THE COURT: Please be seated. You may proceed.

MR. DANIELS: Thank you, Your Honor.

CROSS-EXAMINATION BY MR. DANIELS:

Q. Mr. Murphy, you ended your examination by some critical comments of people who work in the private sector doing research and administration of polygraph examinations. Do you recall that?

A. I recall my statement. Iím not sure I was being critical. I was just describing a matter of fact.

Q. Now, you also make your living as a polygraph examiner, donít you?

A. Well, as an FBI agent, but thatís one of my duties, yes sir.

Q. Your full-time job is to head the polygraph unit, and youíve been doing that for a number of years?

A. Yes, sir.

Q. You make your living form the practical application of the polygraph technique; is that correct, sir?

A. Thatís correct.

Q. You had mentioned earlier that -- by the way, the FBI doesnít provide experts to conduct tests for private citizens, does it?

A. No, we do not.

Q. You donít provide private fingerprint examiners or handwriting analysis for private citizens, do you?

A. As far as the laboratoryís protocl, they have established guidelines on what examinations theyíll take.

Q. Now, as the polygraph unit chief, youíve conducted over 850 polygraph exams of our own?

A. Yes, sir.

Q. And youíve conducted quality assurance reviews of some 10,000?

A. At least 10,000, yes, sir.

Q. And the FBI conducts between 2,500 and 3,000 criminal examinations a year, does it not?

A. Yes.

Q. Now, youíre not a Ph.D. in psychophysiology; is that correct sir?

A. No, sir.

Q. You have taken some courses in psychophysiology at the University of Virginia?

A. Yes, sir.

Q. And you will agree that psychophysiology is the parent science of the modern control question polygraph; is that correct?

A. I believe itís a factor in polygraph testing.

Q. You understand that the hypothesis upon which the polygraph examination is conducted is based on the principles of psychophysiology, do you not?

A. I believe that psychophysiology is part of the underpinnings of polygraph. However, as I said before, thereís a void or a giant distance between extrapolating psychophysiological responses on a polygraph examination and truth or deception.

Q. That takes some scientific method, doesnít it, to go from the underlying scientific hypothesis to the ultimate scientific conclusion?

A. It may take scientific method, but Iím unaware of any scientific method that has been established.

Q. Itís a fact, Mr. Murphy, isnít it, that you have not fully kept up with the field of scientific research in the polygraph; isnít that correct?

A. Well, I have kept up, as far as Iím concerned, to the level that I need to be aware of as it impacts upon my operations and the personnel that I supervise.

Q. But you have not kept up a comprehensive review of the ongoing tests and experiments. If I were to ask you about some of them, quite honestly, we would probably be spinning our wheels on it, would we not?

A. I agree that I cannot cite for you specific studies at this point. I have reviewed many of them. Iíd be more than willing to review them here, take time out and comment on them because I know that I have reviewed many of them.

Q. And you know that there are exhibits that have been in the court record here for several weeks. Have you taken the time to look at those?

A. I have not been presented with them.

Q. If you were presented with them today, would you recognize them enough to talk about them or, again, should we just avoid that as a waste of time?

A. Well, youíd have to present them to me, and I would like to take enough time to review them comprehesively, so I may not be able to do it while sitting here, thatís my point.

Q. Weíd have to take a recess to do that?

A. Yes.

Q. Let me just leave that for the moment, then. You have never conducted a scientific experiment on your own regarding the validity of the scientific hypothesis underlying the control question polygraph technique, have you?

A. Thatís correct.

Q. Now, you had someone at the FBI for a while whoís named Podlesney, P-O-D-L-E-S-N-E-Y?

A. Yes.

Q. And his job was to do some research, was it not?

A. Yes, sir.

Q. And is there a reason why he wasnít brought down here to testify?

A. Heís no longer doing research with the FBI in polygraph.

Q. The research that has been done with the FBI, though, has shown that the modern control question polygraph technique is reliable; isnít that correct?


A. From an empirical basis.

Q. You look at if from an empirical point of view, that is, from experience; is that right?


A. Yes.

Q. Because youíre not a scientist in the field?

A. Because I donít see any data from the scientific community supporting that itís anything other than empirical evaluation.

Q. You have not studied all the laboratory studies that have been done on the polygraph?

A. Thatís correct.

Q. Youíre aware that there are dozens that have been conducted, are you not?

A. Iím aware that there are a significant number of them, yes.

Q. Youíre aware that the Department of Defense Polygraph Institute, which trains federal polygraph examiners, has done studies?

A. Yes, sir.

Q. Are you familiar with Dr. Barland who is the director of training and research at the Department of Defense Polygraph Institute?

A. Yes, I am.

Q. Youíve collaborated with Dr. Barland before?

A. Yes.

Q. You know him to be an eminent researcher in the field?

A. I believe heís very well respected, yes.

Q. Did anyone ask you to review Exhibit D in this case, which is his testimony the government offered in the last Daubert hearing, the Galbreth case?

A. No.

Q. Have you read the various studies that he has conducted on the reliability of the control question polygraph technique?

A. Iíve read some of them.

Q. Not all of them?

A. No, not all of them.

Q. Would you disagree with his scientific conclusion that the polygraph is based on principles of science and methodology?

A. I would not disagree with that, that there are some scientific underpinnings.

Q. Would you disagree with his opinion form his studies that and others that the validity rate of the polygraph in the hands of a competent examiner is higher than 90 percent?

A. I canít disagree with that, but I also cannot support it because I donít know what study he was talking about. But let me also state on that that I am the practitioner, and individual responsible for polygraph examinations within the FBI, and I have seen polygraph examinations and testing situations which would not support that conclusion.

Q. Could you cite this Court to any study which has come to a different conclusion than that reached by Dr. Barland or Dr. Raskin or Dr. Honts or Dr. Horowitz or the others in the field.

A. Iíd refer to the review that was conducted by the Office of Technology Assessment.

Q. You mentioned that earlier. Did you bring a copy of that with you?

A. No, I did not.

Q. Itís published, isnít it?

A. Yes.

Q. In fact, that was in 1982, 14 years ago?

A. Yes.

Q. And didnít that relate to more than just the criminal investigation control question

technique?

A. Yes, it was comprehensive, it was fairly wide ranging.

    1. A lot of what they are looking at in the Office of Technology Assessment report was employment screening; isnít that correct?

A. That was a portion of it.

Q. And didnít they find a high inaccuracy rate in employment screening?

A. I canít give you the exact figures, but I know that they were critical of employee screening.

    1. Isnítí that where the 58 percent figure came from?

A. The 58 percent figure, as published by them included -- I donít believe they differentiated it specifically, but I may be wrong on that. I know that it went from 58 percent up to 92 percent. What they were referring to were the studies that were conducted by -- on 30 different occasions.

    1. They were looking at some exams done by the kind of polygrapher you talked about, the competent and experienced and qualified examiner; is that correct?
    1. Yes.

