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1 THE COURT: Sustained.
2 BY MS. HIGGINS:
3 Q With respect to reproducibility of results
4 would it be possible for this test to be given multiple
5 times and the same results achieved more than three
6 times by different examiners?
7 A What is possible and what is achievable are
8 different things because unlike a procedure such as a
9 blood test to which you referred where the taking of the
10 blood sample, say, this week and next week and so on is
11 not affected by having taken a sample the previous week
12 unless you took too much of the person's blood. The
13 polygraph test, the mere administration of it and the
14 presentation of the results to the subject, can affect
15 the subject in ways that could alter the effectiveness
16 of a future test.
17 Furthermore, the procedure is very
18 complicated and the skill of the examiner can play a
19 role and the demeanor of the examiner can play a role
20 and the purposes of the examination can play a role and
21 what the subject brings with him or her to the
22 examination room as you pointed out can play a role such
23 that if they are not treated in the same way, if the
24 procedures are not done carefully and properly, unlike
25 the drawing of blood which is a simple thing; you either
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1 get it into the vial or you don't, then one test can
2 have the potential of affecting a future test.
3 However, there is one study in the literature
4 that I know of that was conducted with funding from the
5 federal government which showed that a retest by a
6 another examiner on the same issues at a future time
7 produced essentially the same results as the first test
8 but there was a very careful attempt to keep the
9 conditions similar and it was a simulation. Not a real
10 live thing where people make interpretations as to why
11 they are having to do this again and how they are going
12 to be treated and so on.
13 Q On this study that you were just talking
14 about on the subsequent test were the same relevant
15 questions, the same control questions used?
16 A I believe so if my memory serves me
17 correctly.
18 Q But what you have just described is a test
19 that because of a number of variables really cannot be
20 reproduced in exactly the same way accurately time after
21 time after time?
22 A You said a number of things. Can it be
23 reproduced in the same way, I didn't say that. I just
24 say that there are potentials present in that that are
25 not present in blood tests. That does not mean it can't
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1 be reproduced but one has to make a very serious attempt
2 to keep the conditions the same as much as possible.
3 Under those circumstances the likelihood of producing a
4 similar result is quite high.
5 On the other hand unlike something like
6 taking blood, there are processes known as habituation
7 that occur and over time and this is a
8 wellestablished phenomenon in psychophysiology that if
9 you keep repeating the procedure time and time and time
10 again, the reactivity and therefore the results tend to
11 get weaker.
12 Q In other words some of those lines might go
13 flatter? There would be less to compare?
14 A That would be the general trend. It is not
15 necessarily the case but that is a likely thing to
16 happen. So that's why if I ran chart 4, chart 5, chart
17 6, chart 7, chart 10 on Mr. Galbreth and asked him the
18 same questions over and over and over again, in the long
19 run for most subjects it would be a diminution of
20 reactivity and the later charts would become less useful
21 and the scientific evidence shows that's what happens.
22 Q You may have said this and I missed it, but
23 what peer review research validates the use of the
24 directed lie test?
25 A Well, there is the paper that Dr. Honts and I
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1 published in the Journal of Police Science and
2 Administration. There is the paper that Dr. Honts
3 published in I always get confused on the title of
4 that journal. The one published by the American
5 Psychological Society, Current Directions in
6 Psychological Science, which was invited by the editor
7 and very thoroughly reviewed. And I believe Dr. Honts
8 made some revisions in response to the reviews.
9 Q Is that journal considered a peer review
10 journal?
11 A That is a very high class journal.
12 Q But is it a peer review journal?
13 A Certainly. It is published by the premier
14 scientific psychological society in the world.
15 Q And that is the association
16 A The American Psychological Society. Last
17 count I had they had in excess of 16,000 members and
18 these are people with very strong scientific
19 credentials.
20 Q Now, with respect to formulating relevant
21 questions, in order to generate the kind of response
22 that can be measured and compared accurately, isn't it
23 true that you want to make sure that the meanings of
24 words are clear?
25 A Certainly.
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1 Q So that there is no ambiguity?
