q He has a Ph.D. in education, doesn't he?
13 A If you're going to exclude Ph.D. in education
14 from the field of science, I think you might find some
15 objections.
16 Q Is the answer yes?
17 A Yes, he is a scientist and has a Ph.D. in
18 education.
19 Q He is basically a businessman, isn't he?
20 A He is a business consultant. He is also an
21 educational training consultant.
22 Q He does not do scientific research in your
23 human brain fingerprinting, does he?
24 A No, he does not.
25 Q You are the only person there that purports
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1 to be a scientist in this brain fingerprinting; isn't
2 that correct?
3 A I not only purport but I am. It's a small
4 company. I'll stipulate to that or admit that, whatever
5 you want to call it.
6 Q So you're both chief scientists, junior
7 scientists and all scientists that deal with brain
8 fingerprinting in this Human Brain Research Laboratory?
9 MS. HIGGINS: Objection. Asked and answered.
10 Also argumentative.
11 THE COURT: Sustained. Let's go on.
12 BY MR. DANIELS:
13 Q You have listed right under that Harvard
14 University Medical School research associate?
15 A By the way I am not the only scientist at
16 Harvard Medical School.
17 Q I beg your pardon?
18 A I'm not the only scientist at Harvard Medical
19 School.
20 Q You are not at Harvard Medical School, are
21 you?
22 A Depends on your definition of "at."
23 Q Let's ask about that. Do you live in
24 Massachusetts?
25 A No, I do not. In fact, neither does my
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1 colleague, Dr. Pitman, with whom I collaborate although
2 he is on the faculty also.
3 Q Your answer is no?
4 A I said no.
5 Q Do you teach courses at Harvard University
6 Medical School?
7 A Research associates don't teach courses. No
8 research associate at Harvard Medical School does and
9 neither do I.
10 Q So the answer is no?
11 A Right.
12 Q Do you receive any salary from Harvard
13 University Medical School?
14 A No, I do not. Research associates sometimes
15 do and sometimes don't receive a salary. The reason I
16 am research associate there is due to my collaboration
17 in the research I described earlier on. It is an
18 intellectual appointment, not a financial appointment.
19 Q Does the paymaster at Harvard University
20 Medical School send you any partial payments at any
21 time?
22 MS. HIGGINS: Objection, Your Honor. I
23 believe that has been asked and answered.
24 THE COURT: You may answer the question,
25 Doctor.
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1 THE WITNESS: No.
2 BY MR. DANIELS:
3 Q Is there a reason you didn't put that
4 information here when you listed at the top of your
5 resume that you're a Harvard University Medical School
6 research associate?
7 A Is there a reason?
8 Q Yes.
9 A Well, I haven't seen the other people's
10 vitaes but I don't think they would list where they got
11 their money from either.
12 Q You have listed that, but right under that
13 you have not a single word about your professional
14 history, do you?
15 MS. HIGGINS: Your Honor, I am going to
16 object to this lining of questioning. I think that voir
17 dire of a person's qualifications is certainly
18 admissible. However, Dr. Farwell has explained the
19 condition under which he fashioned this CV. He is
20 certainly available to talk about his qualifications and
21 his background, but I think it is going to the point of
22 being argumentative to belabor any longer things that
23 are not included or things that are included in this CV.
24 It is simply not relevant to the voir dire of his
25 background and education and qualifications.
BETTY J. LANPHERE
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1 MR. DANIELS: I am going to look at his
2 qualifications, Your Honor, and my very next question
3 after that one is going to be one that goes to lack of
4 his qualifications in this case.
5 MS. HIGGINS: Your Honor, I continue to
6 object to that question. Mr. Daniels can voir dire on
7 qualifications but I don't think he can voir dire on
8 this particular document and why things are there and
9 why things aren't which has already been explained how
10 this document came into being.
11 THE COURT: I am going to overrule the
12 objection and let him ask the questions. Please try to
13 answer specifically to the questions, Dr. Farwell.
14 THE WITNESS: Yes, Your Honor.
15 BY MR. DANIELS:
16 Q There is nothing in this curriculum vitae
17 about your professional history, is there? Your work
18 history?
