MR. BARTH Thank you, Your Honor. The United States would call James Murphy.
JAMES K. MURPHY having been duly sworn upon his oath, was examined and testified as follows:
DIRECT EXAMINATION BY MR. BARTH:
A. Since 1989.
Q. And prior to that, did you serve in the FBI polygraph unit?
A. Yes, I did.
Q. For how long?
A. I served in the unit from 1980 to 1985 as a supervisor.
Q. What type of training in polygraph have you had, sir?
A. I received by basic polygraph examiner training at Fort McClellan, Alabama. This was the United Statesí only military polygraph school. It is now called the Department of Defense Polygraph Institute, but the only thing that changed was the name. I received that training in 1978. I graduated in April of 1978 and was later certified by the FBI laboratory as a polygraph examiner.
Q. And would you briefly describe to the Court what your duties as the supervisor of the FBI polygraphóIím sorry, the chief of the FBI polygraph unit are?
A. As chief of the polygraph unit of the FBI, Iím the program manager. As such, Iím responsible for the selecting and training of polygraph examiners, insuring their continuing education, assigning individuals to particular cases. Iím also responsible for the quality assurance program. Any polygraph examination that is conducted by the FBI must come through the laboratory for a final review. Iím also responsible for establishing, enforcing guidelines, and specific regulations for the use of polygraph within the FBI.
Q. Have you received any specialized training in addition to the Department of Defense school in polygraph?
A. Yes. I have ongoing training for myself as well as the other agents that work for me. I was trained by the University of Virginia in psychophysiology. I received 12 credits in advanced graduate level degree work. I also, on a regular basis, attend seminars and classes at Quantico, the FBI academy, as well as attending seminars put on by the American Polygraph Association on an annual basis.
Q. And have you ever been certified as an expert in any federal district court concerning polygraph examinations?
A. Yes, I have.
Q. And how many courts has that been in?
A. The United States District Court in Los Angeles, United States District Court for the Northern District of Florida, United States District Court for the Southern District of New York, United States District Court for the Northern District of Indiana.
Q. And could you give the Court an idea of approximately how many polygraph examinations you personally have conducted?
A. Personally, to date, Iíve conducted approximately 850 polygraph examinations.
Q. And you indicated that you were involved in quality control review. Does that mean that you examine the results of other polygraphersí examinations?
A. Yes, it does.
Q. And can you give the Court an idea of approximately how many tests of other polygraphers that you have reviewed?
A. Since 1980 when I first took up the position as supervisor within the polygraph unit until today, Iíve reviewed in excess of 10,000 polygraph examinations.
Q. And you indicated 1980. Were you reviewing polygraphs as a member of the unit prior to 1980?
A. Not prior to 1980, no, sir.
Q. So if your CV says 1978 --
A. I became a polygraph examiner in the Washington field office in 1978, and my job was solely to conduct polygraph examinations.
MR. BARTH: Your Honor, at this time we would tender to the Court Governmentís Exhibit 1, which is the curriculum vitae of this witness.
MR. DANIELS: We have no objection to that admission, Your Honor.
THE COURT: All right. Thank you.
Q. (BY MR. BARTH) Do you also serve on a federal inner agency study group concerning polygraph?
A. Yes, I do.
Q. Would you tell the Court what this is, sir?
A. I presently am a board member of a group of senior federal examiners from not only the law enforcement side, but also the Department of Defense Side of the polygraph community. As such, Iím responsible for, along with the other members, developing and establishing standards for the use of polygraph within the federal community.
Q. And what other agencies serve on that board, sir?
A. Itís comprised of individuals from the Central Intelligence Agency, the Department of Defense Polygraph Institute, the Bureau of Alcohol, Tobacco and Firearms, the Naval Criminal Investigative Service and, I believe, the United States Postal Service.
Q. Now, Agent Murphy, would describe to the Court or can you give the Court an idea approximately how many polygraphers are employed by federal law enforcement agencies?
A. The federal side, I believe thereís approximately 400.
Q. And your views that youíre testifying to today, do those reflect the views of the Department of Justice as it relates to polygraphs?
A. Yes, the Department of Justice.
Q. Would you tell the Court what use of the polygraph is made by the FBI in its law enforcement capacity?
A. We use it as an investigative tool or a technique in a support capacity.
Q. And would you give the Court an idea what you mean by that?
A. We use it in conjunction with criminal investigations, but we have strict guidelines on its use and prohibit individuals from any attempt to enter it into court as evidence. We also establish guidelines in which the results cannot be used outside of the other evidence that may be developed during the course of the other evidence that may be developed during the course of a normal investigation. We also do not use itó
THE COURT: I didnít understand what youíre saying. Canít be used outside of the courts?
THE WITNESS: As part of a practical matter during operations, we do not use the results of polygraph examinations to the exclusion of other evidence developed during the course of an investigation. We consider it one part of the investigation.
Q. (BY MR. BARTH) Is it ever considered in a criminal investigation the ultimate factor?
A. No, it is not.
Q. Now, why is that?
A. There are a number of reasons, not the least of which is that there is not hard evidence or hard scientific studies that demonstrate the true validity of the polygraph.
Q. And, obviously, you and other agencies of the government feel that there is some reliability of the polygraph; is that correct?
A. Yes, sir.
Q. And what level of reliability would you place on the polygraph?
A. Well, when weíre talking about reliability, weíre talking about consistency and weíre talking about validity and weíre talking about accuracy. Reliability could be affected by the quality of the examiner, the conduct of the examination, also by the review of the charts afterwards. As long as there are standards in place and these are acceptable standards within the agency, theótheyíve been established, then the reliability can be very high.
However, the validity, which means accuracy, as I said before, and by accuracy I mean, will it detect deception, will it tell if an individual is lying or truthful or not, we donít have a significant amount of good scientific research that will demonstrate its true validity. We have a lot of empirical data, data which is not based on science but is based on experience that we can use as a toll to judge its validity.