2 A It's critical.
3 Q Is it also true that in framing relevant
4 questions, you should try to make them as simple as
5 possible?
6 A Well, you want them simple, but you cannot
7 sacrifice probative value for simplicity.
8 Q Do you also want them to be as concrete as
9 possible? For example, to be concerned with actions
10 rather than thought?
11 A Depends upon what the issue of the test is.
12 If the issue of the test is did you shoot so and so,
13 that is very simple. You asked did you shoot so and so.
14 Everybody knows what that means. But if the issue of
15 the examination is not the factual issues of whether or
16 not somebody did something but what their motives were,
17 why they did it or why they didn't do something else,
18 then you have to devise questions that go to somewhat
19 less concrete things, I think as you used the term, and
20 go more to what a person was thinking about at the time,
21 why they did or didn't do something, what they knew or
22 didn't know, what they understood or didn't understand.
23 And those are tests that require a great deal
24 of care to construct and a great deal of skill. And
25 they must be done very carefully and they often require
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1 extensive discussion with the subject to clarify the
2 meaning of the questions and to get them down to the
3 most concrete references in terms of what the person was
4 doing or not doing at the time.
5 Q In asking somebody in trying to frame a
6 question where you ask the subject what their intent was
7 or what their knowledge was at a particular time,
8 doesn't that give them room to rationalize or just give
9 them some kind of wiggle room in responding to that kind
10 of question?
11 A It could if it's not done properly. But if
12 it's done properly, you get them very clearly pinned
13 down to very specific positions based upon an extensive
14 and detailed discussion of the meaning of this and what
15 their position is on it and what the adversarial
16 position is on it and make sure that it is very clearly
17 understood. If you do that, there is no wiggle room.
18 Q In this particular case there were four
19 relevant questions. Do you have a copy of your
20 questions? Let me get my copy.
21 A I have it before me.
22 Q And this is Defendant's C on page 3. The
23 three directed lie or directed lie control questions,
24 D1 and D2 and D3, are there basically in the middle
25 of the page. Would you agree that each of those is a
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1 relatively short simple not compound question?
2 A They are relatively short. The first one is
3 shorter than the other two. The second one is a
4 compound question. And the third one is not compound.
5 Q And without even reading the questions you
6 can look at relevant questions 1, 2, 3, and 4 and just
7 tell from the typeface or the print on that page that
8 these are comparably longer; would that be correct?
9 A Certainly, they have to be.
10 Q And that several of the questions deal with
11 what the subject's understanding was or what his
12 knowledge was; is that correct?
13 A Yes.
14 Q So that several of these questions are
15 dealing with the more, as you say, more complex area of
16 knowledge and intent.
17 A It doesn't use the word "intent."
18 Q I'm sorry?
19 A The word "intent" does not appear.
20 Q But perhaps can be inferred in these
21 questions?
22 A You can infer all kinds of things but that
23 doesn't mean that's embodied in the question.
24 Q Now, moving on to another area, you have
25 talked at some length about accuracy of results in
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1 polygraph tests. In fact, you just told us why this is
2 not an experiment, why there is no control in each
3 polygraph exam. And apparently the reason is that we
4 can look at the results in this and compare with the
5 studies that have been done, and that is where the
6 accuracy of results is. Have I said that correctly?
7 A I would agree with everything except your
8 statement that there is no control. There is extensive
9 control in this procedure. If you did not control the
10 procedure such that you could keep extraneous factors
11 from contaminating the results, you would destroy the
12 integrity of the test.
13 But it's not control in the sense of a
14 control group that you would use in a scientific
15 experiment but there is control in the sense that you
16 would control not only everything that goes into the
17 exam but you make comparisons within that person in
18 terms of their physiological reactions to control for
19 any idiosyncrasies that person has in their
20 physiological activity. That is a substantial amount of
21 control.
22 Q But, Dr. Raskin, you have said that you don't
23 have control over what a subject brings to the
24 examination, his knowledge his knowledge about
25 countermeasures, his knowledge about the polygraph exam
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1 in general, his response to particular questions; you
2 don't control that, do you?
