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1 Institute has purchased a number of those over the years
2 plus had us build and design special systems for them.
3 The CIA has been using them. There are law
4 enforcement agencies outside the federal government in
5 different parts of the country that have them. The
6 Canadian Police College has been using them in training
7 people for several years now. They have been purchased
8 by other governments in other countries around the
9 world. And they are using them as well as private
10 examiners and individual law enforcement examiners
11 around the United States and Canada.
12 THE COURT: I have another matter that I have
13 to take up in chambers. We will be in recess.
14 (WHEREUPON, lunch recess taken.)
15 BY MR. DANIELS:
16 Q Dr. Raskin, before we broke for lunch we were
17 finishing up on the field studies as opposed to the
18 laboratory experiments on the control question polygraph
19 technique. You had mentioned one study or series of
20 studies involving confessions where you compared
21 polygraph outcomes from confessions where the suspects
22 admitted their guilt, and I believe we were finished
23 with that. Were there other field studies types of
24 field studies that had been done over the years, also?
25 A Yes. In terms of finished, I'm not sure if
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1 you mean did we also talk about the results of those
2 studies or
3 Q How did the results of those studies
4 correlate with your laboratory experiments under
5 controlled conditions?
6 A Generally, quite high accuracy. The study we
7 did with the U.S. Secret Service like that the average
8 accuracy was approximately 94 to 95 percent.
9 Q How does that correlate with the results you
10 had in the laboratory?
11 A It's similar. And then the study done in
12 Canada by Iacono and Patrick showed the original
13 examiners to be 100 percent correct on the guilty
14 subjects and 90 percent correct on the innocent
15 subjects. And a recent study done by Dr. Honts up in
16 Canada showed similar types of results. So in general
17 those studies had produced data pretty consistent with
18 the better quality laboratory studies.
19 Q Were the Canadian studies done for private
20 clients or for police authorities out there?
21 A Those were all law enforcement agencies.
22 Q What other kinds of field studies have been
23 conducted?
24 THE COURT: Excuse me. I want to make sure
25 I've got the correct results of the Canadian study. Dr.
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1 Raskin, what was that?
2 THE WITNESS: Well, I think Dr. Honts might
3 be able to answer more specifically the exact numbers.
4 I don't have the report with me. There were two
5 Canadian studies so one I am quite familiar with which
6 is the study done by Iacono and Patrick and that one
7 used cases from the RCMP, the Royal Canadian Mounted
8 Police. That was the one where the original examiners
9 were correct 100 percent on the later verified guilty
10 subjects and 90 percent on the later verified innocent
11 subjects.
12 Again, that is consistent with the notion
13 that when there are errors, there are more likely to be
14 errors of an innocent person failing the test rather
15 than a guilty person beating the test. And the other
16 study by Dr. Honts produced results I think fairly
17 similar but I don't have the numbers in my head.
18 BY MR. DANIELS:
19 Q Is that the one that he published in Field
20 Validity Study of the Canadian Police College Polygraph
21 Technique?
22 A Yes.
23 MR. DANIELS: That is Exhibit H on our list
24 and we'll have Dr. Honts testify directly about that,
25 Your Honor.
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1 THE COURT: Thank you.
2 BY MR. DANIELS:
3 Q Without recalling the exact numbers, were his
4 results consistent with what you had observed in other
5 field studies and the laboratory studies?
6 A Yes.
7 Q In talking about accuracy in the 90 percent
8 range?
9 A 90 percent plus is the general range.
10 Q With regard to other kinds of field studies,
11 what other kinds have been done?
12 A Another type of field study in which there
13 are two wellknown examples have to do with what are
14 called panel studies. And in these studies rather than
15 using a criterion of confession or physical evidence
16 what they use there is have a panel of experts review
17 the file without the polygraph results in them.
18 Q What kind of experts?
19 A Well, one was done by Phillip Bersh and
20 published in 1969. And those experts as I recall were
21 from the Judge Advocate General's Office in I can't
22 remember which service now, but I think it was Army
23 perhaps. And they were trial attorneys basically as I
24 recall and they looked at the files and they made an
25 independent judgment as to whether or not the evidence
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1 that was in the file was consistent with guilt or
2 innocence. And then the polygraph result was compared
3 to that.
4 And as I recall in that study the overall
5 accuracy was something like 92 percent agreement. And
6 the other panel study is the one done by Dr. Barland for
7 his doctoral dissertation which I supervised. And there
8 at the panel was five experts: two prosecuting
9 attorneys, two defense attorneys and a judge. And when
10 three or more of the panel members agreed on a decision,
11 then that was considered to be the panel finding and
12 that was compared to the polygraph result. As I recall
13 it was almost perfect accuracy or agreement that is
14 between the panel and the deceptive results, but there
15 was a fairly sizable proportion of disagreement on the
16 ones that were I'm sorry. I misstated that.
17 The panel on the ones where the panel said
18 the person was deceptive, the polygraph agreed
19 consistently with that. But on the ones where the panel
20 said the person might be truthful, some of those people
21 had failed the polygraph tests. So again if you take
22 the panel as the criterion, there was a much higher rate
23 of false positive errors again than false negatives.
24 Meaning that it was easier to detect deception than to
25 verify the truthfulness.
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1 Q When they looked at these files, was there
2 any category of evidence that was excluded? Say
3 constitutionally illegally obtained evidence or anything
4 like that?
5 A No.
6 Q The five saw it all?
7 A Whatever was in the file except for the
8 polygraph result they were given. Now, the problem with
9 the panel studies is that's not a very good criterion
10 for determining whether the person really was innocent
11 or guilty. It's a human judgment based upon experience
12 and the totality of evidence. It's not nearly as strong
13 as the confession and strong physical evidence. So
14 those studies are somewhat questionable in terms of how
15 useful they are, although they tend to be consistent
16 with the other results.
17 Q Is that something scientists in your field
18 might take into account but not rely exclusively on?
19 A Yeah, I would say in terms of taking them
20 into account they would probably place less weight on
21 them than they would on the confession and the hard
22 evidence studies and the wellconducted laboratory
23 studies. And then there is another category similar to
24 that which uses judicial outcomes.
25 And again in Dr. Barland's dissertation
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1 judicial outcomes were used and compared to the
2 polygraph results producing as I recall somewhat similar
3 pattern of results. But that's an even weaker criterion
4 because a judicial outcome has to take account of
5 admissibility of certain kinds of evidence as well as
6 legal considerations that may not be a direct result of
7 whether or not the person did or didn't do what they are
8 accused of.
9 Q Inspite of that there is still a general
10 correlation between the judicial outcomes and the
11 polygraph outcomes?
12 A Yes, as I recall it was a pretty good
13 correlation.
14 Q Are there other kinds of field studies that
15 have been looked at to provide yet other checks and
16 balances on this or have we covered them all?
17 A Those are the major ones.
18 Q Let me ask this question, there has been some
19 suggestion by some that psychopaths, for example, can
20 beat a polygraph test. Have there been studies with
21 actual psychopaths to see whether that is so or not so?
22 A Yes, there have been.
23 Q Could you tell us about that.
24 A The first study doing that with the control
25 question technique was a study that I conducted where I
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1 actually ran all the subjects myself in a prison in
2 British Columbia on a grant from LEAA.
3 Q That's the United States Law Enforcement
4 Assistance Administration?
5 A Yes, which was part of the Department of
6 Justice until it was disbanded and incorporated into
7 other parts of it. In that study I had 48 subjects all
8 of whom were incarcerated felons, half of whom had been
9 fully clinically diagnosed as psychopaths or sociopaths
10 by Professor Robert Hare, who is the world's authority
11 on psychopaths. And I was able to use his population of
12 subjects in his laboratory at a prison in British
13 Columbia. And I conducted a mock crime study with these
14 convicted felons. And it was theft of some money. It
15 was a very realistic situation. And not a single one of
16 the psychopathic or nonpsychopathic convicted felons was
17 able to beat the test.
18 All of them were correctly identified except
19 for a couple of inconclusives as I recall. And 2 of the
20 24 innocent subjects, one of whom was a psychopath,
21 failed the test even though they were innocent of the
22 mock crime. So it showed very clearly that psychopaths
23 cannot beat a properly conducted test. Since that time
24 Professor Iacono repeated that study with some
25 variations and found a similar pattern although his
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1 accuracy wasn't quite as high and found considerably
2 more false positive errors in that sample.
3 Q Again, innocent people being inaccurately
4 judged as deceptive?
5 A That's correct. But he concluded that the
6 polygraph technique is at least as effective with
7 psychopaths as with other individuals. And there are
8 some other studies in the literature. Those I think are
9 the two best studies. Dr. Barland and I did a study
10 that I think was presented about 1975 where we had cases
11 drawn from his actual field tests where we used a MMPI
12 scale, two scales, of course, for diagnosing psychopaths
13 using the MMPI. And all of the persons diagnosed
14 psychopathic as I recall failed the field test, the
15 actual real test. And so it did show that they couldn't
16 beat the test.
17 It is not clear whether all of them were
18 guilty or innocent but nobody was able to beat the test.
19 So that's consistent in a field setting with that. In
20 general the literature is very clear. I don't think
21 anybody who knows this literature disputes the result
22 that psychopaths are as readily detected as anybody
23 else.
24 Q How about the use of medications,
25 tranquilizers, legal drugs, medications, illegal
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1 medications and so on, what effect did they have on the
2 ability for someone to skew the results of the test?
3 A They basically have no negative effect on the
4 usefulness of the test.
5 Q Can you explain why that is?
6 A Well, with a control question type test the
7 issue is did the person react more to the relevance or
8 more to the comparison or control questions. In order
9 to make a decision there has to be differential
10 reactivity. If a person takes a drug that lowers their
11 reactivity, it doesn't do it selectively. Therefore,
12 there is no drug that can reduce the reaction to
13 relevant questions and leave the comparison or control
14 questions uneffected.
15 It is a bodily change. And therefore you
16 wouldn't expect the drug to be able to do anything but
17 make the result inconclusive by them becoming relatively
18 unreactive altogether. But the results show that use of
19 drugs both for the control question test and for the
20 concealed information or guilty knowledge test that
21 drugs do not interfere with the ability of the test to
22 detect deception.
23 Q What do you as a professional polygrapher
24 advise people about the use of drugs or other
25 medications?
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1 A Well, of course, I only advise them with
2 regard to legitimate drugs because I wouldn't suggest to
3 them that they are doing something illegal, but I always
4 tell people, "If you're taking any medication, then you
5 should continue to take whatever medication you normally
6 take." Because it would be first of all not good for
7 them to discontinue medication prescribed by a
8 physician.
9 Their physician is the only person to give
10 that advice and secondly I wouldn't want them in an
11 abnormal state when they come to the polygraph because
12 that would make it more difficult for them in that
13 situation. It wouldn't be in their more normal stable
14 state. So I always advise people to take whatever you
15 normally take.
16 And if they are on some sedatives or
17 tranquilizers or whatever or other kind of medication,
18 beta blockers for heart problems I say take that because
19 the evidence shows that it is irrelevant when they are
20 taking it and there would be more problems if they
21 didn't take it.
22 Q Another theory that has been offered against
23 the use of polygraph is what is called a friendly
24 polygrapher technique. Can you tell us what that is and
25 then respond to whether that has anything to do with the
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1 validity of the outcome of the test?
2 A The friendly polygrapher hypothesis or
3 speculation to be more accurate was something that was
4 put forth by Martin Orne, a psychiatristpsychologist in
5 Pennsylvania. And Dr. Orne proposed that if a person
6 takes a polygraph test on a confidential basis where the
7 formal understanding is that if they pass the test, it
8 maybe helpful to them but if they fail the test it falls
9 under the attorneyclient privilege and cannot be
10 disclosed. He speculated that under those circumstances
11 a person would not be as concerned about failing the
12 test and therefore would be able to beat the test.
13 Q Has this theory been borne out by the
14 evidence and studies?
15 A No, there is no competent scientific evidence
16 to support that theory. In fact, there is evidence
17 around which would argue against it. All the
18 accumulated experience of doing confidential tests for
19 attorneys shows that the people who are guilty failed
20 the test basically. And furthermore on a theoretical
21 basis, it doesn't make any sense because in order for
22 that to happen, they would still have to react to the
23 control questions. And if they are not worried and
24 concerned about the outcome of the test, then they
25 wouldn't react anymore to the control questions than to
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1 the relevant questions. That doesn't make sense.
2 Furthermore in practical terms the theory
3 doesn't make sense either because there is a lot at
4 stake for a person in that situation even if they
5 believe that it can't be used against them. Because we
6 know that in the laboratory situation simply trying to
7 win $5 produces deceptive accuracy on guilty people on
8 the order of 95 persent. It is very compelling.
9 Well, these people have much more at stake
10 than that. When they take a privately arranged test, it
11 usually costs a substantial amount of money for them to
12 do that. If they get a competent expert, they may have
13 to travel a long distance to take the test or they may
14 have the expert travel long distance. Furthermore,
15 there is always the concern of what their attorney will
16 feel about them if it turns out that they are lying and
17 have been lying to their attorney.
18 And many of these people will express great
19 concern about when you tell them they failed, "Oh, gee,
20 what's my attorney going to think about this?" They are
21 very concerned about it. So that is a very substantial
22 motivation. Much more so than we ever see in a
23 laboratory scenario. And if it is effective in the
24 laboratory, it would be much more
25 Q Is there also a ultimate motivation there
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1 that they are going out there to try to have this test
2 done for an ultimate goal?