Q. And some of them, they did studies of people who were of less quality or training or experience; is that correct?

A. Yes.

Q. One of the criticisms of the Office of Technology Assessment report was that, in the hands of an unqualified, unknowledgeable, or inexperienced polygrapher there may be a much higher inaccuracy rate; isnít that correct?

A. Correct.

Q. One of the recommendations is that there ought to be some attention paid to training polygraphers better to do their work; isnít that correct?

A. Thatís correct.

Q. And in 90-some percent figure you mentioned, you mentioned 92 now. A while ago on direct examination you mentioned 96 percent?

A. I said approximately. Iím not -- I knew 58 was on the low end, it was in the mid to high 90ís on the other end.

Q. You said 96 percent on direct and 92 now. Is there --

A. Well, the 90 was available. I believe itís -- probably have some documentation for that around here somewhere, but --

Q. If you have it, Iíd be glad to refer to it --

THE COURT: We have to have one of you speaking at a time. And it seems as if youíre in a hurry. It is an important enough case that we can contemplate the questions and answers, we donít have to interrupt the witness.

MR. DANIELS: I appreciate that, Your Honor. Sometimes I may overdo it. Iíll slow down.

THE COURT: All right.

    1. (BY MR. DANIELS) Mr. Murphy, you have brought up the OTA figures. Are you saying now that you have them somewhere available?

A. I believe I have a reference to them somewhere in my bag.

Q. Do you have the document itself?

A. I donít have it in front of me. I donít have the OTA study here, no, I do not.

Q. Is there something that will refresh your memory from your bag, if youíd like to look at it?

A. I can look at it, see if I can find it.

MR. DANIELS: All right.

    1. Iím sure I have something in here. Itís going to take me a while to look for it.

MR. DANIELS: I can pass over this now and come back to it later during a recess. Iím trying to keep within Mr. Barthís time frame, as I said I would, Your Honor. This is not one of the key areas, Your Honor. If itís going to take up some of our time here, Iíll be glad to move on.

THE COURT: Well, thatís up to you.

MR. DANIELS: Iíll pass on, Your Honor. Itís not one of the key points.

THE COURT: Okay.

    1. (BY MR. DANIELS) You do recall from the report that you have testified about, the OTA report of 1982, that the accuracy rates in the high 90ís were reached in laboratory studies applying the control question technique with the numerical scoring; isnít that correct?
    1. I believe so. Iíd have to review it again to be absolutely certain.
    1. That is the methodology used by the Federal Bureau of Investigation?

A. Yes.

                  1. Q. That is the methodology used by the 400 or so examiners of the federal government?
    1. In most instances, yes.
    1. And in terms of standards, thatís sort of the accepted standard for a specific issue polygraph, is it not?
    1. This is the standard established by the Department of Defense Polygraph Institute and the one that we use now.
    1. Itís essentially the same as is used by private polygraphers using the control question numerical scoring technique where plus six is a pass and a minus six is a fail and in between is inconclusive; is that correct?
    1. Well, I donít know what all the private examiners do, I have not had the opportunity to review very many of the cases, as I said, probably ten a year.
    1. Youíve studies under Dr. Raskin, havenít you?
    1. Well, I attended his class for a week at the University of Utah, yes.
    1. He had the laboratory until he retired last year from the University of Utah?
    1. Yes, sir.
    1. And teaches the control question polygraph technique?
    1. Yes.
    1. And that was one of the things he taught in the class that you attended?
    1. I think he covered that material. I donít think that was main focus of it.
    1. All right. In the OTA figure, some of the studies that were commented on favorable were those of Dr. Raskinís laboratory and several other researchers who reached similar results of accuracy rates exceeding 90 percent; is that correct?
    1. Thatís correct.

Q. It was actually a partial result of the OTA study in 1982 that Congress later outlawed employment screening polygraph.

A. Iíd say that was probably the main reason for it, or at least that was the ammunition used for it.

Q. Now, despite the fact that you come to it from an experience level rather than a scientific vent, you actually believe the polygraph control question technique numerical scoring is a valuable tool in conjunction with other evidence for finding the truth, do you not?

A. Yes.

Q. And your department, your bureau, relies on it in making important decisions about criminal cases?

A. We rely on it to some degree. We consider it a factor.

Q. Along with other evidence?

A. Yes.

Q. Youíve testified in jury trials on various issues before, have you not?

A. Yes.

Q. And you know that the jury is told not to rely soley on any expert, that theyíre to consider all the evidence?

A. Well, I havenít testified as an expert on polygraph -- on the science of the underlying pinnings of the polygraph. What Iíve testified at is in motions hearings regarding polygraph. It was based on motions concerning confessions that were obtained during the course of an examination.

Q. You do understand, though, that no one here is trying to get the polygraph to be the sole determiner of the truth as opposed to witnesses or other exhibits that the Court considers?

A. Well, Iím not so certain about that.

Q. In your own experience, over the years, in tabulating the results of the exams that your 80-some examiners have -- at any given time have administered or that youíve done yourself, youíve done yourself, youíve come to the conclusion that the polygraph is highly reliable, havenít you?

A. In some instances or some settings, yes, absolutely.

Q. In the -- again, using the control questions technique numerical scoring, using those standards methods, there is a very high reliability rate between examiners; isnít that correct?

A. In my agency, with the quality of people conducting the examination and the standards we have in effect and the scoring techniques, I think itís high enough for us to bases some decisions on it regarding investigative matters.

Q. Youíve, in the past, considered it to be in excess of 95 percent, the reliability rate?

A. Within the FBI?

Q. That you have, yes. Thatís what youíve said, itís a 95 -- in excess of 95 percent reliability rate between examiners on reaching the same results, using the same --

A. I donít know what youíre referring to.

Q. Well, do you think that it exceeds 95 percent?

A. I think in some circumstances it can be as high as 99 or 100 percent, and Iím talking about our applicant testing. As far as criminal investigations, I think thereís a variance there.

Q. Do you have a figure lower than 95 percent that youíre willing to testify under oath?

A. As far as us conducting any surveys or reviews, weíre unable to do that because weíre unable to validate each examination through independent investigation, confessions, or other evidence.

Q. Maybe I wasnít making myself clear. Iím trying to use your terminology. Reliability is a correlation between examinersí results; isnít that correct?

A. Yes, consistency.

Q. And when you get a review -- or a test to review on a quality assurance, you will know what the first examiner said ultimately and you will know what the reviewer said. The reliability rate, if we can get to that, exceeds 95 percent in your reviews, doesnít it?

A. Yes, reliability, and I believe I said we reverse about ten percent of the time, so reliability would be about 90 percent. My prior testimony was that we reverse about ten percent of the cases that come in.