3 A Well, I can't control what he walks into the
4 room with, but I can certainly exercise a tremendous
5 amount of control over how he views the polygraph
6 examination and how he interprets the questions and how
7 he reacts to them depending upon whether he is lying or
8 telling the truth. I can't, for example, control
9 whether he is guilty or innocent. That is something he
10 brings into the room with him. But I can control the
11 situation such that I can find out with a high degree of
12 accuracy whether or not he is telling the truth about
13 that.
14 Q Based on the outcome of the test?
15 A Exactly. Otherwise I wouldn't do them.
16 Q Now, the validation for the accuracy of
17 results my understanding is that relies on three kinds
18 of studies. You talked about field studies, lab studies
19 and panel studies; is that correct?
20 A No, a panel study is a type of field study.
21 I would rely mainly on laboratory studies and field
22 studies that involve confessions and physical evidence
23 as the criterion for confirmation of guilt or innocence.
24 Q All right. Talking about panel studies for
25 just a second if I understood you correctly, a panel is
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1 asked to look, for example, at a criminal investigative
2 report, reach their own conclusions and then they
3 compare that with the polygraph results?
4 A The panel doesn't, the researcher does.
5 Q I see.
6 A The panel doesn't know about the polygraph.
7 Q Okay. But in that situation if you're
8 dealing with a criminal investigative report, there is
9 still no absolute knowledge of what we call "ground
10 truth," is there?
11 A That's right. That's why I feel that the
12 panel studies are relatively weak sources of
13 information. They just happen to produce results
14 consistent with the other kinds of studies but I put
15 less weight on panel studies than the other two types of
16 studies that I've described.
17 Q You also agree that with respect to lab
18 studies one of the flaws in using results from those
19 studies may be that the subjects are not facing real
20 life consequences in those lab studies and that that may
21 have an affect on the outcome?
22 A I wouldn't say it's a flaw. It's a potential
23 limitation.
24 Q With respect to actual field studies, do you
25 know whether there are any studies where you can be sure
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1 that in the field studies the test given was the
2 directed lie control question technique?
3 A Well, the study that I described where we had
4 one directed lie, the one that Dr. Honts and I did is a
5 field study with directed lie as well as probable lie
6 questions as far as a field study that was purely
7 directed lie in actual cases.
8 Q I believe you talked about a study where
9 Secret Service polygraph results were used in the field
10 study?
11 A That's right.
12 Q In that particular study was the directed lie
13 technique used?
14 A No, that study was done before the directed
15 lie work had gotten to be real extensive other than the
16 earlier study by Dr. Barland, but I should point out to
17 make sure that this is not misinterpreted, the problem
18 with the lack of concern I think that you alluded to in
19 that the person in a laboratory study is not facing the
20 serious real life consequences that could result from a
21 criminal accusation and prosecution, mainly conviction,
22 the problem is a problem that we may by laboratory
23 studies underestimate the amount of false positives.
24 Namely, that the person in the laboratory
25 study is not facing the dire consequences. And
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1 therefore may not react as strongly to the relevant
2 questions as the innocent person does in the field
3 situation when accused of a crime they did not commit.
4 And so the big danger and I think all
5 authorities agree on this, at least all competent
6 authorities, the big danger from the laboratory is that
7 you may find an accuracy rate for innocent people that
8 is higher than you would get in the field because in the
9 field some of the innocent people wouldn't be able to
10 pass the test. But you would still expect that you
11 would catch at least as many guilty people and probably
12 more because they are facing much more serious
13 consequences on the relevant questions. So the danger
14 is false positives, not false negatives.
15 Q On the lab studies?
16 A No, in the field.
17 Q Looking at Defendant's E for a moment, this
18 is the field study on the validity of the directed lie
19 test, and I think you said this is one of the two
20 studies on the use of the directed lie on
21 A No, more than two studies. I described three
22 studies and there are other studies that Dr. Barland is
23 aware of that he has alluded to in his report that I
24 don't have access to because they haven't been published
25 or promulgated because they are either classified I
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1 suppose or they just haven't gotten around to writing
2 them up.