19 A My work history consists of after my Ph.D.
20 being holding the two positions that are listed here.
21 Now I can say, well, I held them this year and that year
22 and the other year. My present positions are the ones
23 the one present position is the one I held since I
24 got my Ph.D. The other position is one which I have
25 held, I obtained and have held since I got my Ph.D.
BETTY J. LANPHERE
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1 Q We asked through the U.S. Attorney for this
2 information that was not in there, didn't we?
3 MS. HIGGINS: Objection, Your Honor. The
4 witness may not be able to answer that. He may not know
5 what things Mr. Daniels has asked the Government.
6 THE COURT: I think Dr. Farwell can answer
7 that question.
8 THE WITNESS: I am familiar with an
9 interchange that took place I should say somewhat
10 familiar with an interchange that took place. I got a
11 call from Ms. Higgins or perhaps it was when we met
12 personally a couple of days ago and she said, "Well, I
13 need some more information about you. They've asked for
14 more information about your credentials." And I gave
15 her some additional information. I believe she put it
16 in a letter to you. Again, I was attempting to comply
17 insofar as I understood what the requirements were.
18 BY MR. DANIELS:
19 Q Dr. Farwell, I am showing you what has been
20 marked as Defendant's Y for identification and ask if
21 you have ever seen that before?
22 A I believe that this is the same letter that
23 Ms. Higgins showed me a couple of days ago. I guess it
24 was probably March 8th or might have been late the
25 afternoon of March 7th.
BETTY J. LANPHERE
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1 Q Does that reflect the information that you
2 gave to her about your professional history?
3 A Skimming through it, it appears to reflect
4 that, yes.
5 MR. DANIELS: Your Honor, we move Defendant's
6 Y into evidence.
7 (WHEREUPON, Defendant's Exhibit Y
8 offered into evidence.)
9 THE COURT: Any objection?
10 MS. HIGGINS: No objection, Your Honor.
11 THE COURT: It shall be admitted.
12 (WHEREUPON, Defendant's Exhibit Y
13 admitted into evidence.)
14 BY MR. DANIELS:
15 Q Now, Exhibit Y reflects that between the time
16 you received your bachelor's degree in 1973, there was a
17 tenyear gap there when you were not continuing your
18 professional education in psychophysiology; is that
19 correct?
20 A That's correct. Six years of that I was
21 involved in commercial real estate making money to go
22 back to graduate school.
23 Q You were selling real estate during those
24 years?
25 A I sold and it was commercial real estate so I
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1 both sold and invested in real estate during those
2 years.
3 Q And the letter also involved
4 psychophysiology; is that fair to say?
5 A That's fair to say. Now, I did in a small
6 way continued my interest. I did some research, for
7 example, in collaboration with Dr. Elizabeth Loftis at
8 the University of Washington. Primarily I was making
9 money to go back to grad school and that's what I did.
10 Q It also says, quote, "He also was involved
11 with the World Plan Executive Counsel in the study of
12 transcendental meditation." Can you explain that to us?
13 A You've asked me to be brief and it's a very
14 eloquent question.
15 Q What is the World Plan Executive Counsel?
16 A It's the organization internationally that
17 teaches the transcendental meditation program and other
18 affiliated programs. The headquarters are in
19 Switzerland.
20 Q And what did you do with the World Plan
21 Executive Counsel?
22 A Well, I worked administratively at the
23 headquarters in Switzerland for some time. I am also a
24 qualified transcendental meditation teacher. I have
25 taught that. I gave lectures. I did a number of other
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1 activities in furtherance of the goals of that
2 particular organization.
3 Q This was working with the maharishi that we
4 talked about?
5 A That's correct.
6 Q It says in 1983 that you attended the
7 University of Washington for one year. You did not
8 successfully complete that program, did you?
9 A I successfully completed what I went there to
10 do. You recall that it was in 1984 when I went back to
11 graduate school. During 1983 I was applying to graduate
12 school because I wanted to get a leg up in the course
13 work so I enrolled in courses at the University of
14 Washington. I was not involved in their degree program.
15 I was accepted at the University of Illinois and that's
16 where I went.