3 A That's right. The other side of it and very
4 much at stake is their possible future liberty. I mean
5 if it is a criminal matter and if they are worried about
6 a possible conviction on something they didn't do or
7 something they did do, being able to pass a polygraph
8 can be very helpful to them. And what they do is they
9 lose that potential benefit which is far greater than
10 the potential of earning $5 in a mock trial or $10 or
11 $500.
12 Q The long and short of it is the experience
13 and the tests have not borne out the friendly polygraphy
14 theory?
15 A No, I don't know any people that I would
16 consider to be authoritative in the field and the vast
17 majority of law enforcement examiners also believe that
18 this is not an operative principle in polygraph. In
19 fact, if there is any problem with polygraph in terms of
20 the level of anxiety of the subjects is that in general
21 it is too high not too low. And you have to do things
22 to calm them down.
23 Q You're aware that the Government in this case
24 is arguing that the directed lie control question is in
25 some fashion defective or scientifically unsound or
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1 whatever. I won't try to put words in their mouths but
2 it is being attacked here. I think you testified
3 earlier that it's basically just another method of the
4 control question based on the same underlying science;
5 is that correct?
6 A Yes, except the procedure for doing it is
7 somewhat different and more straightforward.
8 Q Have there been studies conducted
9 specifically to make sure that this refinement on the
10 older version of the control question is still as valid
11 as the older version?
12 A Yes.
13 Q Could you tell us about those studies?
14 A Well, this was a technique that as I
15 understand it was originally developed by military
16 intelligence for use in very sensitive national security
17 cases. And the first study I know of that is fully
18 written up was a study that was done by Dr. Barland and
19 a public case of the writeup I have I think is dated
20 1981. And in that study they used a mock espionage
21 scenario.
22 And they used a test that had directed lie
23 comparison questions in it and it produced quite a good
24 accuracy rate. It was in excess of 80 persent as I
25 recall on guilty people and somewhat slightly lower than
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1 that on the innocent people. Again the same pattern,
2 more false positives than false negatives. That was the
3 first study I know of that has been formally reported.
4 Q For whom did he do that study?
5 A As I recall that was done in cooperation with
6 military intelligence. I think he was doing that while
7 he was serving his reserve active duty cycle during the
8 summer as I recall. Something like that where he did a
9 study.
10 Q And have there been subsequent studies on the
11 directed lie technique?
12 A Yes, there have. Dr. Honts and I did a field
13 study which we published in 1988 as I recall in the
14 Journal of Police Science and Administration where what
15 we did was start using in fact, Dr. Honts started
16 first because I was a little bit more reluctant to try
17 it out just because I didn't think these directed lies
18 would be strong enough to enable an innocent person to
19 pass. And so he agreed to try it out first. And what
20 he did was in his field test in actual cases we put one
21 directed lie together with two probable lie questions so
22 that you could score it against either.
23 And then after he had been using it for a
24 while and it seemed to be working actually I take
25 that back. We didn't do it first. A person working for
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1 adult probation and parole by the name of Larry Kelly in
2 Utah decided to try it. And he brought us charts
3 showing that this control type question seemed to work
4 quite well.
5 And so then Charles said, "Well, I'll try it
6 out." And he started trying it and then I got up the
7 courage to try to put in one of those, too, and we
8 accumulated data over a period of a couple of years in
9 our file where we were able to independently verify
10 whether or not these people were guilty or innocent,
11 telling the truth or lying on the polygraphs.
12 And we then analyzed the charts blindly. I
13 analyzed his polygraphs because I didn't know anything
14 about his subjects and he analyzed mine. And we scored
15 them with and without the directed lie question. And
16 what we found is when we included the directed lie, it
17 made a noticeable difference in reducing the false
18 positive errors. More the innocent people now got a
19 passing score and the average score for the innocent
20 people went up significantly.
21 Whereas the guilty people basically were not
22 affected in terms of the average score. The significant
23 difference was that the innocent people were more
24 readily classified as truthful. And then
25 Q Then the guilty people were no more likely to
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1 beat the test?
2 A There was one person in that sample who
3 without the directed lie was inconclusive and with the
4 directed lie produced a truthful outcome and that became
5 an error. It was a slight shift and that was a very
6 unusual person. Mark Hoffman who was a very notorious
7 criminal in Utah. Three books were written about him
8 and he was a brilliant criminal and he figured out a way
9 to beat the test by using selfhypnosis and biofeedback
10 in a way that nobody we've ever seen has been able to
11 do. He had fifteen years of practice so there was one
12 case but it didn't shift the average results enough to
13 be significant.
14 Q Do either is there anyone in the field
15 including yourself who claims that the test is fullproof
16 in terms of 100 percent accuracy in any event?
17 A There may be some people around that make
18 such claims, but they have no credibility. Anybody that
19 is competent and knows the literature recognizes that
20 like anything there is an error rate and one has to live
21 with it.
22 Q Does the fact that sometimes innocent people
23 get called deceptive and deceptive people sometimes get
24 called truthful, 5 or 10 percent, does the fact that
25 occurs affect the scientific validity of the test in
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1 your opinion?
2 A No. In fact, I think if it didn't occur, we
3 would be a little suspect about the data. It would be
4 too good.
5 Q When you testify about the outcome of the
6 polygraph exam is that laid out before the finder of
7 fact very truthfully that we are not saying conclusively
8 one way or the other but this is what the significance
9 of the results are, this likelihood of truthfulness or
10 deception?
11 A Yes. It's a strong indicator but it is not a
12 final and ultimate answer. I didn't finish. I think
13 there are some other studies, too
14 Q Sure.
15 A After that a graduate student of mine
16 Q Incidentally, you mentioned the field study
17 that you and Dr. Honts did. Is that Exhibit E in the
18 materials we have?
19 A It's the one from the Journal of Police
20 Science and Administration on the field validity study
21 of the directed lie question.
22 MR. DANIELS: Your Honor, we move Defendant's
23 Exhibit E into evidence.
24 (WHEREUPON, Defendant's Exhibit E
25 offered into evidence.)
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1 MS. HIGGINS: No objection.
2 THE COURT: It shall be admitted.
3 (WHEREUPON, Defendant's Exhibit E
4 admitted into evidence.)
5 BY MR. DANIELS:
6 Q Sorry to interrupt. Go ahead.
7 A Then following that we did a laboratory
8 study, a large mock crime study in which we had four
9 different conditions. We wanted to look at the more
10 closely the role of comparison questions in a systematic
11 way. So my student, Steven Horowitz, did this for his
12 doctoral dissertation and we had as I recall 120
13 subjects in that study and we had four conditions.
14 One condition was a relevantirrelevant test.
15 Another group of subjects had what we called a trivial
16 directed lie. And what we did there is we took three of
17 the irrelevant questions, the neutral questions and had
18 them answer no to them instead of yes. So we converted
19 them to a lie to see what the simple effect of just
20 lying on a comparison question would be.
21 And then we had another group that we called
22 the personal directed lie where we made it relevant to
23 them and it was, "Have you ever told a lie? Have you
24 ever done something dishonest?"
25 I can't remember the exact ones but there
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1 were these simple ones that everybody has done. So it
2 was not only a lie that it pertained to them. And then
3 we had the traditional probable lie questions in a
4 fourth group. And they then ran through a mock crime
5 like I've talked about before and overall the personal
6 directed lie had the best utility. It had the highest
7 ability to differentiate truthful and deceptive people
8 accurately.
9 Q Was the research published?
10 A Yes, it has been published in a chapter that
11 I and Dr. Honts and Horowitz and Kircher contributed to
12 a book called Credibility Assessment that was the
13 publication from the NATO Scientific Conference on
14 credibility assessment that I helped organize in 1988.
15 It has also been published in an article that Dr. Honts
16 published in Current Directions in Psychology, which is
17 one of the major publications of the American
18 Psychological Society. That was an invited article as I
19 recall.
20 And we are in the process of submitting it
21 for publication to a scientific journal right now. And
22 it has been referred to another place. It was also
23 presented at the Society for Psychophysiological
24 Research meetings after being accepted for the program
25 during a peer review and the brief form of it, the
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1 abstract of the paper with all the findings was
2 published in the Journal of Psychophysiology.
3 MR. DANIELS: Your Honor, we move Exhibit I
4 which is the Credibility Assessment publication that Dr.
5 Raskin referred to and Exhibit J, Current Directions in
6 Psychological Science that Dr. Raskin referred to into
7 evidence.
8 (WHEREUPON, Defendant's Exhibits I and J
9 offered into evidence.)
10 MS. HIGGINS: No objection.
11 THE COURT: It shall be admitted.
12 (WHEREUPON, Defendant's Exhibits I and J
13 admitted into evidence.)
14 BY MR. DANIELS:
15 Q Is the directed lie refinement of the control
16 question technique in use in the United States and other
17 nations?
18 A Yes. In fact, I didn't quite finish with the
19 research because it's in use in part because the
20 Government has done extensive research on it. In fact,
21 at Dr. Barland's installation at the Department of
22 Defense Polygraph Institute, they have been doing
23 research with the directed lie and recently, I think it
24 was last year or the year before, finished a study in
25 which they got the highest accuracy of any study I know
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1 of done at that institute using only directed lie
2 questions as comparison questions in a new test format
3 that they designed.
4 And he has written in his report of the
5 research that it is now in use by many federal agencies
6 because of the extensive research that has been done on
7 the directed lie at the Department of Defense Polygraph
8 Institute.
9 Q Let me show you Defendant's Exhibit P, Dr.
10 Raskin. Can you tell us what Exhibit P is?
11 A It's a letter from Dr. William J. Yankee who
12 is the director of the Department of Defense Polygraph
13 Institute where Dr. Barland is employed. And it is
14 addressed to Dr. Honts who made a Freedom of Information
15 Act request last November regarding the use of the
16 directed lie control tests by U.S. government agencies.
17 Q What's the date of the letter?
18 A November 15th, 1994. And in this letter Dr.
19 Yankee indicated that ten different federal agencies at
20 that time were using the directed lie control test in
21 national security screening and in specific issue
22 criminal testing.
23 Q This is less than four months ago?
24 A I guess, yeah. About.
25 Q On the 15th of March, one week from now would
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1 be four months?
2 A Right. There may be more using it since then
3 because I know that as a result of the Joint Commission
4 on Security where I was asked to brief them at a special
5 session where they wanted to hear my testimony, there
6 was considerable interest in the directed lie because of
7 the issues of invasion of privacy that I alluded to
8 before and I think there is a general feeling in the
9 government of moving toward replacing the more
10 traditional probable lie tests with the directed lie to
11 overcome some of the other problems.
12 Q Now, the FBI is not on this list as of this
13 time; is that correct?
14 A That's correct. I don't know whether they
15 are using it or not.
16 Q But the DEA uses it?
17 A DEA, yes.
18 Q Military agencies?
19 A Yes.
20 Q Various intelligence agencies?
21 A Yes.
22 Q The Internal Revenue Service?
23 A Yes.
24 Q And the Department of Energy?
25 A Yes.
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1 Q The Internal Revenue Service and the DEA use
2 it both for screening examinations and for specific
3 issue criminal testing; is that correct?
4 A Well, the letter isn't quite clear. It says
5 they certainly use it for specific issue criminal
6 testing. Whether or not they are using it for
7 screening, I'm not sure. But they don't do the IRS I
8 don't believe does the national security screening and I
9 suspect DEA doesn't also. That would be more FBI rather
10 than DEA, I think but I am not that familiar with how
11 the government does things.
12 Q Does the letter indicate whether the
13 polygraph institute that Dr. Barland works with devotes
14 any instruction time to the use of this technique?
15 A Yes, it says that they devote two weeks of
16 instruction time in the use of the directed lie control.
17 MR. DANIELS: We would move Defense P, the
18 Government letter, into evidence, Your Honor.
19 (WHEREUPON, Defendant's Exhibit P
20 offered into evidence.)
21 MS. HIGGINS: No objection.
22 THE COURT: It shall be admitted.
23 (WHEREUPON, Defendant's Exhibit P
24 admitted into evidence.)
25 BY MR. DANIELS:
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1 Q Another matter that has been raised and
2 perhaps we should leave most of this for rebuttal, but
3 has been raised before the hearing by some informal
4 reports by Dr. Barland has been the issue of whether
5 there have been countermeasures involved in this
6 examination.
7 First, let's talk generally about
8 countermeasures. Are you familiar with the research on
9 whether and to what extent countermeasures can be used
10 to defeat the accuracy of polygraph examinations?
11 A Yes.
12 Q Can you tell us about that?
13 A Well, I first became involved in this about
14 the time that Dr. Honts came to the University of Utah
15 to begin work on his Ph. D. He had for his master's
16 thesis conducted a study at Virginia Tech University on
17 countermeasures, and he made me familiar with that work.
18 And then he continued that work in my laboratory at the
19 University of Utah and we did a number of studies while
20 he was there. And he has continued to do studies since
21 then on countermeasures and we published several
22 articles, scientific articles on countermeasure studies.
23 Q Let me deal with the admission of those
24 articles.
25 MR. DANIELS: Your Honor, we would move
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1 Exhibits N, Q, R and S into evidence along with M which
2 is Dr. Honts' vitae and listing of his publications.
3 (WHEREUPON, Exhibits N, Q, R, S, M
4 offered into evidence.)
5 THE COURT: Any objections?
6 MS. HIGGINS: No objection to N, Q and S. It
7 seems a little early to be introducing Dr. Honts' vitae.
8 If he is going to testify perhaps that would be a more
9 appropriate time so the Government objects to that at
10 this time.
11 THE COURT: How about R? Does the Government
12 object to Exhibit R?
13 MS. HIGGINS: No, Your Honor.
14 THE COURT: We will hold on to Dr. Honts'
15 vitae. All the other exhibits shall be admitted.