Q. Has the Bureau done studies on reliability rating on such things as handwriting analysis and voice prints?

A. Iím sure they have. Iím not aware of any specific --

Q. Youíve never compared the reliability rate of polygraphs to those things?

A. No.

Q. Now letís talk about the validity rate that you were talking about. In your experience, do you believe the validity rate of a properly conducted control question numerical scoring polygraph, when itís in the hands of a competent, experienced examiner, exceeds 90 percent, do you not?

A. No, I do not. I did not testify to that, either.

Q. Well, I want to ask you about that. Youíve written that before, havenít you?

A. Well, Iíve written an article concerning polygraph in 1981. Since that time Iíve had a lot of experience that has made me question some of the things that were initially thought of as part of the polygraph process.

Q. Did you bring that article with you here to show the Court?

A. I believe I brought an article.

MR. DANIELS: This is a fax copy, but I think itís sufficiently clear for the Court.

Q. (BY MR. DANIELS) Let me show you whatís marked as Defendantís Exhibit B for identification. Do you recognize that?

A. Yes, I do.

Q. Could you share with the Court what that is, please?

A. This is an article that I wrote in 1980, June of 1980, for the Law Enforcement Bulletin, which is a magazine published by the FBI for distribution within the law enforcement community.

Q. This was actually published in two different publications or just one?

A. Just one, sir.

Q. The FBI Law Enforcement Bulletin?

A. Yes.

Q. You published that for the benefit of the agents out there who work for the FBI; isnít that correct?

A. Well, anybody who reads it, but itís primarily meant for FBI agents and police officers in the country.

Q. All right. And in this article you talk about an accuracy rate of in excess of 90 percent when the examinations were properly conducted and evaluated?

A. Yes.

MR. DANIELS: All right. Weíll get back to some other areas in that article with the forthcoming subjects. Your Honor, we would go ahead and move Exhibit B into evidence.

MR. BARTH: No objection, Your Honor.

THE COURT: Exhibit B is admitted.

Q. (BY MR. DANIELS) Agent Murphy, have you since that time written any other articles on the polygraph?

A. No, I have not.

Q. You said that you had had some kinds of second thoughts about what you had written back in this article. Have you ever written anything to correct this to agents who might be reading this?

A. No. Weíve had publications come out regarding polygraph. I have not authored any of them, but we have demonstrated the various areas of polygraph which we believe to be of concern to the police community, and they have been published.

Q. Has the FBI even published any articles saying that polygraphs are unreliable?

A. No.

Q. Or that theyíre not valid in their results?

A. No.

Q. In fact, youíve testified on more occasions than just admissibility hearings like this in court, havenít you?

A. Yes.

Q. Youíve testified about the results you reached in administering polygraphs?

A. On a particular case, yes, sir.

Q. Well, you mentioned on in L.A., thatís the one I want to ask about. That was the United States versus Richard Miller?

A. Yes.

Q. Is that the L.A. case you were talking about?

A. Yes.

Q. Thatís where you personally conducted an examination of a fellow, and FBI agent?

A. Yes.

Q. Who was suspected of espionage?

A. Yes.

Q. And you testified in his trial that he had failed his polygraph, didnít you?

A. No, I didnít testify like that. However, that was the message that was sent out by virtue of the questioning that I responded to.

Q. Well, in response to questions, you stated that he had failed the exam, didnít you?

A. No, I donít believe I said it just like that, and there was a reason; I was instructed by the judge at the time how to respond to the questions.

Q. Did you believe that he had failed the exam?

A. Yes.

Q. Did you believe he was lying?

A. Yes.

Q. Was part of the basis for your conclusion the fact that he had failed a polygraph exam you gave to him?

A. Part of it.

Q. Now, I think you said that the FBI also makes important decisions about whether someone can even get a job with the federal government on the basis of 5,000 or so polygraph examinations each year?

A. Yes, sir.

Q. You rely on it a great deal, along with other evidence in your investigations, do you not?

A. No. Itís a factor that we use. We do not use it -- weíre specifically prohibited from using it to the exclusion of any other evidence developed during the course of the investigation.

Q. I may be able to help by making two things very clear. Iím never asking you if itís the sole determinate or the only piece of evidence. I didnít mean to do that. When I talk about a basis, I donít mean the only basis. The second thing is, Iím not asking you if the polygraph is 100 percent accurate or foolproof. And with those two understandings, I think we might be able to proceed. You do use it as a basis for making decisions in your investigations along with other evidence, do you not?

A. To some degree, yes.

Q. Well, take a recent case, the Oklahoma City bombing case. How many polygraphs did the FBI administer in that case?

A. In the range of 45.

Q. Forty-five. In the first days while you were looking for suspects, you cleared a number of people and let them go on the basis of passing polygraphs; isnít that correct, partially on the basis?

A. Well, thatís a leap there to say that we let them go. Individuals who -- that we ordered polygraph examinations identified as potential suspects for the tests, they were determined to be nondeceptive. The investigative focus was ruled out to another area. They were not cleared in the sense that we were no longer going to be looking for them --

Q. The two drifters that you found --

THE COURT: Wait a minute. You guys are jumping back on each other again. Relax, both of you.

A. We have limited resources in these investigations, and sometimes requires us, when weíve developed suspects, to afford them a polygraph examination. Should they be determined to be nondeceptive, or truthful, in other words, not being involved in a crime, then weíre going to move on and focus our investigations in other areas. However, we donít exclude those individuals as potential subjects in the case. Just a preliminary review by use of the polygraph will have us move to another area.

Q. (BY MR. DANIELS) And just a few examples from that, you found two drifters in a motel over there. Before you turned them loose, you made sure they passed polygraph exams, did you not?

A. Yes.

Q. There was another fellow that fit the description of John Doe Number 2, and before you released him, you made sure he passed a polygraph examination; is that correct?

A. Thatís correct.

Q. And then in Exhibit V, your article to your FBI agents, you mention that if somebody passes a polygraph you release them, if they donít, you keep them and continue to interrogate; is that correct?

A. Yes.

Q. Now, you have also relied on polygraph in testifying before the Congress of the United States, have you not?

A. We rely upon polygraphs?

Q. Well, you have reported your results as to whether someone is being truthful or untruthful.

A. Iíve explained the results of specific polygraph tests, yes.

Q. The purpose was to develop a piece of evidence to determine whether someone was being deceptive or nondeceptive; isnít that correct?

A. Thatís true.

Q. You provided expert testimony in an investigation of Senator Herman Townage in 1978?

A. Yes, sir.

Q. Youíve provided testimony to the Moakley, M-O-A-K-L-E-Y, Committee, which was investigating the murder of the six Jesuit priests regarding a number of polygraph tests that you did in that case; isnít that correct?

A. Yes, sir.

Q. You have briefed member of U.S. Senate Intelligence Committee on the results of security breaches caused by a staff member and the results of his polygraph examination, did you not?