17 Q All right. And neither the World Plan
18 Executive Counsel nor the University of Washington did
19 you do anything with forensic polygraphy; is that
20 correct?
21 A That's correct.
22 Q It says you were then accepted into a
23 doctorate program at the University of Illinois. There
24 are no dates on the original CV that you provided, are
25 there, as to your years of matriculation and completion?
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1 A I think we have covered that.
2 Q Is that correct? When were you accepted into
3 the doctorate program at the University of Illinois?
4 A If I am remembering correctly, I started
5 there in the spring of 1974 and I was starting early. I
6 was accepted into the program for the fall of '74 so I
7 must have been accepted, say, in the fall of '73.
8 Q So there
9 A I'm sorry. I'm wrong. In 1984.
10 Q And it was eight years later that you finally
11 got your doctorate?
12 A Finally is the right word, yes.
13 Q And during all that eight years working on
14 your doctorate, you didn't do any work on forensic
15 polygraphy; is that correct?
16 A That's correct.
17 Q Is it fair to say that you have no personal
18 knowledge of the specific application of forensic
19 polygraphy for lie detection purposes?
20 A I'm sorry. Could you please repeat the
21 question.
22 Q Is it fair to say that you have no personal
23 knowledge of how to use the forensic polygraph technique
24 for detection of deception?
25 A No, it is not. I wouldn't think it would be
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1 fair to say that you have no knowledge of that.
2 Q Would you agree that maybe we both are at the
3 same level of knowledge of how to work this?
4 A Well, no. Absolutely not. Because as I have
5 said what I am trained to do as a psychophysiologist is
6 to measure psychophysiological measurements. Forensic
7 psychophysiology or conventional polygraphy is a very
8 specific application of those measurements. It is not a
9 separate field of science. In fact, it is very specific
10 application of science. No knowledge is not at all a
11 correct characterization of what I have.
12 Q Do you know that forensic polygraphers who
13 have done testing and use of the technology have
14 determined that there is a scientific basis and that the
15 results are in the range of 90 percent accurate? You
16 know that, don't you?
17 A No, I do not. In fact, there are a number of
18 scientists who would peg the accuracy rate. And if I am
19 allowed to testify, I'll testify to this at more like
20 chance for an innocent subject and 70 percent for a
21 guilty subject.
22 Q Do you understand my question?
23 A I think I understood your question.
24 Q Do you know there are scientists in the field
25 who have studied and done laboratory studies who have
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1 come to those conclusions?
2 A I believe there are scientists in the field
3 who have come to those conclusions. There are
4 scientists who I know and respect in that field who have
5 come to very, very different conclusions.
6 Q Do you know and respect Dr. Barland?
7 A Yes, I do.
8 Q Are you familiar with his position on it?
9 A Yes, I am.
10 Q Do you know that he believes in the
11 scientific validity of it, don't you?
12 A Yes, I do.
13 Q Do you know why there is not a single witness
14 who has conducted laboratory studies on the forensic
15 polygraph technique who is going to come in here and say
16 it does not work? Do you have any idea?
17 A I am not sure I can answer that question.
18 First of all I can't go into the minds of all of the
19 scientists who studied it. Also, I'm not sure that in
20 order to show that it shouldn't be admitted in court one
21 has to show that it does not work.
22 Q Were you ever told why you personally were
23 told to come testify on this specific issue? Did the
24 Government ever share why they were bringing you in as
25 opposed to the people who have conducted tests and
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1 studies on this technique?
2 A As opposed to people who have conducted tests
3 and studies on this technique, I don't think that was
4 discussed with me. I certainly don't remember them
5 having it discussed with me.
6 MR. DANIELS: Your Honor, I have no further
7 questions on the qualifications. I think this witness
8 is not qualified to testify on the issue before this
9 court. He may have expertise in some areas but
10 certainly not on the validity of the application of the
11 underlying scientific techniques to detection of
12 deception in the manner that we have been talking about
13 in this case.