16 (WHEREUPON, Exhibits N, Q, R, S
17 admitted into evidence.)
18 BY MR. DANIELS:
19 Q Can you tell us the results of the studies on
20 countermeasures then, Dr. Raskin?
21 A Well, there are several I think important
22 findings. One is that if a person is given specific
23 training by somebody with expertise on how to employ
24 certain kinds of subtle, unobservable maneuvers such as
25 unobtrusively biting the tongue lightly to produce
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1 reactions on control questions or tensing muscles in the
2 legs to produce reactions on control questions or
3 engaging in mental arithmetic by subtracting backwards
4 by 7's implicitly on control questions, if they are
5 given careful training and explained how the tests work
6 and are given some practice in doing that while being
7 observed by this expert, then a substantial proportion
8 of them, maybe up to 50 percent even, can produce an
9 erroneous result on the polygraph test in a mock crime
10 situation.
11 Q When you said personal training in it, if
12 someone is given a list of instructions, for example,
13 and told to study on their own, can those people
14 effectively use countermeasures?
15 A No, in fact, we have done a study on that,
16 too. Dr. Rovner did a dissertation with me actually
17 before Dr. Honts came to study with me, and that was one
18 of the conditions we had. We gave people extensive
19 information and advice and gave them a written booklet
20 on all the things they might try and they were not
21 successful in beating the test.
22 Furthermore, we did another retrospective
23 study and also studies with people who had not been
24 given countermeasures training to see how many we did
25 more than one study, and we compiled them all into an
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1 article on spontaneous use of countermeasures by
2 subjects. We found that as I recall about 60 percent of
3 guilty people tried some maneuver to beat the test. And
4 these people without that special training invariably
5 failed. It was not successful. None of them in trying
6 these techniques could beat the test, and they tried
7 many things including a lot of the things that we tell
8 people they should try.
9 Dr. Honts also in his dissertation as I
10 recall surveyed his subjects and again found that among
11 the guilty subjects who tried doing things, they were
12 unsuccessful. It is only the people given very special
13 handson training by a sophisticated expert who knows
14 what to do and how to tell them to do it and have them
15 practice it with them present, those are the only people
16 that seem to be able to do this. And then when they do
17 it, experts can't even tell that they have been doing
18 it.
19 Q Other than in a laboratory test have you ever
20 advised someone to use countermeasures to beat the test?
21 A You mean in a real test?
22 Q Yes.
23 A Absolutely not. That would be just totally
24 unethical.
25 Q That's crooked, isn't it?
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1 A That would be I would think unlawful.
2 Q Are you familiar with other kinds of
3 scientific evidence that are kinds that are introduced
4 in courts day in and day out?
5 A Yes.
6 Q Is it possible to beat a urine test by
7 supplying someone else's urine?
8 A Yes, and by taking other kinds of substances.
9 I hear stories about all kinds of things that might
10 throw it off.
11 Q Is it possible to beat a psychological test
12 by getting specific training in what answers to give to
13 fake a particular mental condition?
14 A I believe so, yes.
15 Q Is it possible to affect the Rorschach test?
16 A Yes. I think if you had advice from an
17 expert on what kind of responses to give to those ink
18 blots that would fit certain categories, it would be
19 very easy to do that.
20 Q Can malingerers misrepresent symptoms to a
21 physician who is making a diagnosis?
22 A It happens all the time.
23 Q Is there anything really different in your
24 mind in the use of polygraphs as a result of the fact
25 that someone working with a crooked expert over a period
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1 of time can learn to alter the apparent results of the
2 test?
3 A Well, the answer to that I think is yes and
4 no. No in the sense that crooked experts could clearly
5 help people to alter all kinds of tests, but I believe
6 that simply going to the library and reading a sum of
7 the manuals for things like Rorschachs and other kinds
8 of tests and knowing what kinds of responses to give or
9 even on the MMPI, you could do it on your own. You
10 wouldn't need training.
11 With the polygraph technique, you need to
12 have somebody sit down and show you how to do it and
13 practice. The simple reading isn't sufficient.
14 Q In this case, Dr. Raskin, do you have any
15 reason whatsoever to believe that Dr. Galbreth attempted
16 to use any kind of countermeasures to beat your test?
17 A No, I have no evidence of that. I have no
18 reason to believe that. As far as I could tell, he was
19 very cooperative.
20 Q Did you have any reason to believe that he
21 had crooked lawyers that would help him on how to beat
22 the test? Is there any indication of that?
23 A No. I have known his lawyers for a number of
24 years and had I any evidence that they were crooked in
25 any way, I wouldn't have been working on this case.
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1 Q Thank you, sir. Dr. Barland indicated and I
2 am going to save most of this for rebuttal, but he
3 indicated that there was some breathing patterns here
4 that might be possible countermeasures. And I am not
5 characterizing his quantitative analysis or probability
6 analysis but made him concerned about countermeasures.
7 Is the use of breathing techniques an effective way to
8 institute countermeasures?
9 A I have never seen any evidence that shows
10 that breathing techniques can beat a properly conducted
11 polygraph test. The only techniques I know of that are
12 effective are the ones that I described that Dr. Honts
13 and I have used in research: muscular contractions,
14 biting the tongue, mental arithmetic, things are that
15 unobtrusive. Breathing manipulations, I don't know of
16 any evidence that shows that they are an effective
17 countermeasure.
18 Q Let me move on to the area of publications.
19 We have introduced some specific publications on
20 specific issues. Let me ask generally, has the subject
21 of the Application of Autonomic Measurements from the
22 Apparent Science of Psychophysiological to the Mentor of
23 Truth and Lie Detection been the subject of publication
24 and peer review?
25 A Yes, for many, many decades.
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1 Q How many publications can you estimate there
2 have been on the application of these scientific
3 principles to polygraph testing?
4 A Hundreds.
5 Q You alone have authored how many?
6 A I would have to guess. Dozens.
7 Q Does your vitae which has been introduced as
8 Exhibit B have all the publications that you have
9 authored or coauthored?
10 A I believe except possibly one. I'm not sure
11 if I entered it on. It's a couple of publications that
12 Dr. Honts and I have been doing recently and I can't
13 remember if they are all on there.
14 Q And is Defendant's Exhibit D a representative
15 example of some articles that have been published on the
16 Application of Apparent Science to the Polygraph Exam?
17 A It's an example. I think this is a
18 bibliography of a chapter that I wrote on a book back
19 about 1988, if I recognize it.
20 Q It's a sampling rather than a exhaustive
21 list?
22 A Yes, and that would be out of date, too,
23 because that would be seven years ago.
24 Q There are more than are simply represented
25 there?
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1 A Yes, and those would be publications to
2 illustrate some of the points that I was making in that
3 particular article.
4 Q That's an illustrative list rather than as an
5 exhaustive even as of that time?
6 A Yes.
7 MR. DANIELS: We would move Exhibit D for
8 that purpose, Your Honor.
9 (WHEREUPON, Defendant's Exhibit D
10 offered into evidence.)
11 MS. HIGGINS: No objection.
12 THE COURT: It shall be admitted.
13 (WHEREUPON, Defendant's Exhibit D
14 admitted into evidence.)
15 BY MR. DANIELS:
16 Q Have these publications included publications
17 in professional journals that are read by the members of
18 the polygraph profession and psychophysiologists in
19 general?
20 A Yes.
21 Q And have the publications been peer reviewed
22 either formally or informally?
23 A Almost all of them. I think occasionally
24 there would be something that might be written in a less
25 formal setting that might not be subjected to anything
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1 other than an editorial review. But in general there
2 are scientific journalists and they are subjected to an
3 extensive and exhaustive peer review. And I have done
4 many of those reviews myself. The ones that are in book
5 chapters would be reviewed by the editors and perhaps
6 other contributors and people wouldn't be invited to do
7 such things unless they had already some reputation for
8 doing good work in that field.
9 Then things that are published as abstracts
10 presented at scientific meetings like the Society for
11 Psychophysiological Research, those are peer reviewed
12 even just to get on the program and then others would be
13 subjected to various form. But in general they have
14 been looked at closely and sometimes exhaustively.
15 Q There is a formal peer review process by
16 which articles are examined by your peers to determine
17 whether they will be published in the first place; is
18 that correct?
19 A Yes, and sometimes or often they are
20 rejected. These scientific journals that we publish in
21 usually have a very high rejection rate and they are
22 very selective about what they take. And sometimes you
23 almost always you have to make some revisions.
24 Q After the formal peer review process and
25 publication, are these articles on the Application of
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1 Apparent Science to the Polygraph Technique read and
2 reviewed by other members of the profession?
3 A Oh, yes. They are published in these
4 journals. The people who get the journals read them,
5 they are discussed at meetings, they use those as a
6 basis for some of their own writings and research.
7 Q Are responsive articles and letters written
8 about them?
9 A Yes. And there are critiques sometimes
10 offered and replies to these. Sometimes back and forth,
11 you know, a series of replies and counterreplies.
12 Q So members of the profession may analyze and
13 disagree with this point or that point?
14 A Yes. Goes on all the time. Plus at
15 scientific meetings if you present a paper like that
16 especially in an area like lie detection where there is
17 a lot of interest and a lot of discussion, there might
18 be a lengthy debate about them at a meeting.
19 Q Is that standard in the scientific profession
20 to your knowledge as a scientist?
21 A Yes, that is what science is supposed to be
22 all about.
23 Q Is the fact that there may be disagreement or
24 debate indicative that any particular opinion or
25 application of scientific theory invalid?
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1 A That it's invalid?
2 Q Yes. Does the disagreement or minor
3 disagreement or major disagreement an indication that a
4 particular theory is invalid?
5 A No. In fact, I would say that the only time
6 you see no disagreement about some scientific
7 publication or finding is when it's so trivial or of so
8 little interest that nobody really cares.
9 MR. DANIELS: Your Honor, at this time we
10 would move into evidence Exhibits F, G, H, O, V and W as
11 examples of articles that have been written of
12 polygraphs. In fact, all of these have been authored or
13 coauthored by Dr. Raskin or Dr. Honts and would be
14 available for crossexamination.
15 (WHEREUPON, Exhibits F, G, H, O, V, W
16 offered into evidence.)
17 MS. HIGGINS: Your Honor, F, G, H
18 MR. DANIELS: O, V and W.
19 MS. HIGGINS: No objection.
20 THE COURT: They shall be admitted then.
21 (WHEREUPON, Exhibits F, G, H, O, V, W
22 admitted into evidence.)
23 BY MR. DANIELS:
24 Q We have now covered whether the application
25 of the psychophysiological techniques to the polygraph
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1 procedure we have been discussing here today can be
2 tested. It has been your testimony that it can be
3 tested?
4 A Yes.
5 Q Both by lab studies and field studies?
6 A Yes.
7 Q We have gone over the fact that it has been
8 tested extensively in both of those?
9 A Yes.
10 Q I think we just covered whether the theory or
11 technique has been subjected to peer review and
12 publication. Is there any doubt in your mind about
13 that?
14 A No. It has been going on for a long, long
15 time.
16 Q We have gone over the known or potential rate
17 of error which ranges in the 90 percent range 90 to
18 95 percent?
19 A Yes. Not rate of error at 90 to 95 percent.
20 Q I'm sorry. Accuracy?
21 A Accuracy.
22 Q Rate of error then would be 5 to 10 percent?
23 A I believe that's a reasonable interpretation
24 from the better conducted studies.
25 Q And is that error rate ever concealed from
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1 the finder of fact? Is the polygraph being represented
2 by any ethical polygraphist as being 100 percent
3 foolproof anymore than other types of evidence?
4 A No, and I think anybody that would be foolish
5 enough to try that if there was an attorney in the room
6 that was awake would get devastated.
7 Q I'm going to go to the next one. What
8 standards exist to control the techniques operation?
9 Are there standards that exist that control the
10 techniques operation or is it just one vast group for
11 all?
12 A No, there are standards. Of course, the
13 standards vary depending on the context and really the
14 part of country that we're talking about.
15 Q Does that differ from psychological or
16 medical rules that may vary from state to state?
17 A I don't believe so. Particularly
18 psychological in some states there's no regulations and
19 in some states there is very careful regulation.
20 Q Can you tell us about some of the standards
21 that exist to control the techniques operation?
22 A Well, there are licensing regulations in many
23 states, more than 20 states including New Mexico and
24 Utah where I live.
25 Q Are you licensed in both of those states?
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1 A Yes, I am licensed in both of those states.
2 And they have very extensive licensing regulations and
3 procedures for getting and maintaining a license as well
4 as in New Mexico the Rule of Evidence that controls its
5 use for evidence. It's a very carefully articulated and
6 developed rule over a period of years.
7 Also, in the federal sector as I understand
8 it in order to be a polygraph examiner for an agency,
9 they have a sort of certification process and that
10 involves attending one of the schools which is usually
11 the Department of Defense Polygraph Institute.
12 Q The one that Dr. Barland is with?
13 A Yes. Other than the CIA, I believe all the
14 federal agencies send their examiners there for their
15 basic training and followup courses. The FBI Academy
16 also puts on special courses for polygraph examiners and
17 they have I am not sure what the exact things are
18 they have to do to maintain their certification but they
19 have procedures.
20 And they also have quality control programs
21 in most of the agencies where they check up on people's
22 work and they have to send it in and have it reviewed
23 independently at headquarters to see if it is still
24 adequate. And so that is generally in effect at the
25 federal sector.
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1 And then in Utah and New Mexico and other
2 states, too, there is a requirement for continuing
3 education where polygraph examiners in order to review
4 their license annually must show evidence that they have
5 attended actual specific training in polygraph
6 techniques put on at workshops and meetings and so on
7 where they go to get refresher and new information.