Q. And I believe you indicated that it depends on the skill of the examiner?
Q. Would you elaborate on that, please?
A. The individual who is well trained, who participates in continuing education, who is made to measure up and to abide by the regulations and standards that are set for polygraph can be an effective polygraph examiner. But throughout the community I donít find this to be true. I donít believe that there are standards that are set under which all examiners must be trained or under which all examinations must be conducted or under which all examination polygraph charts are reviewed.
Q. Agent Murphy, are you aware of any uniform polygraph standards that are accepted and used by all people conducting polygraphs in the United States?
A. Iím aware of some standards, but Iím also ware of the fact that there is no agency, group, or individual who is capable of enforcing them. Therefore, you have a wide variance in training, education, and conduct of polygraph examinations throughout the United States.
Q. And do you consider another limitationóyou indicated skill, and you talked a little bit about training. Is there a minimum level of training thatís required for someone to go out and claim that theyíre a polygrapher?
A. For the federal government, thereís a minimum level, but in private business, private industry, I think that the standards vary.
Q. Are you aware, do any states have particular standards for polygraph examinations?
A. Iím aware that some states do have laws, licensing laws, other states donít. Iím aware that some states are able to enforce those laws, other states do not enforce the laws regarding polygraph.
Q. Now, Agent Murphy, specifically, you talked about polygraph being used in criminal investigation by the federal government and itís a factor. What other use does the FBI make of polygraph examinations?
A. We use them in counterintelligence investigations. We also use them in internal investigations, and we also use them in applicants processing; thatís preemployment polygraph examinations.
Q. Now, would you give the Court an idea of what weight the FBI places on polygraph as it relates to applicant processing?
A. As far as applicants are concerned, we use it as a determinative for preemployment. We found that through our data this is a separate area and can be reviewed as such and which we have a higher degree of confidence in the results of the polygraph examinations than in any other areas. There are a number of reasons for it being so high in applicant testing as opposed to criminal and other areas.
Q. And could you explain to the Court why thatís so?
A. In an applicant polygraph examination, the individuals are generally a lot more intelligent, theyíre easy to focus in on the questions, the test questions are narrow, the individuals are not sensitized before an examination.
THE COURT: What do you mean by that?
THE WITNESS: Theyíre not overly grilled or questioned, theyíre not accused of anything, theyíre not interrogated beforehand. The questions are rehearsed with them. They donít go into an extended interrogation. This is not an adversarial situation. It is voluntary by the applicant. And, also, the FBI used a very high standard for failure in an applicant examination, thus favoring the applicant in all cases.
Q. (BY MR. BARTH) Would you elaborate on that a little bit more, that you use a high standard in applicant cases?
A. We know that thereís variances in the conduct of examinations and which will affect the validity, which is whether or not a person is telling the truth or not. So in order to have a particular program thatís on balance and objective, weíve engineered the review of the polygraph results as well as the testing formats to favor the examinee or the applicant. By that I mean for an individual to fail a polygraph within the FBI when applying for a job, we have them demonstrate in all categories a specific significant response that we have 100 percent confidence in. We also have the luxury in this particular process of giving two polygraph examinations to the applicant, and we know from base rate data that individuals that take the first test which focuses on counterintelligence issues almost always pass. In fact, we have a failure rate of about .05 percent in that area.
Q. Can you give the Court an idea, based on your experience, why you believe that is true?
A. The questions asked on the first examination deal with counterintelligence issues. We specifically ask the individuals if theyíve ever been in contact with anybody from a foreign intelligence service and were they directed to seek employment with the FBI. And the population is such that we donít have individuals who generally are in touch with people involved in espionage. The base rate is very , very low in those areas for people with a probability of an individual who would have been in touch with somebody from a counterintelligence service. So we give that polygraph test and after itís complete, we then have charts that we produce that we compare to the second polygraph test.
And the second polygraph test deals with sale of illegal drugs, the use of illegal drugs outside the established FBI guidelines and falsification of the application for employment. Weíre able to compare those two tests. Secondly, we also know that on the second examination most of the people that fail fail on the question on using drugs more than they told us about or violating the FBI guidelines. In over 70 percent of those cases, we validated the examination through confession or through admission by the applicant at the time of the test.
Weíre also able to support the validity of that examination by the fact that independent studies conducted around the country by major universities, new organizations have established that use of illegal drugs in this country is a real problem wand itís an increasing problem to certain age groups. So the base rate for an individual to have used illegal drugs is high, and the base rate for an illegalóindividual that has used drugs more than the FBI guidelines is also high. So weíve supported our validation through the statistical base rate, including all the elements Iíve just explained.
Q. And achieve what you consider an amount of reliability as to the test as it relates to those two subjects?
A. Yes, thatís correct.
Q. And would you give the Court an idea of approximately how many polygraphs are administered by the FBI in a typical year?
A. This year we will do approximately 10,000 polygraph examinations.
Q. How many of those relate to employment issues?
A. About 5,000.
Q. And the other 5,000 relate to what?
A. The other 5,000 areówill relate to criminal, counterintelligence, and employee security where we process individuals for clearances within the agency, as well as internal investigations.
Q. Of those 5,000, approximately what percentage are criminal cases?
A. Probably 55 percent.
Q. Now, Agent Murphy, you talked about doing review of polygraph exams, and I believe you indicated that you have reviewed approximately 10,000 polygraph exams?
A. At least 10,000 exams.
Q. Do those run the gambit of criminal cases, counterintelligence cases, and employment cases?
A. Yes, they do.
Q. Would you give the Court an idea ofówhen youíre reviewing, youíre reviewing someone elseís test?
A. Yes, sir.
Q. Would you give the Court an idea of how often you reach a different conclusion when you review someone elseís polygraph test?
