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.)


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 

                       BETTY J. LANPHERE                     


 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.  

                       BETTY J. LANPHERE                     


 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.


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.

                       BETTY J. LANPHERE                     


 1               THE COURT:  Thank you.


 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 

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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?

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.)

                       BETTY J. LANPHERE                     


 1               MS. HIGGINS:  No objection.

 2               THE COURT:  It shall be admitted.

 3              (WHEREUPON, Defendant's Exhibit E

 4               admitted into evidence.)


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.)


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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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.)


                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.)


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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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?

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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. 

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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?

                       BETTY J. LANPHERE                     


 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.)


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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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?

                       BETTY J. LANPHERE                     


 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.)


24         Q     We have now covered whether the application 

25    of the psychophysiological techniques to the polygraph 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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?

                       BETTY J. LANPHERE                     


 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.  

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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?

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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.  


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.

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.  


                       BETTY J. LANPHERE                     


 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.)


25         Q     How many relevant questions did you have?

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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.)


                       BETTY J. LANPHERE                     


 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                     


 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?

                       BETTY J. LANPHERE                     


 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?

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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?

                       BETTY J. LANPHERE                     



 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                     


 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                     


 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.  


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 

                       BETTY J. LANPHERE                     


 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.


24         Q     Dr. Raskin, how many years have you had 

25    experience in conducting polygraph tests and testifying 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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


 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                     


 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.

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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. 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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?

                       BETTY J. LANPHERE                     


 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?

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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.  

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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; 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.  

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.  

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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?

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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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