A. Yes, sir.

Q. So it is fair to say that day-by-day the 80-some agents of the Federal Bureau of Investigation, including yourself, use polygraph examinations as one of several pieces of evidence in making important decisions?

A. We use it within the context of a complete investigation?

Q. Now, you were saying you were speaking here for the Department of Justice regarding a policy about not allowing it in court. Was this policy produced in response to an inquiry by a court as to what the FBI would advise you to do?

A. That policy is in the U.S. Attorneyís manual, but itís also been an FBI policy, itís a paragraph in the manual which states that no attempt, I believe -- I donít know the exact wording -- should be made to enter into evidence, itís to be used as an investigative tool.

Q. Basically, thatís part of the U.S. Attorneyís manual and the FBI manual to say that the Department wants to oppose letting it into evidence; is that correct?

A. Yes.

Q. Are there any studies cited that relate to its accuracy or reliability?

A. I think the word is supposed to be that itís a lack of studies supporting the validity, and thatís why the policy came about.

Q. Did the authors of that policy actually look at the studies that have been conducted in the last 25 years?

A. I do no know.

Q. All right. Do you know whether there was a committee or a single person who authored that policy?

A. I donít know.

Q. You are, as you said, a board member of a board of senior federal polygraph examiners that are overseeing standards for federal polygraph exams?

A. Yes.

Q. Thereís, you said, 400 federal polygraph examiners working, including the 80 of the FBI?

A. I believe thereís more than 400 federal; but if weíre talking about the federal law enforcement community, my estimation is about 400.

Q. Letís go through the factors that Mr. Barth led you through a while ago about whether the evidence has its basis in scientific principles and methodology. You had indicated that you thought the problem was that there have been only laboratory studies; is that correct?

A. Yes.

Q. Are you familiar with several dozen field studies that have been conducted on the use of the polygraph?

A. Well, I am familiar with some studies post-facto where individuals have -- the researcher has gone back and attempted to resurrect from the case -- or additional information was developed to support the findings, but -- Iím aware of some studies like that. Thereís many, many different studies concerning the polygraph out there.

Q. Are you familiar with the Royal Canadian Mounted Police studies that were conducted by Professor Honts?

A. No, Iím not.

Q. You said on direct examination that one of the things youíd want to see is whether -- if thereís a study that can be conducted where there is some kind of evidence as to whether the person was telling the truth to compare against the polygraph results, and you mentioned a confession, for example.

A. Thatís correct.

Q. Are you aware that Exhibit H in this case is the study conducted by Professor Honts for the Royal Canadian Mounted Police which did precisely that?

A. Iím aware of -- Iím not aware of what Exhibit H is.

Q. Are you aware of that study at all where they used confessions?

A. Iím aware that there are studies, and heís not the only one thatís conducted that kind of study out there concerning confessions that -- correlating with polygraph results. I would point out that the methodology in some of these is questionable, and the number of people using it seems to be very small.

Q. Are you -- the number of people using what is very small?

A. The number of people that they interviewed concerning the results --

Q. Are you talking about the sampling --

THE COURT: Wait a minute. I really want to hear this testimony, and the questions as well, and I canít. Youíre interrupting each other. I donít know who interrupted who that time, but Iím missing it, and it doesnít help anybody for me to miss it. Go ahead.

Q. (BY MR. DANIELS) Are you familiar with the sampling that was used in the RCMP study?

A. Not by number, but I know that the samplings are -- core numbers that they used in these studies are very small.

Q. Name one.

A. Well, I know the study youíre talking about. I canít give you the exact name of it by the formal study, but Iíve seen them before where people in prison have been interviewed concerning their crimes and the polygraph results, and they extrapolated from that on a small number of people that the polygraph was valid in these particular areas.

Q. You are aware that there have been several dozen field studies?

A. Iím aware, yes.

Q. Which of those are you suggesting used an inadequate sampling?

A. Well, I donít have the studies here before me.

Q. Have you ever looked at it to determine which ones used inadequate sampling?

A. I looked at probability at least half of them, Iíd say, and determined that I was not satisfied as a practitioner that there was a sufficient amount of data on which to base these conclusions.

Q. Have your read the literature where people comment on other peopleís studies and provide their reactions?

Q. To a review, yes.

A. Can you cite us to any article which has criticized inadequate sampling on the part of any other scientist or practitioner?

A. I donít have one readily at my fingertips. But, as I said, what I did was review them to determine, regardless of the size of the sampling, maybe have been acceptable within the peer review committee that was insufficient. Iíve had questions concerning methodology on a lot of these studies and experimentationís that have been conducted.

Q. Is it fair to say youíre expressing your personal misgivings about them rather than the opinion of a body of researchers out in the field who have published any such misgivings?

A. Well, yes, they are my personal misgivings.

Q. The scoring, you had mentioned the scoring. One of the -- I believe weíve covered the first three of these here, the first four. You were talking about the scoring system being subjective. Basically, the numerical scoring technique is designed to take out a great deal of the subjectivity from the scoring; isnít that correct?

A. Yes.

Q. And thatís why youíre able to get a 90 percent reliability rate for the exams you review within the department?

A. Well, weíre able to do that because weíve established standards and everybody does it the same way. Thatís how come weíre consistent among ourselves. Thatís reliability.

Q. You can look at some other polygrapherís chart and conduct a scoring based on your system if the control question technique is used; is that correct?

A. Yes.

Q. All right. And if you disagree with their scoring, you can come to court, give an opinion on it any time you review a chart; is that correct?

A. Well, anytime Iím called, yes, sir.

Q. You mentioned something about desensitizing and sensitizing. Are you familiar with the studies that have been done on that friendly polygrapher theory?

A. Iím familiar with peopleís opinions regarding that theory. Iíve read articles that Dr. Raskin has mentioned on it, I think Dr. Honts has put out on it. I donít think thereís any studies concerning it that are valid.

Q. Could we see Exhibit N, D, and F, please? Showing you page 60 of Exhibit N. Ask you to take a look at that.

A. (Witness complies.)

Q. Can you identify for the record what the title of that publication is?

A. Itís the Utah Law Review.

Q. Article by Dr. Raskin?

A. Yes.

Q. Is that one of the publications youíre talking about, or is it something else you had in mind?

A. No, Iíve read this.

Q. And youíre saying you just disagree with Dr. Raskin on that?

A. Well, I donít believe that heís basing this on anything other than his own theory.

Q. You said the two of you disagree as to theory?

A. Yes.

Q. Have you or anybody you know ever conducted any study that shows the friendly polygrapher hypothesis bears out in real practice?

THE COURT: Excuse me for interrupting. What exhibit is that?

MR. DANIELS: Thatís Exhibit N, Your Honor, page 60.

Q. (BY MR. DANIELS) Are you aware of any study, Agent Murphy, that shows that the friendly polygrapher theory is more than a theory?