A. Approximately ten percent of the time.
Q. Okay. And the tests that youíre reviewing, are the employment ones, employment examinations are all ones that are conducted by FBI polygraphers?
A. Yes, sir.
Q. Now, when youíre reviewing polygraph results in criminal cases, are you reviewing the work of polygraphers that are often employed by counsel for the defense?
Q. Could you give the Court an idea how often youíve done that?
A. Approximately ten times a year.
Q. Okay. And would you give the Court an idea ofóin those kind of cases, Iím assuming they are criminal cases, where you reach a different result than the polygrapher that conducted the examination?
A. Over 50 percent of the time.
Q. Now, youíre familiar, are you not, with the factors ofóthe so-called Daubert factors?
A. Yes, I am.
Q. Let me show you a chart. This is a defense exhibit listing the Daubert factors, and Iíd like to go through them with you. Factor oneóitís not an exhibit, itís just a chart for demonstrative purposes.
Does the evidence have its basis in scientific principles and methodology? Agent Murphy, in your opinion, does polygraph and the results of polygraph have its basis in scientific principles and methodology?
A. Polygraph has some scientific underpinnings; however, the results of the polygraph examination is a leap from science. The reason I say that is there is no hard evidence, nor is there any hard research that can demonstrate conclusively polygraph as a science.
Q. What type of research or evidence would you be looking for to where you would feel comfortable saying that polygraph has a basis in scientific principles and methodology?
A. In response to that question, let me just demonstrate to you that the research that has been done on polygraph has been done in mock crime conditions and in laboratory conditions. Weíre unable to do it any other way. You just cannot simulate in a mock crime situation or in laboratory conditions what occurs in real life and; therefore, you cannot simulate an individual as a person stimulated during the course of a real polygraph examination.
Q. And, as I understand it, polygraph is based on the theory that when someone is being deceptive, that all human being exhibit a certain uncontrolled response, a physiological response; is that correct?
A. Again, thereís a number of different theories, and that is one of them. There is a postulated individual response because of guilt, because of conditioning, because of conflict, and also because of fear. But the principle is that an individual will identify a particular question that is most threatening to their well-being if the truth were known and that will mobilize within themselves defense mechanisms which will manifest themselves in the form of changing heart rate, skin response, and perspiration.
Q. And, Agent Murphy, are you familiar with some of the studies that have been done in the field that claim that polygraph does have a basis in scientific principles and methodology?
A. Iím familiar with some of them to the point where Iíve read many of them.
Q. And have you read any of the work of Dr. Raskin?
A. Iíve read some of his work.
Q. What about Dr. Honts?
Q. And do they operate from the same basis premise?
Q. What is the difference between the premises that they operate from?
A. I believe their methodology in conducting the research projects as being scientific in the sense that theyíre able to determine from a known or an unknown a known quantity. Unlike other scientific research conducted in the laboratory where we have an unknown, say, in fingerprints, a latent fingerprint, that weíre able to establish from a known that they match, you cannot do that with polygraph the way research is being done today, nor do I see any way for us to get around that.
Q. So would you consideróitís almost as if youíre comparing apples and oranges. Is that a fair assessment?
A. Yes, itís pretty fair. I would say by way of my background in the laboratory, weíre very conscious of the protocols necessary when we are dealing with hard science, fingerprints, ballistics, serology, DNA, we realize that in order to come up with a scientifically accepted technique, we not only have to have standards, but it has to reach that acceptability within the community, and research is the only way to do that. We do that in those areas, weíre unable to do that in polygraph.
Q. You mentioned fingerprints, blood evidence, DNA. Those are all things that, if they are in a criminal case, itís evidence that is left behind at a crime scene as an unknown?
A. Yes, in most cases.
Q. And you can take a known later and compare the two to determine if they, in fact, came from a common source?
A. Yes, sir.
Q. And in polygraph you cannot do that; is that correct?
A. Thatís correct.
Q. Because the polygrapher is attempting to recreate the situation after the fact?
A. To some degree. The polygrapher is relying on his empirical data, and heís also relying on other information thatís factored in during the course of an investigation.
Q. Weíll get to that in just a minute. The second factor listed on this chart is, Has an application of the scientific principles been tested? What is your opinion on that, sir?
A. No, it has not been tested.
Q. Would you explain to the Court why you believe that?
A. When I say no, Iím referring to the actual results of the polygraph. Iím not referring to the psychophysiological aspects of the polygraph because I believe that is a science and that can be tested. But itís a giant leap to go from psychophysiology to the results of a polygraph and attribute either truth or deception.
THE COURT: What youíre saying is that the leap is bridged by some people by relying on empirical data?
THE WITNESS: Yes, sir.
Q. (BY MR. BARTH) Is it your belief that there is not any scientific data that would support the leap?
A. Thatís not enoughówell, I donít know any scientific data that will support the leap to the results of the polygraph as being 100 percent valid.
Q. And in terms of the results of the polygraph, what are the variable factors that would weigh in that would affect the results?
A. Thereís a number of variable factors. Number one is the training and the education of the individual giving the test, the conditions under which the examination was given, the questions themselves, the physical condition of the person being tested, the emotional state, whether or not the individual has been sensitized to the issues under investigation. Of course, the final is the subjectivity in reviewing the results of the polygraph, meaning the charts themselves, the scoring technique used, as well as the conclusion that the examiner reaches.
Q. Letís go back and examine a couple of those factors, Agent Murphy. What do you mean when youíre talking about a variable being the conditions under which the examination is conducted?
A. If a person is tested in a hostile environment or a less than clinical atmosphere, it can cause an individual to be over sensitized on a particular issue.
Q. Give us an example of a hostile environment.
A. The suspect was questioned about something for a long period of time, accused of something, and then escorted to the polygraph suite, and the examiner himself or herself also questioned him solely on that area and made references to their probable guilt, I think that would cause a problem on the polygraph and it would certainly affect the validity of the results if the person failed.