14 MS. HIGGINS: Your Honor, the Government
15 strongly disagrees with that. What Mr. Daniels has been
16 doing is showing that Dr. Farwell lacks expertise as a
17 forensic polygrapher. I did not offer him as an expert
18 in forensic polygraphy. I offered him as an expert in
19 the field of psychophysiology. I believe that by virtue
20 of his knowledge, skill, experience, training and
21 education he is an expert in the field of
22 psychophysiology and that he ought to be accepted as an
23 expert in that field and allow to testify within the
24 confines of that expertise.
25 THE COURT: That's the question. Within the
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1 confines of that expertise, what specifically are you
2 trying to elicit from this witness?
3 MS. HIGGINS: Your Honor, I plan to ask Dr.
4 Farwell to talk about the scientific method specifically
5 as it is applied in the field of psychophysiology and
6 more specifically based on his review of some of the
7 accuracy studies that have been done relating to
8 forensic polygraphy. Whether in his opinion based on
9 his training and so on the field of psychophysiology and
10 as a scientist whether the scientific method has been
11 used in constructing and carrying those studies forward.
12 I am not asking him to offer testimony as a
13 forensic polygrapher having to do with those studies.
14 And I think that's an important distinction because it
15 seems to me there is a blurring of the categories
16 sometimes in these inquiries. There is a tendency to
17 try and boost polygraphers as being the scientific or
18 relevant community when, in fact, they often function
19 more as technicians. It is the psychophysiologists who
20 have provided the underlying theories of principles by
21 which they are even allowed to carry out their tests.
22 So it is to the field of psychophysiology that we have
23 to go to get some sense of the science underlying these
24 things.
25 MR. DANIELS: Your Honor,
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1 THE COURT: This is not a case of the average
2 polygrapher though. We are not at this time
3 entertaining the entire discussing, entire practice of
4 the known polygrapher giving a polygraphy. We're
5 talking about Dr. Raskin. And if I have misunderstood
6 what it was that you were offering this witness for, I
7 am concerned about this witness testifying anywhere near
8 the area of forensic polygraphy. I think it is clear
9 that he cannot comment on the specific application of
10 whatever psychophysiological principles he wishes to
11 discuss.
12 The application of those principles to
13 forensic polygraphy is going to be the area where he
14 will have to be cut off. If I understand you correctly,
15 then this witness is being brought to basically testify
16 as to his opinions about the studies that Dr. Raskin has
17 testified to to form a scientific basis and validity
18 with the forensic polygraphy?
19 MS. HIGGINS: Your Honor, yes, and
20 specifically the construction that is was the scientific
21 method actually used in constructing lab, field and
22 panel studies. Is there an underlying scientific
23 method, scientific validity to the construction of those
24 tests.
25 THE COURT: Okay. My concern now is that the
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1 evidence that we have heard is basically that he is
2 well, I don't know that we have heard enough evidence
3 for him to comment or give his expert opinion on those
4 underlying tests either. I would like you to address
5 that, Mr. Daniels. We don't have the issue that I was
6 concerned about.
7 The Court cannot accept this witness as an
8 expert witness to apply the principles in his field of
9 expertise to the application of forensic polygraphs.
10 However, now for the purpose of addressing whether the
11 underlying scientific tests are valid is a different
12 issue. Mr. Daniels, what is your position on that?
13 MR. DANIELS: Your Honor, I think he has
14 already established that he has not been involved in any
15 of those tests and he has no more expertise than if you
16 brought in an engineer who has studied the scientific
17 method to review the forensic polygraph literature and
18 talk about whether the tests in there complied with the
19 scientific method. It's just apples and oranges.
20 There are people who are adversaries of the
21 polygraph who have been involved in those studies. They
22 are a small minority but they exist. People with that
23 kind of expertise. Those people, even though we
24 disagree with them, we would object to their
25 qualifications any more than we would object to the
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1 qualifications of an eminent polygrapher such as Dr.
2 Barland. But he does not have expertise in this area.
3 MS. HIGGINS: Your Honor, I would object to
4 the characterization of bringing in engineers to talk
5 about underlying scientific methods. Dr. Farwell is a
6 psychophysiologist.