8 They have to submit that together with the new
9 application for renewing their license.
10 Q Who reviews the licensing in New Mexico?
11 A As I recall it's the Bureau in Utah it is
12 the Department of Regulatory Licensing and here it is
13 the Polygraph Bureau or something. It's part of the
14 State of New Mexico and I think they oversee private
15 investigators.
16 Q Is that out of the Attorney General's Office?
17 A I believe it's maybe out of the Department
18 of Public Safety. It's a state agency.
19 Q Department of Public Safety, the police
20 agency?
21 A Yes, I think so. And they have a bureau in
22 there that deals with licensing of polygraph examiners
23 as well as other
24 Q Private investigators?
25 A Yes, I believe so. David Stewart as I recall
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1 is the director of that and he administers that program.
2 Q You mentioned the federal examiners, do you
3 know if the plaintiff in this case, the United States of
4 America Government, employs polygraph examiners to
5 conduct the kinds of tests that you have conducted here?
6 A The United States Government is in my
7 understanding the largest utilizer of polygraph
8 examinations in the world.
9 Q Do you know how many polygraph examiners the
10 plaintiff in this case has on salary to conduct these
11 examinations?
12 A My understanding is that the FBI has 52
13 polygraph examiners, FBI agents on their payroll. Other
14 agencies have many examiners. Whether the Department of
15 Justice itself has separate examiners, I am not sure. I
16 don't know that they do.
17 Q Is it fair to say that the number employed by
18 the federal government is in the hundreds?
19 A Certainly.
20 Q And do you know whether state law enforcement
21 agencies employ polygraph examiners to conduct tests of
22 truth and lie deception?
23 A Yes. But it is my understanding that
24 virtually every major nonfederal law enforcement agency
25 in the nation has one or more polygraph examiners on
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1 staff.
2 Q And from your experience and education, do
3 you know whether they rely on the outcome of those tests
4 in making decisions of truth and deception?
5 A Yes, I regularly train people who work for
6 all of these agencies and provide consultations. And
7 they take it very, very seriously. It is one of their
8 major investigative tools in criminal investigation and
9 also in national security counterintelligence screening.
10 Q Do you know whether or not all 52 or so
11 agents of the Federal Bureau of Investigation are too
12 busy to come down here to New Mexico in District Court
13 and testify? Do you have any reason to believe that?
14 A I don't see why they would be that busy. I
15 don't think they run that many polygraphs tests that
16 they don't have time. I have seen them do it before.
17 Q Testify?
18 A Yes.
19 Q In fact, have you seen Agent Murphy come out
20 and take the time to testify in the United States
21 District Court before?
22 A Yes, in Federal District Court in Los Angeles
23 I sat through his testimony.
24 Q What case was that?
25 A That was a case of the United States versus
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1 Richard Miller, the FBI agent accused and ultimately
2 convicted of espionage.
3 Q Did Mr. Murphy give a polygraph examination?
4 A He gave nine polygraph examinations in a
5 period of a day and a half.
6 Q Did he find him truthful or deceptive?
7 A He reported deceptive on every examination.
8 Q Did he or did he not testify in court?
9 A He testified at a hearing and at the criminal
10 trial about his testing him and the results of his
11 testing including his scores and everything else.
12 Q All right. Let me I think we have talked
13 about the standards that exist that control the
14 techniques operation. I believe you said earlier you
15 conducted the test in this case according to New Mexico
16 standards; is that correct?
17 A That's correct. I have been doing that
18 virtually since I started doing polygraphs.
19 Q It's both the licensing standards and the New
20 Mexico Supreme Court's standards?
21 A That's correct.
22 Q What did the standards of the New Mexico
23 Supreme Court require with regard to the administration
24 of a particular test?
25 A They require first of all that the
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1 examination be fully taperecorded.
2 Q Did you do that?
3 A Yes.
4 Q Did you provide that to the Government?
5 A Well, I provided it to you and as I
6 understand it you provided it to the Government.
7 Q All right.
8 A They require that the examiner inquire as to
9 the examinee's background, health, medical status and
10 things like that, psychiatric status.
11 Q Did you do that?
12 A Yes, I did.
13 Q Is that on the tape?
14 A Yes, it is. They require as I recall the
15 well, some of this is licensing standards so I have to
16 think for moment and some of it is the rule. You have
17 to review the questions with the subject. I don't know
18 if that is articulated in the Rule of Evidence but it
19 would be required by the licensing regulation.
20 Q Is that good practice in any event?
21 A It is absolutely necessary practice. So it
22 would be an inappropriate test if and what the Rule
23 of Evidence does it supplements the licensing
24 regulation. The Rule of Evidence also requires that a
25 control question technique be utilized.
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1 Q And did you do that in this case?
2 A Yes, I did. It requires that the examination
3 be quantitatively scored in a manner that is accepted.
4 Q Quantitatively scored, is that the same as
5 numerical scoring?
6 A Yes.
7 Q As opposed to looking at it and getting a
8 feeling without assigning numbers to the answers?
9 A That's right. And it also requires that the
10
11 Q You did that in this test?
12 A Yes, I did. And it also requires that the
13 examiner who is going to serve as an expert be qualified
14 and have a minimum of five years of experience in
15 administering the examinations before he or she would be
16 allowed to testify as an expert in court.
17 Q You have met that qualification?
18 A Unfortunately many years ago.
19 Q And is it required that you inquire as to
20 whether any other polygraphs exams have been
21 administered to this subject?
22 A Yes. And it requires that any other
23 polygraphs examinations administered on this topic or
24 this matter be disclosed.
25 Q Were there any other such examinations in
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1 this case?
2 A I am not aware of any.
3 Q Have we covered them all?
4 A Best that I can remember within the frailties
5 of my memory.
6 Q You were talking about the numerical scoring.
7 Is this an appropriate time to discuss how that scoring
8 technique is specifically applied and how the extent
9 to which it is used by law enforcement and others
10 throughout the country?
11 A Yes, I think so.
12 Q Could you briefly tell us about that?
13 A The numerical scoring system maybe to
14 understand it best is to look at it in historical
15 perspective because it has evolved and different people
16 use it in somewhat different ways. But it began with
17 the work of Cleve Backster and he developed a numerical
18 scoring system around 1960, 1961 as I recall. And this
19 was a way of assigning numbers as I described earlier to
20 the relative strength to control and relevant questions.
21 And he had a set of rules for doing this and
22 he was the first one to put it forward. Unfortunately,
23 his system although it was a major advance had certain
24 weaknesses in it. It did not completely comply with
25 known scientific knowledge in psychophysiology. Some of
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1 the things that he looked at are really contrary to what
2 we know.
3 Q This was devised several decades ago?
4 A It was about 1960 and Mr. Backster doesn't
5 have any scientific training or even a college
6 education. He's a very bright man, but he didn't really
7 know psychophysiology that well. So he put forward this
8 system that was very helpful. Then what happened was
9 the U.S. Army Military Police School which was the
10 precursor of the Department of Defense Polygraph
11 Institute Training Program took the Backster system and
12 modified it to correct some of the deficiencies because
13 the Backster system it turns out was biased against a
14 truthful person obtaining a truthful result.
15 It has many false positive errors. And so
16 they modified it. They changed some of the rules. They
17 took out some of the ones that were just almost
18 impossible to understand, and they developed a set of
19 criteria. I think there was something like 28 different
20 things you could look at in the tracings to determine,
21 you know, how to assign the scores. And they used this
22 plus to minus three for these comparisons as Backster
23 had done.
24 And then that was a point in which my
25 laboratory entered this endeavor back in the early 70's
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1 and we used scientific methods for gathering data and
2 for analyzing data to determine which of the things that
3 were in use actually worked well and which things needed
4 to be discarded. And we also found that there are many
5 things that were being used that were just wrong. They
6 were wrong psychophysiologically. They didn't make
7 sense. And we eliminated those, also.
8 And when we reduced that down to essentially
9 approximately eight criteria that can be used to score
10 the charts and this made it a much more reliable system.
11 We did studies to show very high interrated reliability
12 as we defined it and higher accuracy. And that so is
13 the system as I understand it that we practice and that
14 we teach to law enforcement or private examiners or
15 government examiners as well as the it's been adopted
16 by the government of Canada, their polygraph training
17 school at the Canadian Police College, which trains all
18 of the examiners in Canada for law enforcement, both
19 federal and local law enforcement.
20 Q Have you ever had FBI Agent Murphy as a
21 student in your school?
22 A Yes, he attended one of my workshops where we
23 teach this material. I think it was about 1985
24 approximately.
25 Q Is that the technique you taught him?
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1 A Yes, although it has probably been refined a
2 little bit since then, but it was the basic technique
3 that he was taught along with underlying
4 psychophysiology.
5 Q Do you think it's professionally responsible
6 to score a test without using some kind of numerical or
7 computer scoring or some other objective scoring
8 procedure?
9 A No, I think it would be irresponsible. It is
10 unacceptable. It has a higher error rate and it
11 wouldn't be accepted in the courts of New Mexico. It
12 would violate the rule.
13 Q Have we covered the numerical scoring to your
14 satisfaction?
15 A In general, yes.
16 Q Now, I would like to ask you about this final
17 factor, the degree of acceptance of the technique within
18 the relevant community. Is it fair to say there are a
19 couple of communities that are interested in the
20 application of these principles to the polygraph?
21 A At least a couple, yes.
22 Q One of them being the polygraph community
23 itself?
24 A Yes.
25 Q And the other being the psychophysiology
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1 profession?
2 A Yes.
3 Q Is the technique accepted within those two
4 communities?
5 A Oh, very definitely.
6 Q And is there any way to quantify or
7 characterize the level of acceptance and is there any
8 evidence of that?
9 A Of course, the within the polygraph
10 community the technique is I mean it is so validating
11 in that sense because that's what these people do for a
12 living.
13 Q The several hundred government agents, for
14 example?
15 A Yes, plus all these law enforcement and
16 private examiners all over the country. If they don't
17 accept the technique, then one wonders what they are
18 doing. They don't dispute it. In fact, if anything
19 they are sometimes overly supportive in the sense of not
20 recognizing that there is some error. Occasionally you
21 see that.
22 Q How about the psychophysiological scientific
23 community?
24 A Well, yes, very definitely.
25 Q In the field of psychophysiology there are at
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1 least a couple of different disciplines; isn't that fair
2 to say?
3 A Oh, there are many. With increasing
4 specialization in any scientific field, you have a sort
5 of compartmentalization of people with regard to their
6 special expertise. And I would say that there are many
7 subdivisions of psychophysiology.
8 Q Are there some people who do specialize in
9 autonomic measurements and some who do not?
10 A That's correct. There are two branches there
11 in the sense that there is one group that calls
12 themselves cognitive psychophysiologists and what they
13 really mean is they measure things off the surface of
14 the scalp typically and make inferences about what is
15 going on in the brain.
16 Q Like EEG's?
17 A EEG's, evoke potentials, things related to
18 that. And they call themselves cognitive
19 physcophysiologists which is a term they apply to
20 themselves. I don't think it is exclusive to them in
21 the sense that we are all dealing with cognitions when
22 we deal with psychophysiology. That's been sort of a
23 brand name for that kind of work. And then there are
24 the
25 Q Are those the people who deal with advocation
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1 of their principles to polygraph instruments of the kind
2 we are talking about here?
3 A No, they usually don't measure autonomic
4 variables like we are talking about. They measure
5 things typically off the scalp.
6 Q And the other branch you were going to
7 mention?
8 A They would be more the people who deal with
9 autonomically controlled measures like the things that
10 we have been talking about. And there are other people
11 who deal with neuroendocrine kinds of variables and
12 other more sort of neurophysiological components, but I
13 would say that in terms of numbers the autonomic
14 psychophysiologists are the largest group and the second
15 largest group are the cognitive psychophysiologists.
16 Q Among the autonomic psychophysiologists does
17 the application of a polygraph technique that you use
18 have agreed acceptance within that community?
19 A Oh, definitely so.
20 Q Would you say it is more or less the
21 majority?
22 A It is clearly more the majority.
23 Q How about even looking at the field very
24 broadly, all psychophysiologists, does the use of this
25 polygraph technique have agreed acceptance within that
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1 larger scientific community?
2 A Yes.
3 Q How do you know that?
4 A Well, there are two surveys that have been
5 conducted.
6 Q Of all the psychophysiologists; is that
7 correct?
8 A Well, it wasn't an exhaustive sample, it was
9 a random sample which selected
10 Q It was all areas of psychophysiology?
11 A Yes. They were sampled regardless of their
12 specialization. Just because they were members of the
13 society and they then randomly sampled from them. One
14 study took every fifth member on the membership list and
15 tried to contact them. That was done in 1982 by the
16 Gallup organization.
17 They were commissioned to do a special
18 scientific survey of that society as part of a civil
19 case which involved the Wall Street Journal in a libel
20 issue. And they wanted to assess what the attitudes
21 were out there so they sampled every fifth person from
22 the list and then they asked them a lot of questions.
23 And among those questions they ultimately
24 asked them their opinion on the usefulness of polygraph
25 or lie detector techniques for assessing truth or
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1 deception with regard to a specific statement or matter
2 of fact. And they then tabulated the responses. They
3 gave them four different categories of response to use.
4 One was could be used as a sole basis for determining
5 truthfulness. Second category was is a useful tool to
6 be considered along with other information. Third was
7 is of little usefulness entitled to little weight. And
8 the fourth was is useless.