Q. As I understand that then, it could be a third party that could overóor desensitize a person prior to a polygraphó
A. Sensitize or desensitize, yes, sir.
Q. How would one do that?
A. Well, and individual will sayóconversely, an attorney who is representing a client and heís sending him for a polygraph examination could desensitize an individual by perhaps instructing the individual to take the polygraph test, results are meaningless, itís not going to have an impact on your situation.
THE COURT: Iím not sure I followed that. Could you restate that?
THE WITNESS: Yes. Prior to a polygraph examination, an individual could, if they knew they had control over the results of the polygraph test, in other words, it wasnít going to be published, it couldnít be used against them if they failed it, could, in fact, convey that to the examinee or individual taking the test and desensitize them to the point where that would not be meaningful as an issue, whatever the relevant question was, whatever the issues they were being tested on.
Q. (BY MR. BARTH) How would that process desensitize the individual?
A. Well, it could make the focus of the test meaningless in the sense that it wasnít significant and therefore there was no need to concern themselves about it, they wouldnít necessarily fear the test, they wouldnít necessarily feel anything about that particular question.
Q. So if I understand this, what youíre saying is if someone is told by a third party prior to a test, "Donít worry whether you pass it or fail it, if you pass it, we might give the results up, if you fail it, we wonít ", that may have an effect on the person taking the test?
A. That could impact the results.
Q. And how is that?
A. Well, youíve removed the fear of detection from the person. They know they control the outcome of the examination. They know the results are going to be controlled and therefore they will feel the test meaningless.
Q. And are there any studies that have been done on that, because the laboratory would be the only way, I assume, you could establish that?
A. Well, Iím sure thereís been some kind of studies done on it. I have reviewed articles that were written on it, not the studies themselves, and I find that thereís insufficient data to defeat that as a premise.
Q. And you also indicated another factor would be the physical condition of the person being examined. Would you elaborate on that?
A. Yes. If the individual was under the influence of drugs or even some over-the-counter drugs or if the individual wasóstayed up all night or fatigued or not mentally alert or perhaps couldnít focus in on the examination, that would affect the results because what weíre measuring, of course, are responses to questions as they affect the psychophysiological responses from an individual.
Q. Now, let me ask you a little bit about that, Agent Murphy. What type of drugs might affect a person that it would have an effect on the polygraph examination?
A. Well, thereís a wide range of them. I donít know all of them, but your beta blockers, certainly some over-the-counter type of drugs, something like Contact. Any of the antihistamines, if you just look on the label, they may say that the use of the pill can affect drowsiness or cause sleepiness, that would affect your autonomic nervous system and reduce the responses on the polygraph test.
Q. And letís say someone is under the influence of one of those type of substances, what type of a reaction would you expect to see during the polygraph examination?
A. You would get no reaction, youíd get almost a flat line. The individual would not be able to exhibit responses necessary to measure them.
Q. And what effect would that have on the polygrapher who is reviewing the results of the examination?
A. Well, it depends upon the polygrapher and the training. But I might add that if the individual is under the influence of those kinds of drugs, heís taking beta blockers, it would affect the entire test, it would not just affect the relevant or control questions, so the results, in fact, should be inconclusive because there would not be any meaningful data collected.
THE COURT: Youíre speaking of beta blockers that are used for blood pressure control?
THE WITNESS: Yes, sir.
Q. (BY MR. BARTH) And you say the results should be inconclusive. But is this where you talk about the subjectiveness of the person conducting the examination of the results?
Q. And, in your expertise, who would be more likely to misinterpret that type of a situation in a polygraph exam?
A. Certainly, somebody who is inexperienced or did not know how to read polygraph charts, somebody concluded because there were no responses the individual must be telling the truth.
I can give you an example of a case that I worked on where the person had told me during the prepolygraph interview that he had not used any drugs or anything to defeat the test, and therefore I had given the polygraph examination, and my conclusion was I could not make a conclusion because there was no substantial data. So I took a urine specimen from the individual and it tested positive for marijuana. The point was that the individual took it to defeat the test and, in fact, I was unable to draw a conclusion from the polygraph regarding whether the person was telling the truth or not. I was able to certainly extrapolate from the fact that he used the marijuana that he was trying to defeat and concluded that the person was lying to me.
Q. Now, you indicated you reached an inconclusive result in that case?
A. Yes, sir.
Q. And is it your belief that someone less experienced than you may have reached another conclusion?
A. Yes, but I also say I believe Iíve been fooled probably by that myself. I think that thereís such a variable in reviewing charts that that can occur to the most experienced polygraph examiner.
Q. Why is that?
A. Thereís a lot of expectation when you review polygraph charts. When an individual responds, you want to see significant and specific and consistent responses, and when itís less than that, you may attribute it to something else. I could be the drugs. The individual, because itís a subjective reading, may determine that the polygraph subject is actually telling the truth. Thatís another variable thatís in place that we somehow canít overcome.
Q. Are there any other factors during the polygraph examination or right before the examination that you would consider relevant?
A. Well, certainly the questions.
Q. Would you go into that a little bit?
A. The questions should not be ambiguous. They shouldnít allow for maximization or the minimization on the part of the examinee. They should be straightforward and focused. They should be rehearsed beforehand, and the examinee should be able to provide during the pretest interview enough information to let you know that he understands what the questions are, what the meaning of the questions are.
Q. And in your experience, Agent Murphy, does a personís educational background or level of sophistication affect their perceptions during these pretest interviews?
A. I think it can have some effect. Again, like many of the other things in polygraph, thereís not enough data, not enough information to conclude that it has a real effect on it.
Q. So when you ask a person about to be examined if they understand your questions and they say yes, does the examiner have to accept that on face value?
A. Yes, I think so.
Q. And how might that translate to the results of a polygraph examination if, in fact, the person being examined did not understand fully the questions?