A. Iím not aware of any study outside of the laboratory or a mock crime situation that can validate this.

Q. That what?

A. That can validate this.

Q. That Dr. Raskinís theories that it is not a factor to be considered and it cannot have impact on the results.

Q. But your theory is that it does have an impact; is that correct?

A. I believe itís a factor. It can have an impact, yes.

Q. Do you think itís likely to have an impact?

A. I believe in certain circumstances, it is likely.

Q. Well, do you have any research data that youíre aware of or that anyone else has developed that ever supported that theory?

A. No, similar to Dr. Raskinís contention.

Q. Now, I think you mentioned that Dr. Barland is the researcher for the agency that trains all the polygraph examiners. Are you familiar with his writings and testimony?

A. Again, I know Iíve read many of his articles. I canít sit here and cite one particular one, but if have something you want me to look at.

Q. Have you ever read Dr. Barlandís conclusions that the research on the friendly polygrapher theory doesnít support it?

A. Iíve heard that. Yes, I believe Iíve read something like that.

Q. Dr. Barland himself works for the government?

A. Yes.

Q. And were you shown Exhibit D in this case before you came here?

A. Youíd have to let me see D.

Q. The bottom of page 365, the bottom of page 336, do you see that?

A. Yes.

Q. And in Exhibit D, Dr. Barland testified the following in answer to this question: "With regard to the friendly polygrapher issue, the research bearing on this hypothesis is that going to a friendly polygrapher is somehow going to skew the results of the test simply does not support it; isnít that correct? "Answer: That is absolutely correct."

A. If you follow on there, they ask him if thatís his opinion, am I correct sir? Weíre talking about his opinion on that. I donít know what his basis for it is, what research heís talking about, but it certainly isnít anything in real life.

Q. If you think Iíve left anything out, please bring it to the attention of the Court.

A. Yes. On page 366, his response is -- the question is , "With regard to the friendly polygrapher issue, the research bearing on this hypothesis is that going to a friendly polygrapher is somehow going to skew the results of the test simply does not support it; isnít that correct?" The answer is, "That is absolutely correct." "You also agree that the polygraph can be a probative value in matters" --

THE COURT: Youíre going so fast I cannot understand you.

A. The question is, "You also agree that the polygraph can be a probative value in matters of intent and knowledge, wouldnít you" He says, "Yes, that is my opinion."

Q. (BY MR. DANIELS) Iím asking about the friendly polygrapher part, about the research, that it doesnít support it. He said itís absolutely correct. Then I went on to ask a separate question on a separate subject, and he said, "Yes, that is my opinion;" isnít that correct?

A. Yes, thatís -- although I would mention, Mr. Daniels, that, in fact, his response to the friendly examiner theory or hypothesis is just that, itís a theory and opinion. Once we get the laboratory studies, the reviews that have been conducted and realize that the methodology may be flawed, that you canít create those situations, what occurs in real life, and it can only be just that, a theory, opinion.

Q. Defendantís Exhibit F, Polygraph Admissibility, Changes and Challenges, but Charles Honts and Mary Perry, now, youíve read that one, havenít you?

A. Yes.

Q. Because you referred to it on your direct examination. On page 371, did you read the part that said, "The first faulty assumption of the friendly polygrapher hypothesis is that fear is necessary for the detection of deception to take place.." Do you recall reading that in the article?

A. Youíd have to show it to me, but if thatís what it says, what youíve read to me, it sounds familiar. Yes, I recall this.

Q. And, basically, that entire section of the article there deals with showing how the friendly polygrapher hypothesis is simply not sound; isnít that correct?

A. Thatís his opinion, again.

Q. And are you aware of any articles using -- that say the friendly polygrapher theory hypothesis is borne out in the control question test?

A. Well, Iím not aware of any outside laboratory studies regarding this.

Q. You mentioned drugs. The fact is that drug use cannot help someone show up honest on a polygraph examination if theyíre telling the truth; isnít that correct?

A. Thatís what I testified to, yes.

Q. The best that someone can do with it is come out inconclusive where the line is just too flat to read; isnít that correct?

A. Thatís my testimony.

Q. So the only way that drugs can hypothetically help in a polygraph is if itís -- if the person is just trying to get an inconclusive instead of a pass or fail?

A. Well, it would affect the reviewer if they were not skilled enough to observe that, and they would make a determination that the person is truthful because they didnít see any response.

Q. But, still, experienced examiners can see it, canít they?

A. Some can.

Q. You mentioned some beta blockers and other things. Have you ever done any studies on whether those can affect control question polygraph techniques?

A. No.

Q. Antihistamines was another one you mentioned. Are there any studies we can look to and examine to determine whether or not that can help beat a control question in a polygraph?

A. Again, weíre not suggesting that thatís going to beat the polygraph in that a truthful person or an innocent person will come out lying or vice versa. Weíre saying that it has an effect on the results because an examiner may review them and not observe anything and therefore make a false conclusion.

Q. You have written in the article, Defendantís Exhibit V, as in Victor, that the drug use can be used to get a false result on a polygraph; is that correct?

A. Yes. If a person is skilled and they accurately score the charts, itís going to be inconclusive.

Q. Have you ever compared the extent to which that can happen, the extent to which someone can fake physical injuries or psychiatric disorders or things like that?

A. No, sir.

Q. Now, Mr. Barth also asked you about peer review, publications, and such. Actually, there have been probably well over 100 publications in the last 25 years dealing with the modern control question polygraphy; isnít that correct?

A. I would agree with you. I donít see any reason to disagree with that.

Q. There are actually a lot more researchers in the field than just four or five, are there not?

A. There are some more, but itís a very small community.

Q. And the community consists of people who are psychophysiologists by profession, in part?

A. Well, they are part of the peer review. However, I would not incorporate them into the polygraph community as far as the peer community.

Q. Letís talk about that. The various publications over the last 25 years have appeared in a wide range of publications; is that right?

A. Theyíve appeared in a number of publications.

Q. There are scientific journals, like the Psychophysiology Journal, to the academics?

A. Yes.

Q. There are loads of articles and police science and administration publications of all kinds, state, local, official, unofficial; isnít that correct?

A. Yes, yes.

Q. Including a number of federal government?

A. Yes.

Q. And there are a lot of people who are writing those articles on the science and the techniques of polygraph; isnít that correct?

A. I think if you look at the authors, youíll see that thereís a small number of people doing al lot of the articles.

Q. Letís take a look at Exhibit C. Take a look at Defendantís Exhibit C. Agent Murphy, thatís previously been admitted as a partial bibliography of publications. If you look through that, there are a whole lot more than five, six, or even ten people who are writing those articles, arenít there?

A. Well, I didnít say it was five or six or ten. I said it was a small community. If you look through here, youíll see the same names keep coming up, three, four, five studies each. But there are more than five and there are more than ten. But let me also state something, these studies that you refer to, although theyíre incorporated under polygraphy, some of them are tangential and they donít deal directly with polygraphy or the truth discipline of polygraph and the conduct of the examinations and the results. They seem to be satellite type of issues that deal with psychophysiology, but they employ polygraph as a means to enter it in and do the article.