9 Q What were the results of the poll?
10 A As I recall one percent said it could be the
11 sole basis for determining truthfulness. 62 percent as
12 I recall said that it was a useful diagnostic tool to be
13 used along with other evidence. 34 percent as I recall
14 said that it was of little usefulness entitled to not
15 very much weight. And one person as I recall, 1 percent
16 said is of no usefulness.
17 Q So even before Daubert a majority of
18 psychophysiologists sampled said that the polygraph is a
19 useful technique when used along with other evidence?
20 A Right. In fact, depending on how you
21 interpret that only one person, 1 percent said it was
22 useless. There were some who said, well, it is not very
23 useful at all, but they didn't say it was useless. And
24 then the majority by about almost two to one ratio said
25 it's a useful diagnostic tool.
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1 Q And have there been any surveys conducted of
2 psychophysiologists since the Daubert decision was
3 handed down?
4 A What's the date of the Daubert decision? I
5 think there was a survey done just before the Daubert
6 decision came out.
7 Q All right.
8 A I think it was done in 1992 as I recall and I
9 think Daubert was 1993, if I am not mistaken.
10 THE COURT: It was '93.
11 THE WITNESS: Sorry, which date?
12 THE COURT: It was June of '93.
13 BY MR. DANIELS:
14 Q Let me hand you Defendant's Exhibit L. Do
15 you recognize that?
16 A Yes, this is a master's thesis by Susan Amato
17 from the University of North Dakota and it's dated
18 November 1993, but the actual data collection was done
19 in '92 as I recall.
20 Q If you look at the first page, January of '93
21 to be the accurate date of the data collection? In any
22 event the data collection was shortly before the Daubert
23 decision. The report was published following the
24 Daubert case itself being published?
25 A That's my understanding, yes.
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1 Q And could you tell us briefly what the result
2 what the purpose was and what the result was?
3 A This was a study done under the direction of
4 Dr. Honts who was her supervisor in her graduate work,
5 and the purpose was to follow up and see what the
6 current attitudes were in 1992 when these data were
7 collected.
8 Q Among the whole broad field of
9 psychophysiology instead of just polygraphers?
10 A Yes. Similar to the way that the earlier
11 survey had been done by the Gallup organization. And
12 they surveyed the people, and what they did also is they
13 not only asked them a lot of questions, but they asked
14 them to identify themselves to self describe their
15 knowledge of the polygraph literature. So they wanted
16 to separate them into people who felt that they were
17 highly informed about the scientific literature
18 regarding polygraphs and those who felt they had little
19 information about it.
20 Q If you were to answer that questionnaire, how
21 would you characterize yourself? Highly informed or
22 very little informed?
23 A I would characterize myself as highly
24 informed because I've worked extensively in this area.
25 Q If you got the survey in 1965, how would you
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1 characterize yourself regarding your degree of
2 information about polygraphs?
3 A In 1965?
4 Q That's right.
5 A I would have to say I would be in the low
6 informed category.
7 Q If you were asked about the usefulness of
8 polygraphs back then, what were your answer have been?
9 A It would have been pretty negative probably.
10 I would have said either it is questionable or useless.
11 Q What did these results show?
12 A These results show that overall they are
13 they are almost indistinguishable in the terms of the
14 overall sample relative to the earlier survey.
15 Q In other words the majority of the
16 psychophysiologists said it was a useful technique used
17 with other evidence?
18 A Yes. 60 percent said that. 37 percent said
19 it was of questionable usefulness and entitled to little
20 weight. That was the phrase used in the earlier one.
21 And less than 2 percent said it was useless, but
22 interestingly when they segregated the data into those
23 who felt they had little information and those who felt
24 they had a lot of information to base a judgment, those
25 who had high information and that's more than half the
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1 sample here who rated themselves one way or the other,
2 more than 80 percent endorsed the statement that it is a
3 useful diagnostic tool and another 2 percent said that
4 it's sufficiently reliable to be the sole determinant
5 and only 12 percent said it was of questionable
6 usefulness.
7 Q What does that indicate to you? That kind of
8 correlation?
9 A I think what that shows is that among those
10 people who know the literature and that is really the
11 relevant group, not people who don't know the
12 literature, it's given a high degree of acceptance.
13 Q The degree of acceptance in the technique
14 within the relevant community you would say is high?
15 A Oh, yes, definitely.
16 Q I want to just briefly move to the particular
17 polygraph exam in this case.
18 MR. DANIELS: And, Your Honor, I am not going
19 to spend much time on it because if I'm correct on my
20 perception the particular test is not the focus of this
21 but the overall technique, the particular test is what
22 is left for testimony and countertestimony on
23 crossexamination before the jury. We can spend more
24 time on it if the Court has questions.
25 BY MR. DANIELS:
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1 Q Let me ask you to look at Exhibit C, Dr.
2 Raskin. Could you identify Exhibit C for the Court,
3 please.
4 A Yes, that is my report addressed to David
5 Freedman, your colleague, regarding the examination I
6 conducted of Mr. Galbreth that was conducted on the 10th
7 of August 1994. The report is dated the 11th of August
8 of '94 and attached to the report is a complete question
9 list of all the questions I asked Mr. Galbreth.
10 Q Does the report fairly and accurately
11 summarize the way the test was administered and the
12 results of it?
13 A Yes.
14 MR. DANIELS: Your Honor, we would move
15 Exhibit C into evidence.
16 (WHEREUPON, Defendant's Exhibit C
17 offered into evidence.)
18 MS. HIGGINS: No objection.
19 THE WITNESS: I would say that it does
20 accurately represent I know of no errors in it.
21 THE COURT: Exhibit C will be admitted.
22 (WHEREUPON, Defendant's Exhibit C
23 admitted into evidence.)
24 BY MR. DANIELS:
25 Q How many relevant questions did you have?
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1 A Four.
2 Q And could you tell us very briefly how you
3 formulated those four relevant questions on page 2, I
4 believe, of Exhibit C?
5 A Well, first I had a brief discussion with Mr.
6 Freedman about the issues of the case. And I then read
7 materials supplied to me from the actual case materials
8 so that I could familiarize myself with the case facts
9 and what the allegations were and know where the
10 disputed areas were that were relevant for a polygraph
11 examination. I studied those carefully and I discussed
12 that as I recall further with Mr. Freedman to make sure
13 that I understood what the legal issues were that needed
14 to be resolved.
15 And then I conducted the polygraph
16 examination with Mr. Galbreth and we again studied those
17 discussed those very carefully to make sure that and
18 he and I both understood what we're talking about. And
19 then I had already formulated questions to be asked of
20 him and may have had some minor modifications based upon
21 our discussion but I don't recall. It would be on the
22 tape. And then I ended up with these four questions.
23 Q Very briefly in your professional opinion
24 were the four relevant questions properly framed
25 questions that are designed to produce a good polygraph
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1 result?
2 A In my humble opinion I think they are
3 excellent questions. I wouldn't have used them
4 otherwise.
5 Q Now, those four questions were not the only
6 ones you asked; is that correct?
7 A That's correct. There were seven other
8 questions on the page.
9 Q Are those are on the third page of Exhibit C?
10 A Yes, they are the attached question list.
11 Q Could you describe briefly what the function
12 is of those other questions that you asked Dr. Galbreth?
13 A Yes, there are three directed lie questions
14 labeled D1, D2, D3. And those serve the function
15 that I described earlier, you know, for comparison
16 questions to compare the reactions to the relevant
17 questions and also to properly establish the
18 psychological set of the subject to take the test.
19 There are two neutral questions, N1 and N2, that are
20 just irrelevant.
21 Q Is that standard practice also?
22 A Yes, we usually have a couple of those in a
23 test. Sometimes people use more. I use two. And then
24 there are two other questions. The first question
25 always on every test that I conduct is what I call an
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1 introductory question which is do you understand that I
2 will ask only the questions that we have discussed. And
3 that serves the purpose of asking a throwaway question
4 as the first question because typically there is a
5 fairly strong reaction to the first question just
6 because it breaks the silence.
7 Q You don't score that one?
8 A You never score the first question because it
9 usually invokes a reaction and it's also to establish
10 the groundrules to make sure that this person
11 understands that there will be no surprises. And then
12 the second question is what is known as a sacrifice
13 relevant and again that is right near the beginning of
14 the test.
15 And it is used to raise the issue of the test
16 with the subject at a point where it is not evaluated
17 either. And basically just to ask them if they intend
18 to answer truthfully all the questions about the issue
19 of the test which in this case is allegations that you
20 knowingly underreported rent and salary payments from
21 other dentists to avoid taxes.
22 Q As a result of the administration of this
23 test and your scoring of it, what score did you arrive
24 at?
25 A Plus 29.
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1 Q And what does it take for a truthful,
2 positively truthful examination within the 90 to 95
3 percent accuracy range that we talked about before?
4 A It takes a minimum of plus 6 total for the
5 test.
6 Q Can you tell us what your degree of
7 confidence is in the outcome of this test?
8 A I have a very high degree of confidence.
9 It's a very clear result to the point where I don't
10 believe that anybody who scored these charts objectively
11 and knows how to apply the rules could come up with
12 anything but a definite truthful result.
13 Q Would you take a look at Defendant's Exhibit
14 T. Does that reflect your total numerical score of 29
15 and the individual components of it?
16 A Yes.
17 MR. DANIELS: We move Exhibit T into
18 evidence, Your Honor.
19 (WHEREUPON, Defendant's Exhibit T
20 offered into evidence.)
21 MS. HIGGINS: No objection.
22 THE COURT: It shall be admitted.
23 (WHEREUPON, Defendant's Exhibit T
24 admitted into evidence.)
25 BY MR. DANIELS:
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1 Q At that time when you administered and scored
2 the exam and reported back to Dr. Galbreth's counsel
3 with Exhibit C, did you conduct any kind of computerized
4 scoring at that time?
5 A No, I normally don't do it.
6 Q Now, you have at the top of Exhibit T
7 something that says computerized polygraph system. What
8 does that refer to?
9 A That refers to the actual equipment and
10 software that I use in all my polygraph examinations.
11 It is called the computerized polygraph system. It is a
12 fully computerized polygraph that was developed in my
13 laboratory together with Dr. Kircher.
14 Q Is that the one you spoke of earlier?
15 A Yes, it is marketed by Stoelting Company to
16 polygraph people.
17 Q I just want to get it clear that at the same
18 time the polygraph instrument was making the tracings,
19 the physical tracings on the graph paper, the
20 information was being fed directly from the sensors into
21 the computer; is that correct?
22 A Well, not quite correct because there is no
23 graph paper and no pens in this system. It is a fully
24 electronic computerized system. And what it does is it
25 goes right into the computer and is displayed in real
BETTY J. LANPHERE
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1 time on the computer screen and stored in the computer
2 so you can later print charts.
3 Q All right. So in addition to the printout
4 it gives you of these tracings, it also has the data
5 stored in computer language inside the computer; is that
6 correct?
7 A Yes, it is all digitally stored in computer
8 files.
9 Q But with the tracings that came out of the
10 machine you did the numerical scoring on the tradition
11 system; is that correct?
12 A Well, actually I probably scored them off the
13 computer screen while the charts were being printed in
14 the background.
15 Q By measuring the differences though in the
16 same way you've talked about?
17 A Yes. You can do it more effectively on the
18 computer screen so you can magnify things and see it
19 more clearly.
20 Q Did there later come a time when you had your
21 computer give you a computer analysis of the result of
22 the test as well as your measuring the lines on the
23 graph in the traditional numerical scoring technique?
24 A Yes.
25 Q How did that come about?
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1 A Well, I think as I recall you indicated to me
2 that the Government had asked about that and something
3 about whether or not it had been done. And I think they
4 also asked about that time for a copy of the computer
5 files so that Dr. Barland could use one of our
6 computerized polygraph systems that he has at his
7 institute to do whatever analysis he wanted to. So
8 since they seemed to be interested in having that I went
9 and ran it. It took about 20 seconds.
10 Q In other words punched out a request in the
11 computer to give you a computerized score as well as the
12 tracings that you see here?
13 A Yes.
14 Q Incidentally did you provide the computer
15 disk and all the data to us to provide the Government?
16 A Yes.
17 Q And what was the result of the computer
18 analysis of the probability of the truthfulness of this
19 test?
20 A The result was that the probability of
21 truthfulness was approximately .95 or 95 chances in a
22 hundred that these charts represented a result from a
23 person who is being truthful.
24 Q And how did that correlate with the
25 traditional numerical scoring that you had done on it?
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1 A It is quite consistent. The numerical score
2 showed a very strong truthful outcome and the
3 probability analysis showed a similar result.
4 Q What was the likelihood of truth from a score
5 such as the kind you received under the numerical
6 scoring system? I believe you mention it in your report
7 near the end.
8 A Oh. Well, I always put in the report when
9 the person produces a truthful outcome, definite
10 truthful outcome on the numerical score that the
11 confidence exceeds 90 percent.
12 Q That is based on someone getting a 6 and
13 above, your confidence is 90 percent?
14 A Yes, and that's a conservative statement. I
15 think the data would really testify saying 95 percent
16 but I say in excess of 90 percent.
17 Q And the 95 percent computer score was in
18 excess of 90 percent?
19 A Yes, that's correct. They are very
20 consistent.
21 Q Now, did you also do something else as a
22 further check on your score?
23 A Yes.
24 Q What was that?
25 A I was informed that the Government was having
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1 the charts independently evaluated by Dr. Barland. And
2 I believe I suggested to you that it would be helpful to
3 have another independent evaluation done by a highly
4 qualified examiner. And I suggested that you send them
5 to Dr. Honts for a separate, independent evaluation.
6 Q When you say independent, how is it
7 independent of your evaluation?
8 A Well, that he was given the charts and asked
9 to evaluate them and numerically score them to see what
10 he came up with.