7 THE COURT: The problem that I am having is
8 that what you're proposing would mean that does any
9 psychophysiologist with the normal training that is
10 attended that position have the ability to come into a
11 courtroom as an expert witness and comment on the
12 validity of field tests and lab tests in the field of
13 forensic psychology?
14 That's my concern is that by virtue of his
15 education and training we establish sufficient
16 foundation to allow him to comment on field tests and
17 lab tests when the source of that information will be
18 reading from those articles that have been prepared not
19 actually working with the individuals or any independent
20 studies aside from the reading of the articles to form a
21 scientific basis for this area.
22 MS. HIGGINS: Your Honor, the Government
23 submits that it is absolutely appropriate for Dr.
24 Farwell first of all to be able to evaluate the studies
25 based on studies he has done in a related area with
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1 respect to whether those studies are based on the
2 scientific method and have underlying scientific
3 validity.
4 And secondly because he is able to do these
5 comparisons, he is not just coming out of left field
6 having no idea how these kinds of things are done. He
7 has studied the autonomic nervous system. He has
8 studied the responses that are generated in that
9 process. His research is slightly different but it is a
10 related field. And so it is not as though somebody with
11 a completely unrelated field is coming in to talk about
12 it.
13 The Government submits he has by virtue of
14 his education and his training and his research the
15 ability to give a general scientific opinion about as I
16 have said the construction of the studies. And even
17 though he has not himself participated in the studies
18 that is also true of Dr. Honts and Dr. Raskin. They
19 have participated in number of studies but not all the
20 studies. And yet I'm sure they feel free to comment
21 very freely and very vigorously about studies done by,
22 for example, Dr. Iacono, somebody who is at odds with
23 them. They certainly feel free to comment on Dr.
24 Barland's studies.
25 THE COURT: But we're talking about
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1 individuals that are all participating in the same type
2 of work.
3 MS. HIGGINS: Yes, Your Honor, I understand
4 that.
5 THE COURT: And the formulation of those
6 studies. This is a major significant difference that we
7 have here, and it appears the foundation that you have
8 laid so far to be lacking in Dr. Farwell. And I don't
9 know if you have the ability to lay further foundation,
10 but from what I have heard at this point I don't think
11 that he meets the requirements of Rule 702 to testify as
12 you have offered him.
13 MS. HIGGINS: Your Honor, I don't think that
14 there is much more that I can elicit from Dr. Farwell
15 that would change your mind on that point. I would like
16 to tell the Court that, for example, in the field of DNA
17 admissibility that experts have testified who have no
18 experience with the forensic application of DNA
19 technology and yet have been allowed to testify in this
20 very courtroom to underlying scientific principles and
21 underlying scientific methodology.
22 THE COURT: But you're not offering him for
23 that purpose. That's what I am confused about.
24 MS. HIGGINS: And they have not been offered
25 for that purpose either. And that I guess is my point.
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1 The point of the Government is that in order for this
2 evidence to be admissible at bedrock there has to be
3 scientific validity in how the tests were constructed.
4 For example, the accuracy test and how they have been
5 interpreted. Whether the factors used to construct them
6 or the elements used to construct them made sense
7 scientifically.
8 And by virtue of being a psychophysiologist I
9 think this witness can testify about that even though he
10 did not himself participate in those studies and even
11 though he himself is not a forensic polygrapher.
12 THE COURT: I agree with everything that
13 you've said except for the fact that we do not have any
14 evidence in the case indicating that he has any
15 education or particular experience in evaluating the
16 types of tests that were conducted.
17 MS. HIGGINS: I can ask him if the Court
18 would wish.
19 THE COURT: Go ahead.
20 BY MS. HIGGINS:
21 Q Dr. Farwell, you have heard the Court's
22 concern?
23 A Yes.
24 Q What expertise or what do you know about the
25 way that the tests you have looked at, the accuracy
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1 tests for forensic polygraph, what do you know about the
2 way they were constructed and on what do you base that
3 knowledge?
4 A All right. What we are specifically talking
5 about here is a series of charts, results of
6 psychophysiological measurements on a particular
7 individual that were elicited by a procedure instigated
8 by Dr. Raskin. Now, as a psychophysiologist what I am
9 trained really primarily in in addition to the
10 acquisition and analysis is experimental design.