Q. They cover a wide range of subjects, donít they?

A. Yes, sir.

Q. You mentioned the American Polygraph Association.

A. Yes.

Q. Thatís an organization of 2,000 members who are engaged in the actual use of polygraph examinations?

A. Yes.

Q. And then there is the Society for Psychophysiological Research which deals with --is the parent science of psychophysiology; is that correct?

A. Yes.

Q. How many members are there in that organization?

A. I donít know.

Q. You had commented earlier on the survey, Exhibit L. That was a survey of member of the Society for Psychophysiological Research. Do you recall that?

A. Yes.

Q. Did you read that entire study?

A. At one time I read the study. Just recently I refreshed my memory on that particular table that is contained in there regarding the survey that was done.

Q. And this is the scientific organization for psychophysiologists?

A. Yes.

Q. And I believe you said on direct examination that that study showed 80 percent of the members of that organization classified themselves as knowledgeable about polygraphs, thought that polygraphs would be helpful in conjunction with other evidence; is that correct?

A. Iíd have to look at it, but I believe the focus of my testimony then was to state although these are the figures that are provided, they can be somewhat misleading.

Q. Iím going to ask you specifically about the part you testified about on direct examination which supports the validity of the polygraph along with other evidence to be considered. Do you find that in there?

A. Yes.

Q. Is there a different way you prefer to characterize it?

A. Well, I think we need to explain it. My understanding is that there are far more members, a lot more members that were not surveyed and therefore, by pulling out just the 136 or so and then from them extrapolating a statistical analysis, it somewhat skews the statement that this entire society was surveyed.

Q. Maybe I misunderstood your testimony on direct examination. You didnít talk about that part on direct examination, did you?

A. No. What I talked about on direct examination was that 80 percent of the people thought it could be useful, but only if used in conjunction with other evidence. Is that what weíre talking about?

A. Yes, but having reviewed this --

Q. Just no, you mean?

A. No, remembering if from before. I remember reading this and, again, thinking to myself that this is statistical compilation that is probably somewhat misleading. Itís accurate in the sense that thatís the number of people who responded and thatís the percentage that responded that way. But it has the appearance, unless you carefully review this, that all the members of the society felt that way, and thatís just simply not true.

Q. Are you familiar with any studies that show the polygraph does not have substantial acceptance among members of the Society for Psychophysiological Research?

A. No, Iím not aware of any studies.

Q. Are you familiar with any critique of this published poll, any written critique.

A. Other than my own opinion, no.

Q. Are you familiar with the 1982 -- 1984 Gallup poll?

A. Youíd have to be a little more specific.

Q. Well, youíve read this exhibit. Do you see the reference in there to the 1984 Gallup Poll where the same society was polled?

A. Iíd have to find it in here, review it to refresh my memory. If you want to point it out to me?

Q. First page. Do you see the reference to the Gallup poll on the first page?

A. Yes, I do.

Q. Do you have a problem with the methodology of the Gallup poll?

A. Well, I think what theyíre saying is that the opinions have not changed since Gallupís survey was conducted. Iíd like to see what the survey said, what the questions were.

Q. Have you seen any published criticism of the methodology of the Gallup poll that was done over a decade ago?

A. No, I have not.

Q. All right. And when you read this, did you go look to the Gallup poll to see if you had any problems with this methodology?

A. No, I did not.

Q. And, essentially, as the report states, they state the results of this poll essentially confirm the results of the Gallup poll a decade before; is that correct?

A. The statement is, "Results suggested that opinions have not changed since Gallupís survey was conducted in 1982." It says, "A majority of respondents to both surveys reported that the polygraph is a useful diagnostic tool when considered with other available information." I donít have any problem with that. I agree with that.

Q. All right. Letís turn to the subject of countermeasures you brought up. You said you see attempted countermeasures all the time in your exams?

A. Not all the time, but certainly on a regular basis.

Q. And you often can tell just by looking at the charts that somebody has been making some crude effort at countermeasures?

A. Crude effort is a good description. I think you can observe that, yes.

Q. And experienced examiners are used to looking to see whether a particular exam involved countermeasures; isnít that correct?

A. They should be, yes.

Q. And the fact is that itís very difficult to effectively use countermeasures to get a false result on a polygraph exam; isnít that correct?

A. They should be, yes.

Q. And the fact is that itís very difficult to effectively use countermeasures to get a false result on a polygraph; isnít that correct?

A. With the exception of the directed lie in a control test, directed lie test, I think that you generally have an examination that is skewed in the fact that the data cannot be read.

Q. All right. Weíll get to the directed lie in a minute. So other than that, your testimony is that it is difficult to beat a test to the extent of giving the opposite result instead of an inconclusive by using countermeasures; is that not correct?

A. I hesitate to say that itís not impossible, and certainly, it may be somewhat difficult, but if itís done, weíre not going to be aware of it because, as I said, one of the variables in having problems with polygraph is you cannot validate results many times. We can suspect it, we can speculate, but we canít validate it.

Q. Again, do you know how that compares to faking physical or mental, psychiatric exams, handwriting, those other kinds of evidence?

A. Iím not sure of the question.

Q. Do you have any basis for comparing whether itís as successful, less successful, more successful than the ability to fake handwriting, physical exams, mental or psychiatric exams, other kinds of evidence?

A. I have no comparison studies.

Q. All right. Now, you had mentioned the directed lie. Letís talk about the directed lie. Are you familiar with the research that has been done in the directed lie technique?

A. I have read some of the material thatís been presented regarding it.

Q. Could you tell us which researchers youíve read?

A. Well, Iíve read some articles written by Dr. Raskin, articles. Iíve also read information thatís been published by the Department of Defense Polygraph Institute. Iíve also had practical experience, and I base a lot of that on actual cases that weíve been involved with.

Q. Letís talk about the Department of Defense Polygraph Institute. You do know they have conducted research into the directed lie form of the control question, do you not?

A. Yes, sir.

Q. And you a are aware that their research has shown to date that the directed lie is at least as effective a control question as the probable lie.

A. Well, again, the research theyíve conducted in the laboratory, mock crime-type situations which cannot duplicate what occurs in real life.

Q. Let me show you page 364 of Exhibit B, and Iíll re-ask that same question.

A. (Witness complies.)

MR. DANIELS: In fact, because of my fading memory, Iíll probably reformulate the question, Your Honor.

Q. (BY MR. DANIELS) Isnít it true that Dr. Barland and the Department of Defense Polygraph Institute have concluded that the directed lie technique is an effective control question?

A. Thatís his testimony, yes.

Q. And, in fact, his testimony specifically was, "The research that Iím aware of, both by others and by the Institute, have shown that the directed lie control question test is at least as accurate as the conventional probable lie control question test."