3 Q Okay. I may have forgotten but I thought I
4 was asking about peer review studies. In any event in
5 Defendant's E there is a reference on the last page.
6 Actually it's a statement. It states, "It is not known
7 whether an examination with only directed lie control
8 questions would be valid."
9 A That's what it says?
10 Q That's what it says.
11 A Yeah, that was written about 1987.
12 Q I take it that your opinion has changed since
13 then?
14 A Yes.
15 Q Now, going back to field studies for a
16 minute, I believe it is your position that one of the
17 things relied on in the field studies to establish
18 ground truth is that a subject confessed?
19 A A suspect.
20 Q Yes, the suspect who actually also is the
21 subject of a polygraph exam?
22 A Not necessarily. Sometimes people confessed
23 who didn't take the polygraph and that was used to
24 verify the result on somebody else who took the test who
25 was exonerated by that confession. Sometimes they both
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1 took the polygraph.
2 Q In the field tests where somebody took the
3 test and scored deceptive, was that then followed by the
4 confession?
5 A Sometimes. If there was no confession in the
6 case, we couldn't use it for purposes of the study.
7 Q Because you had no corroborating information
8 about the deceptive results?
9 A We did not have the criterion of ground
10 truth.
11 Q And yet I believe that you have testified
12 that in situations in which you have been involved, in
13 cases in which you have tested somebody and you have
14 found truthful and yet later they either plead guilty or
15 are found guilty by jury verdict, that that does not
16 disprove your finding of truthfulness?
17 A On that particular individual?
18 Q It is my understanding that you have
19 testified that just because somebody pleads guilty or
20 just because they are found guilty does not invalidate
21 an earlier polygraph test you may have given that person
22 finding them truthful?
23 A It may or may not. It would depend upon the
24 nature of the evidence.
25 Q Aside from
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1 A May I explain?
2 Q Sure.
3 A As you very well know people often plead
4 guilty to something that they may not have done because
5 to take the risk of going to trial on charges that are
6 even more serious than what they plead to is such a
7 great risk that they decide to enter into a plea to
8 avoid very lengthy prison terms or whatever. You and I
9 and everybody in the court system knows it happens every
10 day in this country.
11 So a guilty plea does not mean they were
12 necessarily lying on the questions that they were asked
13 on the test. It certainly raises an issue but it is not
14 the same level of confirmation that you get when a
15 person confesses during the investigative stages where
16 there is no clear incentive to make a guilty plea other
17 than to just get it over with because they are guilty.
18 Occasionally those people make false
19 confessions but that is unusual. And one would have to
20 examine the circumstances. Even more problematic is a
21 court decision because as we know and as everybody knows
22 there are innocent people who have been convicted of
23 crimes they didn't commit. And we frequently read in
24 the newspapers about people being exonerated sometimes
25 many times years later or sometimes even after they have
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1 been executed for crimes they did not commit.
2 So simply a finding by a court is a judgment
3 made by that jury or by that court that the person was
4 guilty. It is not of the same quality as a confession
5 without inducement coupled with supporting physical
6 evidence such as we had in our big Secret Service case.
7 Now that is not to say that if I did a test and a person
8 pled guilty that I would say that doesn't tell me
9 anything. It certainly raises questions but one has to
10 examine that and that has happened on occasion and you
11 would expect that to happen because I am no better than
12 the technique.
13 And if the technique has an error rate of
14 about 5 percent false negatives, meaning of every
15 hundred people I test who are guilty, 5 will be expected
16 to pass the test if I do the test the way the scientific
17 studies seem to indicate the results should be, that is
18 going to happen. In my experience if I multiply those
19 numbers out based upon the tests that I have done, I
20 have outperformed the actuarial prediction as far as I
21 know, but there may be others I don't know about. But I
22 would expect that will happen. And if I didn't expect
23 that that would happen, I would be deceiving myself and
24 everyone else.
25 Q Don't you also expect based on your
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1 experience that polygraph exams would not be given in
2 criminal cases if investigators had a wealth of other
3 incriminating evidence?