11 So what I would need to evaluate as an expert
12 would be whether what I heard on the tape of Dr. Raskin
13 and what he said and what he did and so on during the
14 period of about an hour, hour and a half in which he
15 produced this response whether that was according to the
16 kind of principles of scientific control that are
17 demanded in my field of expertise.
18 THE COURT: Let me stop you at that point. I
19 did not understand you to be offering him to do any such
20 analysis.
21 BY MS. HIGGINS:
22 Q No. And actually, Dr. Farwell, what I was
23 asking about for the accuracy studies, the underlying
24 studies on which all of this is deemed to be valid. And
25 I believe that there were three studies, at least three
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1 studies specifically that you reviewed for testimony in
2 this case. And the question is what do you know about
3 those studies and on what do you base your knowledge?
4 A In order to comment about accuracy we need to
5 define what it is that is being accurate. And in my
6 field when I review a paper for publication, I need to
7 look at the specifications that the scientist has made
8 as to exactly what he did to produce the
9 psychophysiological responses that were recorded. What
10 I expected to testify about and I was using this
11 particular chart
12 Q Wait. Let me stop you, Dr. Farwell. Excuse
13 me, Dr. Farwell. Specifically the accuracy studies that
14 you reviewed for this case, what do you know about them?
15 And what do you know about the construction of those
16 studies that would allow you to testify about them and
17 whether they do or do not relate to the scientific
18 method?
19 A I am afraid you have to repeat the question.
20 I realize it's a friendly question but I don't really
21 quite understand it. Could you please repeat the
22 question or rephrase the question?
23 Q I have told the Court that one of the areas
24 that you might testify about had to do with the accuracy
25 studies. You have an opinion as to their validity?
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1 A Yes.
2 Q And you have reviewed certain studies that
3 you were going to use to illustrate your opinions; is
4 that correct?
5 A Yes.
6 Q How do you know about these studies? What do
7 you know about them?
8 A Well, in any
9 Q First of all, excuse me, did you review them?
10 A Yes, I did.
11 Q All right. And have you done similar studies
12 in your own research?
13 A Well, yes. What I do is I set up I set up
14 an experimental protocol which is designed to elicit
15 certain psychophysiological responses and what I am
16 trying to do is to establish proper scientific controls
17 for such a protocol and to give to have expert
18 knowledge on whether a particular hypothesis is being
19 properly tested and whether we have eliminated the
20 possible alternative or probable alternative hypothesis.
21 Q And would you then compare what you have done
22 in your own studies with your understanding of how these
23 other studies have been constructed and how they were
24 carried forward?
25 A Yes. And many of the things are similar. I
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1 mean the specific measurements may be from the head
2 rather than the hand, but many of the experimental
3 design issues for example, sampling of subjects and
4 criteria for the ground truth of the result. Those kind
5 of things are common.
6 Q All right. Thank you.
7 MS. HIGGINS: Your Honor, do you have any
8 other questions that you would like to ask about this
9 that perhaps I have not asked?
10 MR. DANIELS: Without belaboring all of the
11 previous things that have been said, Your Honor, we
12 stand on our objection. I think Dr. Farwell is far out
13 of his league in this particular issue before this
14 Court. There is no evidence he has ever performed any
15 scientific evaluations of any lab or field studies.
16 Never even reviewed a submitted article on them, has no
17 expertise in this area. We object to the testimony.
18 THE COURT: I am going to sustain the
19 objection.
20 MS. HIGGINS: I understand, Your Honor.
21 THE COURT: Is this the only reason that you
22 called Dr. Farwell?
23 MS. HIGGINS: Yes, it is, Your Honor.
24 THE COURT: Dr. Farwell, thank you for your
25 testimony. I appreciate you having come and waited
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1 yesterday. Please understand that the Court's ruling
2 has nothing to do with your particular qualifications.
3 We're dealing with a very specific issue at this point.
4 THE WITNESS: Thank you very much, Your
5 Honor.
6 THE COURT: You may be excused. You may
7 proceed.
8 MS. HIGGINS: The Government calls Gordan
9 Barland.
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