A. Well, thatís his testimony, but I take exception to that. I donít know what figures heís talking about. Secondly, as Iíve testified to before, this is in mock crime situations.

Q. How do you know that?

A. Because I know that they donít conduct any real life testing situations because itís prohibited by the very nature of polygraph, wherein you take individuals who are suspected of crimes, make them take a polygraph examination, afterwards were able to validate every one of the tests by independent means. I also know that the polygraph school does expose their students to that, but they do not recommend that as a testing technique.

Q. Are you familiar with the study of Dr. Honts on the directed lie?

A. No, Iím not.

Q. Okay. How about E, please? You said, Agent Murphy, that it was your belief that the only tests that have been done have been laboratory tests supporting the directed lie control question?

A. Thatís all Iím aware of, yes, sir.

Q. All right. Are you aware of the field studies that are described in "A Field Study of the Validity of the Directed Lie Control Question," authored by Charles R. Honts and David C. Raskin published in Journal of Police Science and Administration eight years ago?

A. Not by title. I may have to look at it and refresh my memory.

Q. Iím showing you now what has been admitted as Exhibit E in this hearing. If youíre not aware of any field tests on the directed lie control question, is it fair to say then that you never read Exhibit E before?

A. Letís distinguish between field tests and actual hard scientific experiments, which is what Iím referring to. Iíd have to review this to determine if thereís any correlation between the two.

Q. Have you ever read Exhibit E before?

A. No, I have not seen it.

Q. Do you know if there are others out there that report field studies on the directed lie question that you havenít read. Are you aware of any through hearsay or anything else?

A. Do you mean, have I heard of anything I havenít read?

Q. Yeah.

A. Iím sure thereís something I havenít read, but I donít know of anything specific thatís going to validate this.

Q. You then have not examined the particular methodology thatís described in Exhibit E?

A. No, I have not.

Q. In fact, as I understand it, your response in response to Judge Hansenís question about a directed lie problem, you said that the control question may get a lesser response than the probable lie; is that correct?

A. No, I donít believe thatís -- youíd have to refer to the exact question.

Q. Well, your concern was that if the person knows itís a lie and knows the examiner knows itís a lie, he may not have as a big a reaction to that as when he believes heís lying behind the examinerís back. Am I making myself clear?

A. Yes. I said that as well as -- I agree with that, as well as it also allows for countermeasures.

Q. That works against the innocent person, doesnít it? The control question response is lowered, is it not?

A. It works against -- youíre going to have to explain that a little bit more.

Q. The scoring technique is to compare your response to the control question with the response to the relevant question, the specific issue under investigation; isnít that right?

A. Yes, sir.

Q. And if the innocent person taking the test, according to your theory, would have a lesser response to the control question, that actually would hurt him, the comparison, wouldnít it?

A. Yes, the irrelevant question would appear to be higher scored.

Q. And in fact, one of the criticisms that you have of the laboratory studies is that there is not as much at stake, in your mind, to the participant as in real life; isnít that correct?

A. Iíd say itís difficult to simulate the experience of being a criminal suspect with being a college student whoís undergoing a mock crime experiment.

Q. And I that mock crime experiment, a typical example is where someone will give you $10.00 if they can beat the test?

A. Yes.

Q. And your concern is that the $10.00 incentive may not be the same as where a real person is accused of something that may land them in jail for years?

A. I think the incentive is quite different for both individuals in those cases.

Q. In fact, that also works again innocent people in real life, doesnít it, if your theory is correct?

A. Iím sorry, Iím missing that.

Q. That person who has only $10.00 at stake in the laboratory test rather than ten years in prison, for example, your concern is that it doensnít duplicate the real life pressure that the irrelevant question imposes on the subject; isnít that correct?

A. If I follow you, yes.

Q. And so itís tougher for an innocent person, if your theory is correct, to prevail in the real life criminal issue test; isnít that correct?

A. No, thatís not correct.

Q. Let me just ask you if you agree with these particular statements. Do you agree that the polygraph is a highly sophisticated, scientifically based technique?

A. I believe thereís scientific underpinnings to it, that it is sophisticated in its application in the right framework.

Q. Do you still have Exhibit V before you?

A. No.

Q. Do you remember those words? Thatís what you wrote in your article.

A. Yes. I believe it deserves explanation in the present setting.

Q. Do you agree with the statement that the polygraph is a scientific diagnostic instrument used to measure the physiological response of an examinee under controlled conditions?

A. Yes, but I will also explain that weíre talking about a scientific diagnostic instrument, and then weíre moving on to measure responses under controlled conditions.

Q. Do you agree with the statement that misunderstandings have led some to believe that hardened criminals, sociopaths, psychopathic liars, et cetera, can beat the polygraph because of their background or deviant personality?

A. Yes.

Q. But you agree with your writings in the article that thatís just not so?

A. No, no. Thatís what I wrote.

Q. You wrote that it is fear of detection that causes the physiological change as the polygraph instrument records and the examiner interprets?

A. Yes.

Q. And in the article you go through the whole process for conducting a proper polygraph, which involves study case materials, a thorough pretest interview, proper formulation of questions, review of all the questions with the examinee so the examinee knows exactly whatís being asked, going through several charts, and then conducting a numerical scoring by comparing the relevance with the control; is that correct?

A. Yes.

Q. And this is the method that you use today at the FBI?

A. Yes, sir.

Q. And at the conclusion of a comparison of the controls and the relevant reactions, is it true that, quote, A well trained polygraph examiner is then able to conclude whether deception is indicated, close quotes?

A. Yes.

Q. And you have never suggested that the polygraph is 100 percent accurate, foolproof, have you?

A. No, I have not.

Q. Have you known any scientist in the field to make that kind of claim?

A. Well, Iíve known some who have come darned close to it in their opinions.

Q. All right. Do you agree with the statement that there have been a number of studies that give noteworthy recognition to the validity and reliability of the polygraph?

A. Yes.

Q. And that some studies have concluded the polygraph to be 99 percent accurate with an almost matching reliability rate?

A. Yes, at the time -- let me just explain that. At the time, I wrote that article in June of Ď80, in the OTA study, people were more quick to examine methodology and experiments, reviewed polygraph testing under the circumstances weíve described before and then reduced the number to 58 percent, and the 98 percent they also mentioned in there, but they also attacked -- and attack is my word -- the methodology.

Q. Youíre not endorsing the 99 percent figure?

A. Well, in criminal tests, no.

Q. Do you think it gets that level in some kinds of tests?

A. I think in applicant testings for the FBI and other services that use it, I think itís as high as 99 percent, 100 percent.

Q. In fact, you believe that your -- that the real life criminal investigation test will have higher reliability and validity than the laboratory tests, donít you.