4 A I do not know what that means.
5 Q Well,
6 A There is all kinds of cases that appear to be
7 ironclad. And I have seen cases where a polygraph was
8 done either by law enforcement or by nonlaw enforcement
9 people in cases where the evidence seemed to be
10 overwhelming that the person was guilty. And following
11 that polygraph, lo and behold, things changed and there
12 was motivation to look at it again more carefully and it
13 turned out the person wasn't guilty.
14 Q In the Secret Service case do you know
15 whether or not there was any coercion involved in
16 getting the confessions?
17 A Well, I am not sure what you mean by
18 coercion. Certainly every law enforcement examiner who
19 is welltrained in interrogation techniques uses a
20 variety of procedures to induce a confession when they
21 believe the suspect is guilty. And they even go so far
22 as to use tricks and other things to mislead that person
23 into confessing because they think they have evidence
24 that proves their guilt.
25 That is generally acceptable in our system
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1 and I have no quarrel with it. But that is not the same
2 as getting a person to falsely confess. And I have no
3 evidence that would convince me that in any case
4 whatsoever that was examined in our study that anybody
5 was forced to make a confession that was an invalid
6 confession. And knowing the Secret Service and the
7 quality of that organization I would be very surprised
8 if they do things like that.
9 Q But you don't know?
10 A Well, I wasn't in the room and I don't know
11 what people might have said, but there was never even a
12 hint of that in any case file that we looked at.
13 Q Nevertheless, the use of confessions in your
14 field studies is a very important part of validating the
15 accuracy of results coming out of those field studies?
16 A That's right, but what that would do if
17 what you're suggesting might have happened is you would
18 have more false positive errors. Not false negatives.
19 It wouldn't mean the guilty people got by the test. It
20 would mean they extracted a false confession from
21 somebody following a failed polygraph which they then
22 concluded confirmed that they were actually lying when,
23 in fact, they weren't lying.
24 And again that is throughout the literature
25 and throughout the technique and throughout the theory
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1 the problem. The big problem is the innocent person not
2 getting the correct result. But when the person does
3 get a truthful result, we have a very high degree of
4 confidence in that because that phenomenon is not
5 operating.
6 Q Let me move on for a minute to this idea of
7 countermeasures. My understanding of countermeasures
8 are that they are some kind of variables that can affect
9 the outcome of a polygraph exam?
10 A They are attempts to defeat the polygraph.
11 Q And I suppose when one talks of
12 countermeasures, what one is really talking about are
13 apparent countermeasures since you can never be in the
14 subject's head or in their body and it might be very
15 difficult to know for sure whether countermeasures are
16 being practiced?
17 A In a field test you mean as opposed to a
18 laboratory experiment?
19 Q Yes.
20 A You can never know for sure whether a person
21 is doing something. You have to use your best judgment.
22 The big problem is in reading into charts what you think
23 are countermeasures when, in fact, that is misleading
24 because if a person is really doing a good job of
25 practicing countermeasures, you won't know it.
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1 Q Physical countermeasures, let's talk about
2 those for a minute. Certainly the accuracy of the
3 results could be affected by the use of physical
4 countermeasures. And by countermeasures isn't it true
5 that one is not just talking about suppression of
6 certain responses but also manipulating the test by
7 producing responses?
8 A In fact, it is more likely the latter because
9 it is very difficult for a subject to suppress reactions
10 when they are lying. That is wellknown in the
11 literature. Dr. Barland has written about that in his
12 countermeasures handout that he uses for teaching. We
13 all recognize that suppression of reactions when one is
14 lying is a very difficult thing to do.
15 Q And among the possible physical
16 countermeasures shall we say that one could use that's
17 the easiest would be control of respiration, control of
18 breathing?
19 A No, I don't believe so. As I said earlier in
20 my testimony I don't know of a single study that
21 demonstrates that control of breathing has been a
22 successful way to defeat polygraph tests.
23 Q I believe what you said was that in deception
24 you expect breathing to basically stop and so the
25 effects will kind of flatten out?
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1 A No, I think you have overstated what I said.