A. If the individual doesnít understand the question or believes it means something else, it could affect the results. It could reduce reactions or increase reactions. I could inhibit an individualís ability to respond or exaggerate.
Q. Then it gets into the subjective review by the polygraph examiner of those results as to what they mean?
Q. Any other factors that you consider significant?
A. There are a number of factors, but I think weíve covered the areas, other than underneath each of those areas there may be more significant factors.
Q. Now, "Is the rate of error in polygraph within evidentiary standards?" Are you familiar with data concerning or studies that discuss the rate of error in polygraph examination?
A. Iíve seen data, yes.
Q. And what data have you reviewed and what type of results have they reached?
A. It varies, depending upon the study and the methodology of the study, and it can vary from anywhere from 58 percent accuracy to 96 or 98 percent accuracy.
Q. And have you read any of Dr. Raskinís studies as to reliability or Dr. Hontsí?
A. I have.
Q. Are you familiar with the type of an error rate they discuss?
A. I canít do the exact number. I know itísóI canít give you an exact number. I believe itís very high; not the error rate, the validity rate.
Q. You indicated a rate of 58 percent. Where did that come from, sir?
A. It was a review done by the Office of Technology Assessment in 1982 in Washington, D.C.
Q. Is that a federal government agency?
A. Yes, it is.
Q. What type of a review was conducted in 1982 by this agency?
A. It was a comprehensive review of polygraph and how itís used, and also what level of confidence an individual might have in the results, and they found a number of variables. As far as the validity, they cited 30 different studies that they reviewed and pointed out that there was a variance in the validity rate from 58 percent to about 96 or 98 percent. Iíll point out in that study of the 30 specific reviews that they undertook, they noted that only ten of these studies had minimal methodology or acceptable standards in the conduct of those reviews.
Q. In terms of scientific acceptability, is that what youíre referring to?
A. Well, Iíd have to review the study in total, but they specifically made mention of the methodology used by those people who were evaluating polygraph.
Q. They felt that only ten of those studies used acceptable methodology?
A. I believe their term was minimal acceptable methodology.
Q. And what do you mean by the number of 58 percent? What does that mean?
A. Well, theyíre saying that in 58 percent of the cases, by using polygraph you can accurately determine whether or not the individual is truthful or lying.
Q. And what does the question mean, "Is the rate of error within evidentiary standards?" What does that mean to you?
A. To me, it means itís up to the court to determine.
Q. The next factor is, "Has the technique been subjected to peer review and publication?" Do you have an opinion on that, sir?
A. Well, it has been subjected to peer review and studies have been published, but Iíll point out that the peer review is a very, very small community.
Q. And what you do you mean by that?
A. If you look at the studies that you might have access to, you see the same individuals redoing the same kind of studies time and time again. This is their business, their profession.
Q. And would you give us some of those individuals that you believe continuously do these studies?
A. Dr. Raskin does, Dr. Honts, Dr. Barland, Dr. Iocono, Dr. Lykken. I know there are a number of other ones, but the community itself is quite small.
Q. And of the four that you mentioned, how many of those would you label as strong proponents of the reliability of polygraph?
A. At least three of them are strong proponents, but I would also state that they are strong proponents with certain caveats, and those caveats have to deal with the experience and education of the examiner and the conditions under which the test is given.
Q. And do you believe that these people have a vested interest in the results of their studies?
MR. DANIELS: Iím going to have to object to that one, Your Honor. Heís asking whatís in somebody elseís mind.
THE COURT: If you want to try an accommodation, thatís fine.
MR. BARTH: All right, Your Honor. Iíll get to that later. Thank you.
Q. (BY MR. BARTH) What about the publication? What type of publication have you seen thatópublications on the technique?
A. Well, thereís quite a number of publications on the technique. They usually appear in journals such as the Journal of Psychophysiology. Others will appear in the American Polygraph Association Journal, and other individuals will conduct the studies and donít publish.
Q. And are you familiar with an article of polygraph admissibility by Charles Honts and Mary V. Perry?
A. Yes, I read it some time ago.
MR. BARTH: Itís admitted, Your Honor, as Defendantís Exhibit F.
Q. (BY MR. BARTH) And there are certain statements in that article that concern the polygraph. And would you agree, as youíve indicated thatóor would you agree that many of the challenges facing polygraph arise from poor training and a lack of standardization of the polygraph profession?
Q. Thatís a statement by Dr. Honts in this article. Thereís another statement, Iíll get into it a little bit later.
Another factor, "Are there standards as to the techniques operation?" Do you have an opinion on that?
A. Yes. There are some standards, and the standards that are enforceable within the federal community are because of the quality assurances programs that many of the federal agencies have. I know that there are published recommendations an the American Polygraph Association have some standards, but many of them are not enforceable.
Q. Why is that?
A. Well, they just donít have the mechanism to enforce them. Theyíre not aware of every polygraph examination thatís given or the continuing education of individuals or whether or not the person who was trained actually is qualified.
Q. And which organization is this, sir?
A. The American Polygraph Association.
Q. And are you aware of the membership, how large that is?
A. I believe itísóIíd have to guessóabout 2,000, 2,200 members.
Q. Do you belong to that?
A. Yes, I do.
Q. Does the American Polygraph Association have the ability to go out and lift the license or to label a polygrapher as unreliable?
A. Well, they canít lift any licenses, and I supposed they could label somebody unreliable or unethical, but Iím not aware of any instances in which they have demonstrated that as part of their enforcement capability.
Q. So any standards as to the techniqueís operation are sort ofówould you consider them self-enforcing by the polygrapher himself or herself?
A. I consider them capable of being enforced by the particular agency or institution they are serious about giving polygraph examinations in a professional manner and are using it as a discipline and do not use it to the exclusion of other evidence that is found and do not use the results in lieu of independent investigation.