A. Iím saying that thereís probably no way to compare the two because of inability to compare real life testing results.

Q. You mention in your article that, "Itís generally believed that laboratory testing using the polygraph research tends to affect adversely the otherwise higher validity and reliability rates. Under laboratory conditions it is difficult to simulate the stress that occurs under actual conditions." You still stand by that?

A. Yes.

Q. And let me just conclude by asking if you agree still with this statement: "The polygraph technique, when properly used by competent, well trained examiners, possesses a high degree of accuracy, adding a new dissension to an agencyís enforcement capabilities. If readily available to its investigators, the uses of the polygraph are flexible and variable. Besides identifying guilt, it can eliminate suspects, verify witnessesí statements, corroborate informant information, and determine the veracity of a complainantís statement. The polygraph, when used judiciously, can be instrumental in reducing costs and saving man-hours. It can also dramatically increase the conviction rate due to the high occurrence of confessions made by suspects who had been less than candid prior to the polygraph examinations." Do you still stand by that?

A. I stand by that, and there are some words in there Iíve emphasized, the judicious use of it, and at the beginning there are some other words describing how to apply it.

MR. DANIELS: thatís all I have, Your Honor.

THE COURT: Mr. Barth.

MR. BARTH: Thank you, Your Honor.

REDIRECT EXAMINATION BY MR. BARTH:

Q. Agent Murphy, the 1980 article that you wrote, would you draw a distinction between an agencyís enforcement capability and the use of that evidence in terms of being admissible in a court proceeding?

A. Of course, I think the article, the intention of the article, with everything that I put in there was to describe to law enforcement agents, FBI agents, anybody else who reviewed the bulletin, that this is an investigative technique that they can have some degree of confidence in. It was really a primer to describe the process of the polygraph, how it works and what they should be aware of and how they should apply it.

Q. Was it your intent in that article to advocate the admissibility of polygraph evidence?

A. No, not at all.

Q. Agent Murphy, Mr. Daniels asked you specifically, Defendantís Exhibit E, "A field study of the validity of the directed lie control question," and in that test it involved subjects where -- 25 criminal suspects in the field study. Would you consider that a sufficient number for a study of the validity of the directed lie control question?

A. Well, Iíd really have to look at the methodology and analyze the entire article before I could comment on it, but weíre talking about sampling or core numbers, again, Iíd have to see how it fit into a larger focus, larger experiment.

Q. Okay. And also the field study of the Canadian Police College polygraph technique, Defendantís Exhibit H, involved -- if you were told that in the first wave of data collection, there were 23 case files containing 29 polygraph examinations, and in the second wave of data collection, there were 12 additional cases, and that the -- thatís what this study was based on, with an overall data of 200 subjects, would that be -- would you consider an adequate number to use?

A. Personally, my own feeling on it, it would not be an adequate sample.

Q. Now, this article that you wrote in 1980, I believe you indicated that your views, based on your experience since then, have changed or may have changed. Could you elaborate on that?

A. Well, theyíve changed in the sense that, obviously, we still use it, and I think weíre very effective and efficient in its use. But weíre continually on guard regarding its misuse and the ability for people to misuse it against us, the ability of people to employ countermeasures. Since Ď78 when I became a polygraph examiner until the present, I still have not seen definitive studies, and I call it hard science or hard studies that can deliver the competence rate on the validity of the polygraph instrument.

Q. Agent Murphy, you indicated in questions from Mr. Daniels that you had previously testified in congressional hearings concerning some polygraph exams you had conducted.

A. Yes.

Q. And was the thrust of your testimony that these people were guilty just because of the results of your polygraph test?

A. No. I provided information regarding -- information and evidence that we obtained from interviews during the course of the polygraph examinations. I also did provide my opinion regarding the results.

Q. Mr. Daniels asked you about the Miller case, which is the FBI agent accused, in fact, ultimately convicted of espionage in California?

A. Yes.

Q. You didnít actually testify or state an opinion in that case, did you, as to his -- as to -- based on -- state an opinion based on your polygraph examination?

A. No, I did not.

Q. And it was kind of an unusual procedure. Would you explain briefly to the Court what happened in that case?

A. I was with Mr. Miller for approximately two days, and during the course of the two days when the two of us were alone in the room, he provided me information that I was able to use in court. The defense challenged my being alone with him in the courtroom and made the appearance or was going to suggest to the jury that something else happened while we were in the room together. The judge allowed the government to raise the issue of what --exactly what was going on in the interview, and I was directed by the court that I could respond to questions concerning what I told Mr. Miller and what he said. Specifically, I was allowed to tell in front of the jury, I spoke to Mr. Miller and explained to him that he failed the question concerning providing classified material to a woman by the name of Svetlana Orogodnikova. And in response to that --

Q. Excuse me. Is that common spelling on that name?

A. And in response to that, he admitted that he did provide her classified information. I was also allowed to tell the jury that I told Mr. Miller that he failed the question when he said he did not receive anything of value from the Soviets. He then responded by telling me that he did receive things of value. So I was able to demonstrate what I was doing in the room with the jury. I did not give an opinion on polygraph, but, obviously, they were able to assume what the results were.

Q. So the purpose of your testimony was not to get in the results of the polygraph, but to describe what went on in the setting when you were together with the defendant?

A. The purpose was to defend my actions while in the room.

Q. And the Ninth Circuit Court of Appeals reversed the conviction in that case based on the evidence coming in that way?

A. Yes.

Q. Now, you testified on cross-examination that you consider the polygraph highly reliable in some settings?

A. Yes.

Q. And those settings that are controlled for a very limited purpose?

A. Yes.

Q. And like what?

A. Well, like applicant polygraph testing.

Q. Would you agree with the statement that polygraph machines measure physiological reactions, not truth telling?

A. Yes.

Q. Is it true that the truth telling is -- whether or not a person is telling the truth or not is based on the subjective interpretation of the results by the polygraph examiner?

A. Yes, thereís a degree of subjectivity in the analysis.

Q. And that can vary from polygraph examiner to polygraph examiner, based on training and experience?

A. Well, based on training and experience, but also the hopes that a standard has been set for the examiner, and that should reduce the variability there.

Q. Would you agree with the statement that polygraph registers physiological correlates of anxiety which is not quite the same thing as consciousness of guilt or lying?

A. Yes.

Q. Would you also agree with the statement that questions asked in a polygraph examination can provoke inner turmoil even when they are answered truthfully?

A. Again, thatís another area that we donít have enough data, scientific research on to demonstrate it.

Q. We talked about -- Mr. Daniels asked you -- make sure I understand your testimony. Itís your testimony that the polygraph machine itself is a scientific instrument?

A. Itís a scientific diagnostic instrument. By that I mean it measures certain physiological responses.

Q. And then so thereís an instrument -- thereís a measure of physiological responses, and then thereís an interpretation by the examiner of these results?

A. Yes.

MR. BARTH: Nothing further, Your Honor.

 

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