2 Q All right.
3 A During deception what you get is a decrease
4 in some subjects, not in all subjects, of respiratory
5 activity. That can be manifested by a slowing of
6 breathing, a cessation of breathing, a reduction in the
7 amplitude of breathing cycles, the depth of expiration
8 and inspiration and another index which is a rise in
9 what we call the baseline of the breathing tracing when
10 a subject sort of breaths higher in their lungs by
11 raising the thorax as part of this response.
12 Q You would agree that a deep breath might
13 affect all of the other channels, all of the other
14 responses being measured by a polygraph machine?
15 A It might and it might not.
16 Q There is a phenomenon I think it is fair
17 to call it a phenomenon of biofeedback whereby people
18 can practice shall we say their responses. Are you
19 familiar with that?
20 A I have done research in biofeedback.
21 Q All right.
22 A In fact, I stopped doing research in
23 biofeedback because I decided it was not a productive
24 area because the effects are so limited and they have
25 virtually no relevance to polygraph techniques. They
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1 have been shown not to be effective in polygraph
2 techniques.
3 Q If one is doing a numbers test with the
4 subject and after the numbers test is over, one tells
5 the subject that the number that one lied to produced a
6 good response, isn't that a form of biofeedback?
7 A No.
8 Q Now, isn't it also true that information
9 about countermeasures is available in public domain?
10 A It certainly is.
11 Q You certainly have alluded to a number of
12 articles?
13 A Dr. Honts and I have published a great deal
14 that is in libraries, scientific journals, the more
15 popular publications, law review articles, things that
16 you would have ready access to or anybody else that took
17 the trouble to find it.
18 Q And although you say you can very strictly
19 control what a subject knows about a polygraph exam
20 you're giving, in fact, you can't control what the
21 subject brings with him?
22 A That's correct. I think I stated that.
23 Q Now, you use a computerized actually I
24 think your computerized program I don't know if it
25 breaks into two, but you have a computerized program
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1 that generates the charts. You also have a computerized
2 scoring program. Is that two separate things or is all
3 part of the same thing?
4 A The program is a very large program and it
5 has many components to it and you have referred to two
6 of a number of those.
7 Q Does it have a component that tries to detect
8 attempts by subjects to use countermeasures?
9 A We have an experimental program for that that
10 we have not put in to this version that is used in
11 actual testing except we supplied it to the U.S. Secret
12 Service a number of years ago for their experimental use
13 but not to be used for making actual diagnosis. But we
14 have found that the program without that special
15 countermeasure detector does a better job of giving
16 accurate results than numerical scoring when a person is
17 indeed practicing countermeasures. Dr. Honts'
18 dissertation showed that.
19 Q This experimental program that you have is it
20 programmed to notice this shallow breathing that you've
21 described that may be associated with deception?
22 A I'm not sure which program you're referring
23 to. The standard program that I would have used in this
24 test?
25 Q Both that and your experimental program. Are
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1 either one of them programmed to detect that?
2 A They measured that suppression of breathing,
3 yes.
4 Q All right.
5 A That's one of the standard measures that we
6 use.
7 Q Are either one of those programs set up to
8 notice deep breathing other than just to record it and
9 measure it?
10 A If what you mean is notice, do they measure
11 it, yes, they measure it.
12 Q Okay. Are either one of those programs set
13 up to detect deep breathing as a possible
14 countermeasure?
15 A In the sense that you're asking the answer
16 would be no because you don't need a special computer
17 program to see a deep breath on a polygraph chart. I
18 can look from here and see it.
19 Q In fact,
20 A Let me finish explaining.
21 Q I'm sorry, I thought you were.
22 A To make it clear I'm sorry, that's my
23 fault for pausing too much while I thought, but that
24 program that you're talking about, the specialized
25 countermeasure detection program is designed to identify
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1 things in the tracings that you wouldn't see if you
2 looked at the charts that you might be mislead by and
3 deep breaths are obvious.
4 Q And, in fact, I think that you have testified
5 that a competent examiner can distinguish movements on
6 the machine caused by a deep breath and that's true,
7 isn't it, that a competent examiner you said you can
8 see it here on our blowup chart here from where you're
9 sitting?