Q. And in the FBI, do you constantly conduct review of the work of the polygraphers that work for you in an attempt to determine that they are applying proper standards that are accepted by the FBI?
A. Yes. Every one of the polygraph examinations that are conducted by the FBI have to come through my office and are reviewed independently by one of my supervisors or myself, and theyíre reviewed in a blind, and theyíre reviewed not only to determine whether or not we concur with their findings, but also to ensure that they used the appropriate formats, techniques, and have abided by the established guidelines and standards.
Q. What do you mean by theyíre reviewed in the blind?
A. When the polygraph case comes in, a blind review in the laboratory means that the person making the review does not look to the results of the individual whoís the contributor, but, in fact, takes the charts, takes the questions independent of the conclusion and draws their own conclusion, and then compares their conclusion with the contributorís conclusion.
Q. But only after they have conducted an independent examination?
A. Yes, sir.
Q. The last factor concerns the degree of acceptance in the relevant scientific community. Dr. Raskin, who testified previously in this case, indicted that the relevant scientific community was the Society for Psychophysiological Research. Would you consider that, in your opinion, a relevant scientific community?
A. Well, I think it probably has members that are relevant tot he polygraph and could make some assessment.
Q. Do you consider the community wider than just member of the Society for Psychophysiological Research?
A. I think itís wider, but itís not clearly established.
Q. What do you mean by that?
A. Individuals who may haveóinvolved with the polygraph are few and really far between. This is not a science in which a lot of people have taken up and evaluated. The community that does these evaluations, do the studies is very, very small. There are independent bodies, and I think that they are part of this community, such as the group from the Office of Technology and Assessment that have conducted research that is relevant.
Q. What about the previous society you referred to, this American Society of Polygraphers?
A. The American Polygraph Association?
Q. Would you consider them a member of the relevant scientific community?
A. Oh, yes.
Q. And are you aware of any studies conducted by them as to the reliability of polygraph?
A. Yes. They conduct on a regular basis and under the auspices of the American Polygraph Association, many individuals will conduct reviews, studies, specifically the Department of Defense Polygraph Institute has an ongoing research team that conducts polygraph research.
Q. And has this organization ever issued an opinion as to whether or not they believe polygraph has reached the level of reliability that it ought to be admissible in court?
THE COURT: Are you talking about reliability or validity?
MR. BARTH: Reliability.
A. Well, they have Ė I know that their position on it is that it should be admitted into court. However, I disagree with that. They have not demonstrated to me and to many of the other individuals within the federal community that itís reached that level. The particular studies and evaluations that are conducted fall far short of demonstrating the science of polygraph. And, again, as I said before, you cannot demonstrate in a mock crime situation or under laboratory conditions what occurs in polygraph testing, plus I will add that they all acknowledge that there is an error rate. What would variance (sic) on it is the size of the error rate.
Q. (BY MR. BARTH) Would you distinguish again for us the difference between reliability and validity?
A. Validity means accuracy, will it detect deception, will you be able to tell from the polygraph test if the individual is truthful or lying. Reliability deals with consistency,; given accepted standards, everyone does it the same way, you will consistently get the same conclusion. These two are very different, validity and reliability
Q. Agent Murphy, have you had opportunity to review Defendantís Exhibit L, which is a survey of members of the Society for Psychophysiological Research?
A. Yes, I have.
Q. And in that study Ė itsí from Ė published in 1993, approximately 136 members of that society responded to a questionnaire concerning polygraph?
A. Yes, sir.
Q. And question Ė referring to page three, counsel Ė the first question in the survey was, "Is it a sufficiently reliable method to be the sole determinate?" And in that, the groups of respondents are broken down, but the people that have the highest information indicated Ė 2.4 percent indicated that it was; is that correct?
A. Thatís correct.
Q. And the second question is, "Is it a useful diagnostic tool when considered with other available information? And of the 130-some respondents, 80.5 percent of the ones with the highest information indicated that it was; is that correct?
A. Yes, sir.
Q. Would you comment on that particular question, "Is it a useful diagnostic tool when considered with other available information?"
A. Yes. I noted when I reviewed that question that the caveat on there, "with other available information," and I agree with that because the other available information could be fingerprints, eyewitness identifications, ballistics, hard scientific evidence, as well as other cases facts. And, yes, I certainly would agree with that, it is a factor involved with all of those. I would use it.
Q. But standing alone, you would not?
A. Standing alone, I would not.
Q. There was some previous testimony also concerning countermeasures. Are you familiar with the use of countermeasures by people who are being given polygraph?
A. Yes, I am.
A. Countermeasure is any attempt by an individual taking a polygraph test to defeat the results, in other words, a person who may be lying wants it to come out truthful. And the countermeasures vary and only depend upon the imagination of the individual taking the polygraph test. They can be anything from moving during the course of the test to not cooperating to taking drugs to practicing self-hypnosis or transcendental meditation, but theyíre specifically designed to defeat the results of the polygraph examination, and we see it all the time.
A. In many of the cases where an individual takes a polygraph test and they attempted to defeat us, they go into maneuver or manipulate the examination results by either moving, whether itís putting a tack in a shoe or tightening the sphincter muscle or practicing some kind of transcendental meditation or taking over-the-counter drugs. There is a publication out, available, which lists, I believe, 12 or 13 ways to defeat the polygraph, and I believe the author is accurate in his description of the things that you can do.
Q. Once again, are we in a situation where it depends on the subjective knowledge, training, and experience of the person reviewing the results?
A. Yes, I do.
Q. And what is that?
MR. DANIELS: Excuse me, Your Honor. Iím going to object to any contents unless thereís some authentication. I saw that for the first time this morning from Mr. Barth. I havenít read it yet. It appears to be an anonymous work by some anonymous person. It contains a lot of things I know are misinformation, and I donít think Ė
THE COURT: Iíll let you cross-examine him on it. Iíll hear it.