11 Q That is the kind of blind scoring that we're
12 talking about that polygraphers do with each other's
13 exams?
14 A Yes. It's the kind of thing that is often
15 called quality control by the Government.
16 Q Let me show you Defendant's Exhibit U. What
17 is Defendant's Exhibit U?
18 A It appears to be it was titled, "Honts'
19 scoring of Galbreth."
20 MS. HIGGINS: Your Honor, excuse me,
21 objection. If Dr. Raskin is saying appears to be, then
22 perhaps the better witness on this exhibit would be Dr.
23 Honts.
24 MR. DANIELS: Can I lay a little bit of
25 foundation on this, Your Honor?
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1 BY MR. DANIELS:
2 Q Dr. Raskin, is it common in your field to
3 rely on blind scores that are sent to you by other
4 polygraph examiners?
5 A Yes.
6 Q And have you had Dr. Honts blind score your
7 tests before?
8 A Yes.
9 Q Have you blind scored his tests before?
10 A Yes, for many, many years we have done that
11 back and forth.
12 Q Have other polygraphers blind scored your
13 tests and you scored their tests?
14 A Yes.
15 Q Is this the kind of information you rely on
16 in forming a conclusion?
17 A Yes.
18 Q Does the result of Dr. Honts' blind scoring
19 assist you in the conclusions that you have reached here
20 today or confirmed in any fashion?
21 A Well, they certainly clearly confirm the
22 conclusions that I have already arrived at, yes.
23 Q What was the why is it that these
24 conclusions confirm your own conclusions, Dr. Raskin?
25 A Because they show a very similar score, plus
BETTY J. LANPHERE
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1 32.
2 Q Again, this is based on the numerical scoring
3 by visual observation of the differences between the
4 tracings?
5 A Yes. This is using the scoring program in
6 our computer system where you do a numerical scoring and
7 enter the numerical scores into a template that then
8 prints this kind of a report for the person who did it.
9 Q Did he also do a computer score?
10 A I believe he did, yes. That's what I was
11 informed today.
12 Q All right. You have not seen the results of
13 that?
14 A I haven't seen well, yes, I did actually.
15 I was shown the printout earlier today when we came in
16 or maybe it was last night when we met.
17 Q Was there anything in there that indicated
18 any disagreement in the computerized scores?
19 A It was exactly the same which is what it
20 should be because the computer is 100 percent reliable
21 unless it fails.
22 Q Dr. Raskin, I am going to move on a little
23 more quickly through this than we planned. Is there any
24 reason we need to get to the charts here at this point
25 to examine particular features to explain your
BETTY J. LANPHERE
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1 testimony?
2 A Well, I don't know other than if somebody
3 wanted to know what the charts actually show, what the
4 recordings are.
5 MR. DANIELS: Your Honor, would the Court
6 like to hear any
7 THE COURT: No, that is not necessary.
8 MR. DANIELS: All right.
9 BY MR. DANIELS:
10 Q Did you see any evidence of countermeasures
11 that were attempted or were employed in any fashion in
12 this test?
13 A No, I did not. Had I seen that, my report
14 would have reflected that.
15 Q Now, if you were to be permitted to testify
16 as an expert witness before the jury, is it your
17 intention to testify to the jury that it is your
18 personal opinion that Dr. Galbreth was telling the
19 truth?
20 A No.
21 Q What is it ultimately that your expertise
22 would have you testify to?
23 A I would testify as to the testing procedures
24 and what was done and what the basis for it and I would
25 testify to how they were evaluated and what the results
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1 showed. And that result would be that the numerical
2 score that he obtained is indicative of a truthful
3 polygraph test outcome with regard to these particular
4 questions. That is what the test shows. It's not my
5 personal opinion.
6 Q All right. You would not be testifying based
7 on what you personally believe that he is telling the
8 truth or not telling the truth?
9 A No, I don't think that would be appropriate.
10 That is for the trier of fact to determine. All I can
11 do is give them the information from the test.
12 MR. DANIELS: That's all I have on direct,
13 Your Honor.
14 THE COURT: We'll go ahead and take a short
15 break.
16 (WHEREUPON, a break was taken.)
17 MR. DANIELS: Your Honor, may I ask
18 indulgence of the Court for about 60 seconds? There is
19 one other matter that may be disproving a negative but I
20 just want to get on the record so the Government may get
21 a chance to respond if they wish.
22 THE COURT: All right.
23 BY MR. DANIELS:
24 Q Dr. Raskin, how many years have you had
25 experience in conducting polygraph tests and testifying
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162
1 in New Mexico?
2 A I first testified in New Mexico in 1974.
3 Q And how many times have you testified in New
4 Mexico since then?
5 A I would estimate 30 times at least.
6 Q Have you had a chance to observe the way
7 polygraph evidence works in the New Mexico court system?
8 A Yes.
9 Q Have you seen anything that indicates that
10 juries are bamboozled or confused or prejudiced from the
11 results of polygraph tests?
12 A No, on the contrary. I think juries exercise
13 their independent judgment and they are not overwhelmed.
14 Sometimes they are underwhelmed by the polygraph.
15 Q Are you crossexamined on the basis of your
16 opinion on the underlying science?
17 A Usually. Sometimes at great lengths.
18 Q Does the opponent occasionally bring in
19 opposing experts if there is a disagreement?
20 A Yes.
21 Q As your result in the New Mexico system is
22 there any reason to believe that this is treated any
23 differently than any other expert testimony by jurors?
24 A I have no evidence of that and, in fact, I
25 think the literature from all over the country indicates
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1 that jurors tend to treat this evidence the way they
2 would treat any evidence, carefully and cautiously.
3 MR. DANIELS: That's all I have, Your Honor,
4 thank you.
5 THE COURT: You may crossexamine.
6 CROSSEXAMINATION
7 BY MS. HIGGINS:
8 Q Dr. Raskin, on Defendant's U which is Dr.
9 Honts' independent scoring of the exam, Dr. Honts is
10 somebody that you work with even now?
11 A Well, we collaborate on various things. We
12 just finished writing a chapter for a book on evidence
13 from Hastings Law College. We talk about research. We
14 do work together of that sort as I do with academic
15 colleagues in other parts of the country. He is in
16 North Dakota and I am in Utah.
17 Q Is he yet another of your exstudents?
18 A Yes.
19 Q Did Dr. Honts let me back up here for just
20 a minute. Blind scoring, doesn't that mean that a
21 person rescoring the exam doesn't know anything about
22 the facts of the case?
23 A Not necessarily. Sometimes they are just
24 given a chart and told score it. Sometimes they might
25 be given more material. I know what I do when I'm asked
BETTY J. LANPHERE
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1 to do blind scoring.
2 Q Did Dr. Honts do a blind scoring of this test
3 meaning that he didn't know anything about the facts of
4 this case?
5 A You would have to ask Dr. Honts. I did not
6
7 Q You did not ask him to do this?
8 A No, I suggested to Mr. Daniels that he have
9 Dr. Honts do it. And he communicated and sent the
10 materials to Dr. Honts although I believe I did mail him
11 a computer disk when he asked for that, you know, with
12 the files on it and but it didn't have my report or
13 anything like that on it.
14 Q Prior to Dr. Honts doing this rescoring, had
15 you had any discussions with him or had you given him
16 any information about the facts of this case?
17 A I believe that after Mr. Daniels contacted
18 him or possibly before, I had perhaps a computer message
19 on E mail telling him that I thought Mr. Daniels might
20 be contacting him to do a blind interpretation or
21 independent interpretation of a test I had conducted in
22 the case and that is basically what I told him.
23 Q Did you give him any of the facts in this
24 case?
25 A No.
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1 Q In Defendant's Exhibit D, this is the
2 bibliography, not all of the articles listed in this
3 bibliography appeared in peer reviewed journals, did
4 they?
5 A I would have to look at it. I can't
6 remember. I think it is from a 1988 chapter that I
7 wrote if I recognized it. And it would have references
8 relative to the points that I wanted to make. I
9 believe, for example, one reference would be to the
10 Gallup survey report that was produced by the Gallup
11 organization if that's the right reference that I used
12 to document the source of the information about that in
13 the chapter that I wrote. That is not a peer review
14 thing. That is just a scientific survey.
15 Q So this bibliography is a mix as to where
16 these articles appear? Some may be in books? Some may
17 be actually in peer reviewed journals? Some not?
18 A Yes, it would depend upon the purpose and the
19 audience. Sometimes one even makes reference in
20 newspaper articles about things that are discussed in a
21 chapter.
22 Q I got a sense from Mr. Daniels' questions and
23 your answers about peer review that you talk about
24 degrees of peer review. Isn't the term "peer review"
25 actually a term of art that describes a very specific
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1 process? If one wishes to publish in a peer reviewed
2 journal, one must go through a rigorous and very
3 specific process in order to get one's material in that
4 journal?
5 A You've asked me two questions and the answer
6 to the latter part is yes. The answer to the former
7 part, the first part is that there are different levels
8 of peer review. Some people may apply only the narrow
9 definition that you used, but most of us prefer to talk
10 about peer review any time our work is reviewed by
11 somebody who a peer.
12 Q And when the Superior Court in Daubert talks
13 about scientific peer review, wouldn't it be more
14 accurate to say that that is a reference to the more
15 vigorous and rigorous scientific peer review needed to
16 get an article accepted by a peer review journal?
17 A You're asking me to speculate about what was
18 in the minds of the justices of the United States
19 Supreme Court and I think the decision speaks for
20 itself. And whatever discussion there is, one would
21 have to read through the entire opinion I suppose.
22 Q Rather than speculate, let me rephrase that.
23 The kind of review that occurs in the more rigorous
24 what I have described as the more rigorous peer review
25 involves having members of the relevant scientific
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1 community go over an article or a report or a study with
2 a finetooth comb looking, nitpicking if you will, for
3 all kinds of things and this is done in order that the
4 highest standards are met before such an article is
5 published; is that correct?
6 A Well, when it is in that context but there is
7 peer review, for example, of grants submitted where the
8 look with a finetooth comb is a little bit different
9 for a slightly different purpose. There is peer review
10 when you have a committee that is judging what should be
11 accepted for a program at a scientific meeting so I
12 suppose one could say, well, what the Superior Court had
13 in mind when they said peer review had to do with
14 scientific journals. And if that's what they meant,
15 then the definition or description you have offered
16 would be the one that applies.
17 Q All right, thank you. Now, in Defendant's E
18 and this is titled, "A Field Study of the Validity of
19 the Directed Lie Control Question," and the authors are
20 yourself and Dr. Honts, when I read this it appeared to
21 me what I thought was a combination exam. It included
22 both a directed lie and a probable lie control question.
23 That is correct, isn't it?
24 A That is correct, yes.
25 Q This appeared in the Journal of Police
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1 Science and Administration. That is not a scientific
2 peer review journal, is it?
3 A It goes out for peer reviews. It goes out to
4 experts in the field, and they provide reviews to the
5 editor and the editor then provides an editorial
6 decision and feedback to the authors.
7 Q Is this journal on par with, say, Nature or
8 Psychophysiology?
9 A Well, those are two journals I think if you
10 take the three that you have mentioned, this journal and
11 those two journals, you have three different kinds of
12 journals. Nature is a journal published in England and
13 it is more of a journal that deals with topics of
14 current interests that perhaps have not only scientific
15 but political implications. That is my impression of
16 that journal.
17 And Psychophysiology is a journal which is
18 extremely specialized and if you want to talk about
19 nitpicking I would say that us as psychophysiologists
20 can nitpick with the best of them. So there are
21 different kinds of journals with different kinds of
22 audiences. They all have peer review. I don't know
23 actually the process that Nature goes through but I have
24 seen stuff published in there that would never make it
25 into Psychophysiology because it doesn't have the
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1 methodological quality that Psychophysiology would
2 accept.
3 Q So I take it that your definition of peer
4 review goes all the way from acceptance in a journal
5 such as Psychophysiology all the way down to perhaps a
6 letter to the editor because that is another way of
7 getting information out to the public?
8 A No, I don't think that a letter to the editor
9 is peer review. The editor decides whether to publish
10 it. They don't sent those out for peer review unless it
11 is something that is very extensive. And a lot of
12 journals don't publish letters to the editor really.
13 Q In Defendant's Exhibit P, this is a letter to
14 Dr. Honts from Mr. Yankee.
15 A Dr. Yankee.
16 Q I'm sorry, Dr. Yankee. He is a Ph. D.?
17 A Yes.
18 Q Dr. Yankee refers to these agencies listed in
19 the letter as using DLCT. I assume that is the directed
20 lie control test?
21 A Yes.
22 Q For specific issue criminal testing. What is
23 that? What is specific issue criminal testing?
24 A Well, he refers to two things as I recall. I
25 don't have the letter in front of me but he talks about
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1 screening tests and specific issue testing. And
2 specific issue criminal testing would be the type of
3 testing that was done in this particular case.
4 Q All right.
5 A Where there is an issue in dispute in a
6 criminal case.
7 Q Do you see anything in that letter that
8 indicates that the results are routinely used in court
9 in criminal cases?
10 A That wasn't the issue of this letter and it
11 was not part of the request.
12 Q Now, there was also some testimony about not
13 only the fact that these federal agencies use the
14 directed lie control test but the idea that the FBI
15 specifically has a fair number of examiners that they
16 employ; is that correct?
17 A Yes, I believe Mr. Murphy's letter and he
18 runs that program as I recall stated 52 examiners if I
19 have the number correct.
20 Q And you talk about a case in California where
21 Mr. Murphy testified. It is true, isn't it, that the
22 FBI agents would come to testify in cases where they had
23 done the tests?