10 A That's correct.
11 Q And that a competent examiner also might want
12 to discount it as useful information or as being a bona
13 fide reaction to deception or to something that could
14 cause a response like deception, isn't that true?
15 A Yes, I must emphasize your correct choice of
16 the word might want to discount, not necessarily
17 discount it. And as I teach the Canadian Police College
18 and University of Utah and whenever I teach chart
19 interpretations, I teach that if you see a deep breath,
20 you then have to inspect the charts to determine whether
21 or not deep breaths for this particular subject are
22 invariably associated with alterations in the other
23 tracings.
24 For some people they are. There is a strong
25 linkage. And for some people they are not. And you
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1 cannot simply because there is a deep breath say
2 therefore I cannot score anything associated with that
3 question. That would be a severe error because if the
4 deep breath is associated with the question and you see
5 reactions in the other tracings, you don't know whether
6 the reactions in the other tracings are caused by the
7 breath or by the question.
8 And therefore you have to look for other deep
9 breaths in that chart to see if it happens when there is
10 not an important question being asked. For example, if
11 we look here you and I can both see that just before the
12 question that followed the directed lie, it's the fifth
13 question which should be R1, there is a very noticeable
14 deep breath.
15 MR. DANIELS: Your Honor, could I request
16 permission for Dr. Raskin to step down to the chart.
17 MS. HIGGINS: I think for the record we need
18 to identify which chart this is and perhaps for the
19 record we ought to give it a mark for identification.
20 MR. DANIELS: I think we have agreed on that
21 as Defendant's Exhibit X.
22 MS. HIGGINS: Your Honor, Mr. Daniels has the
23 original charts that were generated by Dr. Raskin and we
24 have agreed that those are already or certainly can be
25 admitted at this time as X. What is being shown here I
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1 suppose we can for identification mark as Xa. This is
2 a blowup of the chart.
3 THE COURT: That will be fine. Just so we
4 have it identified for the record in some way.
5 MR. DANIELS: The only clarification I might
6 add is that Ms. Higgins has my only copy of that, the
7 small one so she needs to mark hers, too, to use as
8 evidence and pass to the Court.
9 I have not been objecting on relevancy
10 grounds, Your Honor. I'm sure the Court will make its
11 own decision on that, but most of this goes to specific
12 application rather than the underlying scientific
13 techniques. I leave that to the discretion of the Court
14 so to whether I need to jump up and make an objection.
15 THE COURT: Okay. You can address that when
16 you close.
17 MS. HIGGINS: I'm sorry, I forgot what the
18 question was before we started all of that.
19 THE WITNESS: I was going to point out and
20 identify the things I have had been describing sitting
21 here as a deep breath and where it occurred and what it
22 shows.
23 BY MS. HIGGINS:
24 Q What you're going to use is what has been
25 marked for identification as Xa and if you can tell us
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1 which chart that is because you did three charts.
2 A This is chart 2 and this is the original
3 chart, not the edited version.
4 Q All right.
5 A What I was going to point out if you look at
6 the breathing tracing here, you can see that there are
7 some points where the breathing gets much larger than is
8 typical. And, in fact, this occurs in four places on
9 this chart. It occurs after the answer on the first
10 question, I, the introductory question. It occurs about
11 eight seconds before the beginning of the first relevant
12 question at a period where no question was being asked.
13 It occurs around the time of answer on directed lie 1
14 toward the end of the chart. And it occurs around the
15 time of answer on the last question which is a neutral
16 question.
17 In order to determine whether or not those
18 instances of deeper breaths caused reactions in the
19 other tracings, you have to look at all four of those
20 places because for some subjects every deep breath will
21 be accompanied by changes in the other parameters. And
22 for other subjects every deep breath will not be
23 accompanied by them. And if they are always accompanied
24 the reactions, say, increases in the skin
25 conductance, increases in the blood pressure and so on,
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1 if that occurs every time the subject takes a deep
2 breath, then you have to discount the other reactions.