A. He bought it in a bookstore in Seattle, Washington.
MR. BARTH: Move for the admission of Governmentís 2, Your Honor.
MR. DANIELS: Note our objection, Your Honor.
MR. BARTH: Would you prefer for Mr. Daniels to voir dire the witness now?
THE COURT: No, thatís fine. Go ahead. In all of these suppression hearing motions, the rules of evidence are relaxed somewhat by reason of Rule 104, and I have taken everything in this hearing in both parts of it in consideration in light of Rule 104.
MR. BARTH: Thank you, Your Honor.
Q. (BY MR. BARTH) Agent Murphy, do you know who the author of this publication is?
Q. And there are techniques discussed in that publication as to ways to deceive or to beat the polygraph examination?
A. Yes, there are a number of countermeasures described here.
Q. Are some of the countermeasures described the ones that you have previously testified to?
THE COURT: How do you know that those countermeasures are effective?
THE WITNESS: Well, because weíve seen them. Again, this is based on empirical data, and on some occasions, after weíve determined an individual has used them, in conversation theyíve admitted or confessed to the crime or they tell us what theyíve done. I can read some of them for you, and I think youíll see that it just depends on the imagination of the individual. Of course, if you have a guide, you can help yourself out.
Q. (BY MR. BARTH) What might some of those be?
A. Heís got 13 listed here. The first one is controlled breathing.
Q. What effect Ė have you seen controlled breathing?
Q. What effect does that have?
A. Well, it reduces the ability for the individual to respond in the respiration because they concentrate on breathing and develop a normal pattern. Now, breathing also will affect your cardio response because it reduces the change in the blood pressure and the blood flow.
Q. And that is something that an experienced polygrapher can pickup from examining the results?
A. And experienced polygrapher should be able to pick that up. I might just go a little further with the controlled breathing. We have been able to establish that a normal individual breathes approximately 13 to 18 cycles a minute. Of course, if the individual is a runner or in good physical condition or very poor condition, that may change. However, when an individual comes in and starts practicing controlled breathing, you may see four, five, or six breaths per minute.
Q. Okay. What are some of the other techniques discussed that you are familiar with?
A. Illegal drugs.
Q. Youíve already talked about that. Next one?
A. Prescription drugs. Availability - there are prescription drugs in almost every household in the United States, I believe. You donít have to be the person the drugs were prescribed for to have access to them.
Bio-feedback is another one. I referred to that before as self-hypnosis or transcendental meditation. Hypnosis, an individual is able to practice self-hypnosis.
There are other ones less sophisticated, a little more crude, such as drinking coffee before the test. If the individual has, I mean, a lot, 30-plus cups, itís certainly going to affect the ability to measure accurately you autonomic nervous system and its responses.
Staying up for several nights before the test, that will reduce the individualís ability to respond on a polygraph test. Theyíve been spent physically, they canít respond. Mental problems, I donít know how you manufacture that, but thatís one of them listed here.
Moving on hot questions, thatís very standard. The individual knows that weíre specifically interested in the relevant questions, when we get to that question, the person will manufacture a response by moving around in the chair, causing to throw the charts off. Theyíre not real responsive, so you canít evaluate them, theyíre not normal responses. We realize they are basically artifacts caused by an intentional move, but it has an effect on the evaluation.
Q. Now, you talked about biofeedback and self-hypnosis, and Dr. Raskin talked about a case in Utah where an individual, he believed, had used Ė successfully used countermeasures in a polygraph examination conducted by him. Are you familiar with that?
A. Iím familiar with a case in Utah in which Dr. Raskin used the directed lie control question.
Q. What case was that?
A. It had to do with Ė I believe they termed it the Mormon letters, regarding forgeries of letters that were presented to members of the Mormon Church. And Iím aware of the case because Dr. Raskin had Ė I was at his seminar that he provided, put on at the University of Utah had brought out the polygraph charts from that case and put them up on a board for all of us to review and to examine and analyze.
Q. And Dr. Raskin, I believe, testified here that he had been fooled by that individual in that case in terms of the results of polygraph; is that correct?
Q. And Dr. Raskin determined that this individual was being truthful?
Q. And did you have a chance to look at those charts?
Q. What result did you Ė what did you see in the charts?
Q. Let me get into the directed lie technique just a minute. Before we do, these countermeasures that youíve discussed, is it your opinion that a well trained, well experienced polygrapher should pick up most of these?
A. Most of them, yes, sir.
Q. Is there anything Ė how foolproof is that in terms of being able to pick these up?
A. Well, itís not foolproof because you do have an error rate, and I know that, and thatís why weíve restricted the use of the results within the FBI.
Q. Which are the countermeasure techniques that are the most difficult to pick up or detect?
A. I cannot say because thereís no Ė we have no data on that, we have no studies. Itís very difficult to determine. Iíd only speculate if I was to choose one of them.
Q. You started to get in a little bit about the directed lie technique. And, briefly, is that a control question technique?
A. Not in its truest form, itís not.
Q. Why is that?
A. The control question technique requires an individual to lie to a particular question that has nothing to do with the matter under investigation. For example, if they issue was whether or not the examinee robbed a bank and I asked him "Before the bank was robbed, have you ever been involved in any thefts?" or, "Have you ever been involved in any criminal activity before the bank was robbed?" youíve separated that question from the robber question.
On the directed lie question technique, the individual is told that the examiner wants him to lie to this question, so he says to him, "I want you to pick out an area. I know youíre going to be lying to it, and I want to see what you look like when you lie on a polygraph test." So heíll say, "Before the bank was robbed, did you ever do anything wrong?" or, "Were you ever involved in any criminal activity? Now, I know you have," the examiner will tell the examinee, "and I know that youíre going to lie to me about it," so, therefore, it takes away the meaningfulness of the lie.
Q. The first type of control question technique you talked about where you would ask the person, "Have you ever been involved in a theft?" is he directed to lie on that question?