24 A I'm not sure what the question is.
25 Q There was some discussion between you and Mr.
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1 Daniels with 52 examiners surely that a spare one would
2 come to testify. In this case the FBI has not conducted
3 a polygraph test; is that true?
4 A I am not aware of one.
5 Q You are the polygrapher in this case?
6 A As far as I know I was the only polygraph
7 examiner.
8 Q In this California case where Mr. Murphy
9 testified I believe you said he tested the suspect nine
10 times?
11 A That's correct.
12 Q Is California one of the states that allows
13 polygraph results at trial?
14 A That was a federal case.
15 Q All right. You think that the Ninth Circuit
16 California is in the Ninth Circuit. Do you know
17 whether the Ninth Circuit allows the results of
18 A You mean the Ninth Circuit and not
19 California?
20 Q Yes.
21 A I'm sorry. I misunderstood you.
22 Q You said it was a federal case in California?
23 A Yes. It was the Federal Southern District of
24 California.
25 Q Do you know anything about how the results
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1 were allowed in that case?
2 A Yes. I am very intimately familiar with
3 that. I was a witness in that hearing, also.
4 Q What was the context of the results being
5 allowed?
6 A Well, the Government asked made a motion
7 to allow to present the polygraph result and their
8 rationale for doing so was to establish the context in
9 which the defendant allegedly confessed to an act of
10 espionage. And they presented it in the form that they
11 wanted to present the fact that he was informed that he
12 failed the polygraph to show the circumstance that led
13 to his having made this reported confession. But that
14 is not what they testified to at trial. They went way
15 beyond that and that is what caused the case to be
16 reversed.
17 Q Oh, yes, I can understand that.
18 A Yes.
19 Q All right. Now, with respect to the FBI and
20 all of these federal agencies using polygraph tests as
21 investigative tools, isn't it also true that in
22 investigating criminal cases police officers from
23 whatever agencies use all kinds of investigative tools?
24 A I would hope so.
25 Q And that many of the tools that they use to
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1 further the investigation may have no scientific
2 validity or reliability whatever? For example, using
3 psychics?
4 A I guess some law enforcement agencies use
5 psychics. Why they use federal or state money on that
6 is beyond me but they do a lot of strange things.
7 Q So quite a few techniques might fall into the
8 rubric of investigative tool?
9 A I guess. I don't think you would find most
10 wellqualified law enforcement people saying that
11 psychics are a good investigative tool, but there are
12 people who do that.
13 Q And when FBI polygraphers polygraph people,
14 don't they generally polygraph suspects?
15 A No, they often also polygraph informants and
16 witnesses. They do both.
17 Q But they also do suspects?
18 A Well, they do whatever they feel is important
19 for them to assist their case. I hope that's what they
20 do.
21 Q So that if the results of the polygraph test
22 become admissible, then they may become admissible
23 against suspects?
24 A Against suspects?
25 Q Yes. If the suspect were to test deceptive?
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1 A Would the Government then be allowed to use
2 that in their case against that person if they
3 prosecuted them?
4 Q If the results were found admissible?
5 A I suppose that could happen although even in
6 places where they have been admissible that has not
7 generally happened. And as far as I know in federal
8 courts other than this use we talked about for the
9 supposed purpose of showing the circumstances of the
10 confession, I am not aware of the Government using
11 polygraphs as a prosecution tool against a defendant
12 when that defendant had taken a polygraph except by
13 stipulation where that has happened.
14 I know in the Eighth Circuit in the Oliver
15 case that is what happened there. And that has happened
16 in other cases so that the Government has used it by
17 stipulation against defendants. But in New Mexico where
18 it would be possible under the rules for the law
19 enforcement to use them for prosecutorial purposes, it
20 rarely happens.
21 Q In your experience?
22 A Well, to my knowledge in New Mexico.
23 Q Now, I am going to slightly change the focus
24 here. You would agree that the relevant scientific
25 field in this inquiry is the field of psychophysiology?
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1 A Yes.
2 Q And that the area of polygraphy is kind of a
3 subset or one narrow area of interest in
4 psychophysiology?
5 A Yes.
6 Q Would you also agree that there are very few
7 polygraphers like yourself or Dr. Honts or Dr. Barland
8 in that most polygraphers are largely untrained in
9 either psychology or psychophysiology?
10 A No, I wouldn't agree with that. Certainly
11 the large majority don't have the kind of training that
12 Dr. Barland, Dr. Honts and myself have, but they are not
13 untrained. If they have gone through the course where
14 Dr. Barland is located and where Dr. Barland teaches as
15 I understand in that course, they would have had a
16 considerable amount of training in psychology and
17 psychophysiology.
18 If they attend the Canadian Police College
19 where Dr. Honts and I regularly teach, they would have
20 an extensive amount of training in that Dr. Honts
21 teaches those subjects to those examiners. And every
22 private polygraph school in the United States that is
23 accredited by the American Polygraph Association must
24 include a substantial portion of their formal training
25 in psychology and psychophysiology.
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1 Q Approximately how many hours would that be in
2 psychology or psychophysiology?
3 A I can't tell you exactly what it would be. I
4 think I just have to guess, and I would think Dr.
5 Barland would be better qualified to answer that
6 question, but in psychology and psychophysiology and the
7 underlying basis of chart interpretation and related
8 matters, I spend three full days.
9 Dr. Honts spends, I think, at least three
10 full days sometimes four days teaching those materials
11 so that is seven days. Dr. Shearer, who is a
12 psychologist, a Canadian psychologist, I believe spends
13 somewhere between three and five days teaching
14 additional material about psychological factors. So
15 what is that? Seven and five, twelve full days. So
16 that's two and a half weeks almost.
17 Q Why are you adding those?
18 A Because I am trying to keep track.
19 Q I'm sorry. I thought that we were talking
20 about, for example, one training session?
21 A Well, this is one course.
22 Q Oh, so all of you show up? Okay, I
23 understand.
24 A Well, they bring experts from all over North
25 America.
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1 Q Okay.
2 A They bring in the best people that they can
3 find. That's why I believe that's the best training
4 program of its sort in the world.
5 Q We were up to 12 days.
6 A 12 days and you may have other material. I
7 know they cover other subjects and they do reading
8 besides, but I would say it is at least 12 full days,
9 two and a half weeks. It is pretty intensive. They
10 take examinations and so on. It is a very rigorous
11 course.
12 Q Even for the states that have licensing
13 requirements is there any requirement for continuing
14 education?
15 A Yes, I believe I testified to that. State of
16 New Mexico requires I think it is 20 hours each year.
17 State of Utah requires 30 hours per year of continuing
18 education in the polygraph field.
19 Q Do you know offhand let me just ask you,
20 Arizona does not require a licensing of polygraphers,
21 does it?
22 A They had a license for many years and I think
23 about two years ago or three years ago the Legislature
24 in its wisdom decided to sunset that law and go back to
25 the days of no regulation which is I think unfortunate.
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1 Q Do you know how many states in the United
2 States require licensing and continuing education for
3 polygraphers?
4 A Well, as far as license I believe it is
5 somewhere in excess of 20, but I don't keep a running
6 count. I know that when I am asked to do a test out of
7 state, I always check to see what state if the state
8 requires a license so I can advise whether I can do it.
9 But I don't know as far as the continuing education
10 requirement is concerned, it is not something that I
11 have looked at because it is only relevant to me where I
12 am licensed.
13 Q And, in fact, there is no national
14 standardization or standardized license or requirement
15 for continuing education?
16 A There is no national standard because as you
17 well know licensing of that sort is something that is
18 left to the states. And so states do it in the
19 patchwork way that they do everything else.
20 Q And may very well have different
21 requirements, different criteria?
22 A Yes, and some have none. California had a
23 licensing law and then they sunsetted it because
24 considerations of money and administration seem to
25 occupy their attention more than making sure that the
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1 public receives good service. I think that is very
2 unfortunate.
3 Q Now, turning to the test itself, the
4 polygraph machine is actually a recording device in
5 essence?
6 A It is an electronic hopefully electronic
7 measurement and recording device.
8 Q All right. And what it does is it measures
9 and records physiological responses that are known to be
10 controlled by the autonomic nervous system; is this
11 correct?
12 A Well, this particular version, the one we're
13 talking about here for polygraph tests. If you're
14 talking about polygraphs in general, they might record
15 many other things.
16 Q In this case it was the Stoelting
17 A Computerized polygraph system.
18 Q And that is what this one measures?
19 A It measures the breathing. It measures the
20 skin conductance and cardiovascular plethysmograph as
21 well as the events.
22 Q The beginning of a question, the end of a
23 question, the beginning of a response, the end of a
24 response?
25 A Well, the beginning of the answer. The
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1 examiner presses the space bar as he begins to speak the
2 question and as he ends the question and just when the
3 subject answers.
4 Q And various stimuli can cause one of these
5 sympathetic nervous system activations or responses?
6 This is also true? This is something that is wellknown
7 in psychophysiology?
8 A Oh, yes. There are many causes, external
9 stimuli as well as internal stimuli. Thoughts can cause
10 them.
11 Q And emotions can cause them?
12 A Yes.
13 Q And, in fact, the machine can pick up
14 responses if there is physical movement?
15 A Yes.
16 Q But a polygraph machine cannot say what kind
17 of stimulus caused a particular response which is
18 measured and recorded on a machine, can it?
19 A Yes, it simply records the body activity.
20 Q And there are no specific physiological
21 changes that are associated with any human emotion or
22 cognitive or motor activity; isn't that true?
23 A Well, I am not I think I understand what
24 your question is and I if could slightly rephrase it?
25 Q Let me rephrase it so you don't have to kind
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1 of guess what I am saying. Physiological changes that
2 occur in the body can occur for many reasons you have
3 just said that. And this machine can't tell us why a
4 particular physiological response has occurred; is that
5 correct?
6 A That's correct.
7 Q And as far as there being a specific
8 physiological response that is related to lying or
9 deception, that hasn't been identified yet either, has
10 it?
11 A Well, that's why I have to be careful how I
12 answer. What has not been identified is a specific
13 pattern of response that is unique to deception. There
14 are reactions that are clearly associated with
15 deception, but they also may occur for other reasons.
16 Q All right. And all the machine can tell you
17 is that a response has occurred. There has been a
18 response, but as far as what caused it, the machine
19 can't tell you that?
20 A That's correct. That's the job of the
21 scientist or the examiner to make that interpretation.
22 Q And, in fact, the interpretation brings us to
23 the second part of the test, which is this control
24 question test or at least this is one of the ways to try
25 and make inferences about what is causing that reaction;
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1 would that be accurate?
2 A Yes, and that would include, of course, the
3 pretest interview and all the procedures that ultimately
4 result in a set of recordings such as we have here
5 today.
6 Q Now, you have testified that the directed lie
7 test is a variant of the I guess probable lie control
8 question test?
9 A Well, it is a type of control question test.
10 Q So the probable lie control question test
11 would be another variant?
12 A Yes, it would be the precursor.
13 Q And the theory or hypothesis which underlies
14 a directed lie test is that physiological responses to
15 the relevant questions and the directed lie questions
16 can be compared and that a guilty person will be more
17 concerned with relevant questions and an innocent person
18 will be more concerned with directed lie questions?
19 A Correct.
20 Q Now, there is a large difference, however,
21 between the probable lie control test and the directed
22 lie control test in that in the probable lie test a
23 subject is actually told to tell the truth to all the
24 questions, and there is some kind of attempt to arouse a
25 response by telling the person that? Have I said that
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1 correctly?
2 A Well, yes, and I might amplify a little bit
3 to make it clearer. This attempt to arouse the subject
4 is done to increase their relative reactions either to
5 the relevance if they are guilty or to the controls if
6 they are telling the truth. And the way to do it with
7 the controls is what I would call a manipulation and
8 maneuver to try to put them on the defensive about those
9 questions and arouse a concern, which might result in a
10 larger reaction to those questions when a person is
11 truthful on the relevant questions.
12 Q And so what one is trying to do in a probable
13 lie test is to raise a concern to all the questions, but
14 again the theory is that an innocent person will be more
15 concerned about the control questions and a guilty
16 person will be more concerned about the relevant
17 questions?
18 A In general that is true, yes.
19 Q With a directed lie test, in fact, the
20 subject is told that the control questions are control
21 questions?
22 A Well, that term is never used and should
23 never be used.
24 Q But the person or the subject rather is told
25 that well, the scenario is set for them. They are
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1 told that these questions which you talk about with them
2 beforehand, they will tell you whether or not it is true
3 and then you will ask them to lie about it. So the
4 questions are identified in that respect; isn't that
5 true?
6 A Well, they don't tell you whether or not it
7 is true. They don't elicit that. I just tell them to
8 answer no and that will be a lie.
9 Q Because the control questions in your
10 directed lie test are ones that you use over and over?
11 A Yes, because you don't have to guess as to
12 what they might be lying about. Everybody has made a
13 mistake. Only somebody that is not on this planet would
14 be able to say that they have never made a mistake.
15 Q Okay.
16 A So you know they are going to lie when they
17 answer no and they know it's a lie.
18 Q But clearly the subject knows that on those
19 questions that you expect them to be deceptive and
20 expect the test to show that they are deceptive on those
21 questions?
22 A Yes, that's correct.
23 Q So one of the differences between those two
24 tests is that the general apprehension that is aroused
25 on a control or probable lie test is not there on a
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1 directed lie test?
2 A I am not sure what you mean by general
3 apprehension. There is typically general apprehension
4 throughout the entire examination because subjects are
5 very apprehensive about the whole procedure.
6 Q And that is certainly your hypothesis, but if
7 a subject is not told whether any particular questions
8 are that they are expected to be deceptive to, they
9 are not told that in one test, but they are told that in
10 another test, doesn't common sense tell you that there
11 would be a lessening amount of tension with respect to
12 their response on a directed lie?
13 A You would think that, but that is not what
14 the data show. That is why I said earlier in my
15 testimony, I was a little reluctant to try these out
16 because I didn't think they would be provocative enough
17 to show the kind of response in truthful subjects to
18 indicate a truthful outcome. And it does seem that they
19 are basically trivial, but, in fact, when the test is
20 performed properly, all the scientific evidence shows
21 they are quite effective and the apprehension that you
22 talked about being lessened isn't really what happens.
23 Q Well, in this field study of the validity of
24 the directed lie and control question there is a
25 statement and the statement is, "The signal value of the
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1 directed lie control question is generated and
2 maintained by explicit manipulations by the examiner
3 during the examination."
4 A On the directed lie control question?
5 Q Yes.
6 A By the instructions you give the subject,
7 yes.
8 Q You tell them what the directed lie question
9 is?
10 A Yes, and we tell them to lie to it and we
11 tell them we need it for interpretation of the test just
12 like we tell them on the number test.
13 Q And is that what is meant by examiner
14 manipulation?
15 A Well, it's an instruction to the subject, but
16 it is not a misleading of the subject in the sense I
17 have used manipulation with regard to the probable lie
18 control question. That's more manipulative. This is
19 manipulation in the sense of an experimental
20 manipulation, a protocol in that sense.
21 Q Isn't it a fundamentally different kind of
22 response invited in the directed lie question? And let
23 me give you my hypothesis on that.
24 A Okay.
25 Q In a probable lie test a subject is just
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1 told, "Don't lie to any of these." In a directed lie
2 test, in a pretest interview the subject is told, "I
3 know when you answer this question it is a lie, and I
4 want you to lie to that."
5 And let me just make sure that I understand
6 this, too. If the question is, "Before 1985 did you
7 ever make a mistake?", that's the directed lie question,
8 and if the subject is told to lie to that and say no,
9 here is where my question comes in, haven't you just
10 added an element to the directed lie question that is
11 not present on a probable lie question?
12 The element being the subject has to sit
13 there and think, "First, did I ever make a mistake
14 before 1985? Yes, but I am supposed to say no." And so
15 you added some mental activity on the directed lie
16 question that is not present on the probable lie
17 question?
18 A No, I don't believe so.
19 Q Why not?
20 A Probable lie question invites a lot more
21 mental activity. The directed lie is very simple for
22 the subject. You know you have done these things, think
23 of a time you did it. Answer no and that will be a lie.
24 So it is a straightforward task, but it does require
25 mental activity.
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1 The probable lie question is not quite the
2 way you stated it in that you don't simply say, just
3 answer all the questions truthfully or don't lie to any
4 questions. You have to go through a real manipulation.
5 Maneuvering the subject as I described in my testimony
6 earlier. You have to set that subject up to believe
7 that this is an important question to which the subject
8 should be truthful because if the answer is untruthful,
9 the implication is they will fail the test.
10 Furthermore, you deliberately use a very
11 vague question that covers a long period of time in
12 their prior life to which they have to search their
13 memories to determine, one, have I done anything like
14 that?
15 Two, is that the kind of thing he is talking
16 about?
17 And, three, does that have implications for
18 my character, my honesty, my proclivity to do, you know,
19 criminal behavior?
20 That is a very complex task. Much more
21 complex than a directed lie. And that's why when I
22 first encountered this, I thought the directed lie was
23 an interesting idea but I did not expect it to be as
24 useful as it turns out to be. In fact, it is more
25 useful than the probable lie and simpler to use.
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1 Q Would you agree with the statement that the
2 directed lie test is more susceptible to the use of
3 countermeasures?
4 A No.
5 Q Why not?
6 A Because anybody who is sophisticated enough
7 to use a countermeasure will know that there are control
8 questions, comparison questions. And they will know
9 that just as the directed lie is used for a comparison
10 question, the probable lie is used for a comparison
11 question. And if they are going to practice a
12 countermeasure to enhance their reaction to the control
13 or comparison question, they can just as easily do it to
14 the probable lie as to the directed lie.
15 And, in fact, as I have testified earlier
16 today our research has shown that 60 percent of
17 laboratory subjects in a simple little mock crime
18 scenario attempt to perform countermeasures during their
19 polygraph exams when they are guilty. So that is an
20 awful lot of spontaneous attempts at countermeasures.
21 And it has nothing do with the directed lie, and I am
22 talking about all probable lie tests.
23 Q On that study was it a probable lie or a
24 directed lie test that was used?
25 A Probable lies.
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1 Q And, in fact, there are no studies done on
2 the use of countermeasures to the directed lie tests,
3 are there? No published studies?
4 A Well, you would have to ask Dr. Barland if
5 there are some unpublished ones because they do a lot of
6 unclassified research on things they don't publish. I
7 suspect they may have done something like that so I
8 can't say categorically there are none.
9 Q Are you aware of any published studies?
10 A I don't I can't offhand think of any
11 studies where that has been done. But if such a study
12 were to be done, I have no reason to expect that it
13 would turn out any differently from the countermeasures
14 studies with probable lie questions. The principles and
15 the procedures would be the same.
16 Q Now, since the determination of truthfulness
17 and deception on these control question tests depends on
18 the formulation of the questions actually it depends
19 on the comparison between responses to the questions?
20 A Yes, among the reactions to the relevants as
21 compared to the comparison or control questions.
22 Q Isn't it very important then that both
23 questions both the control and the relevant question
24 be comparable in terms of being able to elicit a similar
25 response? How can you compare something that there is a
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1 very small rate of response on one end and very high on
2 the other end? How do you compare something if you
3 can't say that they are comparable to begin with?
4 A I am not sure I understand your question but
5 I'll try.
6 Q Let me back up then. You have agreed that
7 the scoring here or the determination of whether
8 somebody is truthful or deceptive is based on a
9 comparison of responses on a control question and a
10 relevant question?
11 A That's correct.
12 Q Does the control question function like a
13 scientific control?
14 A No. This is not a scientific study. It is a
15 procedure, a diagnostic procedure just as taking an
16 electrocardiogram on a subject to see where they have a
17 heart malfunction. It's not a scientific study. It is
18 a diagnostic procedure.
19 Q Is it your opinion then that the control
20 question and the relevant questions do not have to be
21 comparable in terms of the responses they elicit?
22 A That's where I am having trouble. I don't
23 know what you mean by comparable. Perhaps if I explain,
24 it will clarify. This is an empirical question. This
25 is a question of whether or not if you perform this
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1 diagnostic procedure based upon underlying scientific
2 principles and research, can you differentiate between
3 people who are telling the truth and people who are
4 engaging on deception on the relevant questions.
5 And in order to do that you must have
6 questions against which to compare the relevant
7 questions. And if you do the studies and do them
8 scientifically and you apply these scientific
9 principles, do you actually achieve a reasonable degree
10 of success in identifying the truthful and in
11 identifying the deceptive. And if you do, you have the
12 answer. If you don't, then you might want to know why
13 doesn't this work.
14 Q Well, now, the questions that are used in
15 studies may not be the same questions that are asked to
16 a person in a particular exam because, for example,
17 relevant questions are not standardized questions, are
18 they?
19 A That is correct.
20 Q They have to be formulated in each case
21 depending on the facts in the case and depending on the
22 subject?
23 A That's right. So your statement needs to be
24 modified to say questions that are used in laboratory
25 mock crime studies are standardized but questions used
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1 in scientifically conducted field studies with actual
2 cases are characterized in exactly the way you just
3 stated. Every question, relevant question has to be
4 tailored to the facts of the case and the matters under
5 dispute. And the studies that have been done show that
6 under those circumstances, these techniques work very
7 well indeed.
8 Q But my question, Dr. Raskin, I don't think
9 has been answered. On a polygraph exam in order to
10 score it, in order to say whether somebody is a plus 6
11 or minus 6 or plus 29 or 0, there is a comparison going
12 on between a relevant and a control question?
13 A That's correct.
14 Q If you use a control question that has little
15 interest for the subject and may not and let me back
16 up for a minute. What is being compared are these peaks
17 and valleys that are being recorded by the polygraph
18 machine; isn't that correct?
19 A Well, portions of them and particular
20 features of those wiggly lines.
21 Q And they are actually measured when you do a
22 numerical scoring? You don't eyeball it and say, "It
23 looks three times bigger than the other question or
24 response that I am looking at."?
25 A Well, you actually do that with the
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1 respiration tracings. You don't measure them when you
2 do numerical scoring. You have to look at them and
3 access their characteristics and determine by looking at
4 the entire tracing whether this is a noticeable reaction
5 or not. That's a judgment that you have to make based
6 upon the rules and your experience.
7 You don't take a ruler out and say, "Well,
8 this is three times that." You do that with the
9 electrodermal or galvanic skin response. You measure
10 the amplitudes because that's simple to do and that's
11 the major feature it is used for.
12 Q All right.
13 A And in the cardio response you look at
14 changes not only on how much it rises but how long that
15 lasts. And these are not precisely measured but are
16 judged against what is present in the entire tracing.
17 Q So if you used a control question that really
18 didn't have much effect on a particular subject relative
19 to the relevant question and then you measure the
20 tracings and the tracings are relatively flat or not
21 very exciting to the control question but more exciting
22 to the relevant question, you run the risk then of
23 scoring a person who is truthful as deceptive?
24 A That is correct. And that is the risk so
25 that's the problem with the relevantirrelevant test.
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1 You have identified the characteristics of the
2 relevantirrelevant test. Virtually everyone fails.
3 Q But it is also the difficulty in formulating
4 the control and the relevant questions for this test,
5 isn't it? That's what I mean by the need for the
6 questions to be comparable in the response that they
7 elicit.
8 A Well, comparable is perhaps what is causing
9 us the problem. They have the potential for producing a
10 differential reaction depending upon whether the person
11 is truthful or deceptive to the relevant questions.
12 That is the key concept, the potential.
13 Q And it is a potential because of other
14 variables such as whatever a subject brings to the
15 examination?
16 A Of course. Just as any medical procedure has
17 the same inherent problems.
18 Q Now, I believe you just told me that this
19 polygraph exam, for example, in this case is not a
20 scientific test so the control question does not
21 function as a scientific control; is that right?
22 A Well, I want to clarify. It is a
23 scientifically based test but it is not a scientific
24 experiment. That's the term. And there is a major
25 difference in those two words. It is a scientifically
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1 developed and administered and interpreted test to
2 diagnose truth and deception based upon an extensive
3 body of literature.
4 But this examination in and of itself is not
5 a scientific experiment. The term "control" which is
6 used in polygraph tests is a misnomer. It should not be
7 called a control question because it implies that it is
8 part of some sort of a scientific experiment. That is
9 why I have frequently used the term "comparison"
10 question. In that sense it provides a comparison for
11 diagnostic purposes.
12 Just as to clarify that suppose you go in for
13 a medical examination and your physician wants to
14 determine what your heart condition is. And the
15 physician takes your blood pressure and your heart rate
16 while you have been resting. And then has you do a
17 stairstepping exercise to activate your system and then
18 repeats that procedure. Then that activated condition
19 is compared to the resting condition.
20 That is not a scientific experiment, but it
21 is an important comparison derived from medical science
22 and the knowledge of how the body works and how these
23 responses occur in a healthy and in a defective heart.
24 Q So there is no control on this polygraph exam
25 to show that the results that it worked?
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1 A Again, to avoid confusion any diagnostic
2 procedure is an application of scientifically derived
3 procedures based on scientific principles for the
4 purpose of diagnosing a specific individual with regard
5 to a specific question at issue, heart disease or
6 deception. In that sense no application of a diagnostic
7 procedure is a scientific experiment.
8 It is simply a way of applying what we know
9 to try to make a diagnosis. We never know with absolute
10 certainty that a diagnostic procedure is correct in the
11 particular case. We simply know based upon science that
12 when we do this, we know how often it will be correct
13 and we assume that this is one of the correct ones if it
14 is usually correct.
15 Otherwise, we don't do it. So we wouldn't do
16 a polygraph if we didn't have a scientific basis for
17 saying the probability that this result is correct
18 exceeds 90 percent. Just as your physician would not
19 give you an EKG and make a conclusion about your heart
20 unless there was a substantial body of medical
21 scientific evidence that that diagnostic procedure is
22 correct most of the time. They make mistakes.
23 Polygraph people make mistakes.
24 People walk out of the office and drop dead
25 after the physician has said, there is nothing wrong
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1 with your heart, but that doesn't mean it is not a
2 scientific procedure.
3 Q I take it that would not be true for
4 something like a blood test where somebody wanted to
5 type blood? There aren't medical diagnostic tests where
6 there are controls and you do get an answer?
7 A The principles are exactly the same. It is
8 true for any medical test. It is true for my forensic
9 test. It is even true for DNA tests that some people
10 think are infallible. That the procedure may be based
11 upon sound science and it may be correct a lot of the
12 time or virtually all the time, but the potential for
13 error in any kind of a procedure is always there and
14 each type of test should have a reasonably
15 wellestablished error rate so you know how much
16 confidence you know to attach to the result. This is no
17 different than any of those things. There are no silver
18 bullets and magic in medicine or in polygraphy.
19 Q What about the idea that the scientific
20 method also requires reproducibility of results? You
21 told us that there is no control so that we know that
22 this test works or does not work?
23 MR. DANIELS: I am going to respond to that
24 as a mischaracterization of a frequently explained
25 answer.
BETTY J. LANPHERE
Dr. Raskin's testimony continued:
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