A. No, heís not. The idea behind that is that thatís a meaningful control question, itís a meaningful question to the person taking the test.
Q. And the directed lie technique, the person is specifically told by the examiner to lie to the question?
A. Thatís correct.
Q. And within the polygraph community, is the directed lie technique an accepted control question technique?
A. The FBI does not use it. We prohibit any of our agents from using it.
Q. Why is that?
A. Because itís too easy to manipulate.
Q. What do you mean by that?
A. Itís too easy for an examinee to figure out what theyíre supposed to respond and then manufacture a response to that question that will overshadow the relevant question.
Q. Is it your opinion that the control question technique where a person is not directed to lie is more effective than the directed lie technique?
A. Itís more effective because it doesnít allow for countermeasures.
Q. And why is that?
A. In a regular control question technique, the examinee believes that those control questions are meaningful in practice, that they have to pass those as well as the relevant questions. So if a person is telling the truth to the relevant questions, theyíre going to focus on the control questions, and the greater the response will be there.
Q. Is there a difference in the pretest interview between the polygrapher and the person being examined by one that used the standard control question technique and an examiner who uses the directed lie technique?
A. Yes, there is, and thatís in the presentation of those questions to the examinee.
Q. And in the normal control question technique, does the polygrapher advise the person to answer all the questions truthfully?
Q. And in the pretest interview where the redirected lie technique is being used, the person is told by the polygrapher to lie on a specific question?
Q. But in both examinations, both techniques, does the polygrapher tell the person being examined beforehand in the pretest interview what questions are going to be asked?
A. Yes, sir.
Q. And what is the theory behind the control question technique where the person is told to answer truthfully to all the questions?
A. Well, the principle behind that is the individual is advised that they must pass all of the questions; therefore, for an innocent person, innocent of the matter under investigation on which theyíre being tested, they will focus on the control questions because that be where their greatest fear of detection is.
Q. And how does that differ form the directed lie principle?
A. On the directed lie technique, the individual can employ countermeasures, first of all. And, secondly, the directed lie question is less meaningful because theyíve been told to lie, the examiner knows theyíre going to lie to it, and therefore, it reduces the meaning of the question.
THE COURT: Does that mean it reduces the response?
THE WITNESS: Yes, it can reduce the response. It has less impact o a person being tested. Itís not as meaningful.
Q. (BY MR. BARTH) In your opinion, Agent Murphy, is the polygraph and polygraph examinations, is it a science or a discipline or a business?
A. I think it has scientific underpinnings, but I think the actual practitioner is part of the discipline. I think there are individuals out there that use it as a business.
Q. And would you differentiate between a science and a discipline?
A. Well, a science, obviously has data to support it. Itís gone through the process, has the standards, and you can see the acceptance within a community. The discipline uses what it can from whatís available in the scientific community and then uses empirical data and knowledge developed during the course of many, many years of giving polygraph examinations.
Q. And is it your opinion that there is insignificant data out there concerning polygraph as a science?
A. Thereís plenty of data concerning polygraph, but thereís very little data, and almost no data concerning the scientific portion to demonstrate its validity.
Q. And the scientific portion being what?
A. The scientific portion is the psychophysiological aspects of the polygraph. When youíre asked a question, what occurs to the individual? Are the defense mechanisms mobilized through the sympathetic portion of the nervous system? We know that certain things occur, but itís -- you have to extrapolate from those things to make a determination whether or not an individual is lying or not. So thereís a void, thereís a leap from the science portion of it to the end result.
Q. And it is your opinion that much of the data that is out there deals with the end result rather than the scientific portion?
A. I canít make that statement. I know they cover just about every area that they can concerning polygraph and theyíre still not able to overcome the scientific portion of it and make the correlation to a point where itís -- you convinced individuals in the scientific community that the results were valid.
Q. In your opinion, what would be necessary to reach that conclusion?
A. Well, you have to be able to conduct scientific studies based on experiments, real life where you can demonstrate that individuals, in fact, were lying in criminal episodes where, in fact, reports on the polygraph that later on were able to validate it through confessions, through independent evidence, through fingerprints, ballistics, or some other hard science.
Q. So if I understand this correctly, itís your belief that the scientific data that you would be interested in would be not something that was created or a mock thing that is created after the fact in a library, but based on real life experiences that were not recreated for polygraph?
A. Yes. You have to be able to demonstrate it like we do in ballistics or fingerprints where we are able to say that this is his fingerprints to the exclusion of all others.
Q. And how many studies are you aware of that have attempted to put together that type of data?
A. Iím not aware of any studies that can do that because youíre limited in view of the fact that the individuals that are tested, in many cases, never come back to us and tell us later on, "You were right. I did commit the offense." Therefore, we donít have that hard data base. They only way weíre able to validate these tests generally is because of independent investigation or because of confessions at the time of the validation or some other source of information.
Q. And you also indicated that some individuals use polygraph as a business. What do you mean by that?
A. Well, I think individuals makes a living at conducting polygraph examinations in commercial and research areas.
Q. And how do you draw the correlation between people conducting it as a business and then the research?
A. I think the motivation of an individual conducting a polygraph examination has to be reviewed. Within the federal government, weíve eliminated any attempt to enter this into evidence and, therefore, weíve taken the motivation for bias away. Weíve severely restricted the use of the results of the polygraph because of a lack of scientific knowledge concerning it. I think when you step outside of that, all the variables, the lack of scientific acceptability, the lack of data, and we have individuals attempting to enter into evidence or presenting it as something else, then their motivation may be questionable.
MR. BARTH: Thank you. I have nothing further, Your Honor. Pass the witness.
THE COURT: Weíll take a recess at this time, a 15 minute recess.
(Recess, 10:18 a.m. to 10:36 a.m.)
CONTINUE MR. MURPHY'S TESTIMONY
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