3 But if it occurs only when there is an
4 important question associated with that deeper breath
5 and not when that deep breath occurs in conjunction with
6 a nonimportant question, then you have to consider that
7 there is not a strong linkage between breathing and the
8 other measures for that particular individual. It's a
9 psychophysiological difference from one person to
10 another. And then you can score the reactions that
11 occur when there is an important question being asked.
12 So if we look at this what we see is on
13 directed lie 1 down here we see a relatively deep breath
14 and we see a fairly large GSR. We see a very slight
15 blood pressure increase. Now the question is do we then
16 utilize those reactions as bona fide reactions or
17 reactions caused by the deep breath. In order to answer
18 that question we can do a couple of things. We can go
19 right to the next question which is a neutral question,
20 a nonimportant question and we find an even deeper
21 breath accompanied by a relatively small GSR and no
22 change in the blood pressure.
23 And that leads us to believe that the deep
24 breath is probably not causing the reactions that we see
25 in the GSR. And actually in the cardio recording on D1
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1 the reaction occurred before the deep breath. But to
2 further examine that, we can go back to an earlier chart
3 where we see this deep breath that is about 7 or 8
4 seconds before R1 when no question was pending. Here
5 we see an even larger deep breath than the one on the
6 directed lie and we observe that there is virtually no
7 effect on the skin conductance response and there is
8 also very little, if any, effect on the cardio response.
9 We also see and that would lead us then to
10 believe that the deep breaths are not causing changes in
11 the electrodermal or GSR and not causing changes in the
12 cardiovascular response. That is consistent also with
13 what we see with this deep breath on the question
14 well, just following the answer to the very first
15 question. Here we see the largest deep breath in the
16 chart. And the GSR that is occurring actually began
17 before the deep breath started.
18 And furthermore we don't see much change in
19 the cardiovascular channel. It was just slowly drifting
20 upward from the beginning of the chart and we see no
21 noticeable change in that other than when the subject
22 took this deep breath there is a little bit of
23 distortion due to slight body movement associated with
24 the breath.
25 So that in order to interpret then whether or
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1 not deep breaths in this subject caused reactions in the
2 other channels, we have to go through that entire
3 process. And the conclusion clearly is that it is not
4 the deep breaths that are causing the GSR's and the
5 cardiovascular responses we see in this chart but the
6 impact of the questions.
7 Q Now, you have been talking about chart 2. Is
8 that also true of charts 1 and 3?
9 A Chart 2 shows the best opportunity to make
10 that kind of an analysis because we have this one that
11 is out here that is not associated with any question.
12 But we can look at chart 1 and chart 3 and see if that
13 holds true there, if you would like to do that.
14 Q I don't think we need as detailed an
15 exposition. Just tell me did you notice deep breathing
16 on charts 1 and 3?
17 A Yes.
18 Q Did you discount it?
19 A Let's look and see because my analysis, chart
20 2 was the most useful for that purpose. And we can look
21 at charts 1 and 3 and let's see what we find. In chart
22 this is chart 1. We see a fairly large deep breath
23 at just about the answer or just before the answer to
24 directed lie 1. And we do see a GSR associated with it,
25 and we see a pretty large cardiovascular increase that
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1 actually started before the deep breath became a deep
2 breath.
3 So it is equivocal. We don't know because
4 you have an important question, you have reactions in
5 the other components and there is no way to disentangle
6 them. If we look farther down the chart, we see another
7 relatively large, deep breath at the neutral question at
8 the end of the chart in 2. There we see no increase in
9 the cardiovascular response and we also note that the
10 deep breath did not produce the big GSR that occurred to
11 that question. That occurred before the deep breath
12 even started.
13 And so again that leads us to believe that
14 the reaction to D1, the directed lie, is probably
15 caused by the question and not by the deep breath
16 consistent with what we saw on chart 2.
17 And that is reinforced by looking at the
18 relatively large breath that occurred following the
19 answer to D2. There we don't see much effect at all on
20 the GSR and we see very little effect on the cardio.
21 What occurred in reaction to those occurred before that
22 deep breath and again that is consistent with the notion
23 and the interpretation that the reactions in the other
24 channels were caused by the questions and not by the
25 deep breath.
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1 Q So generally speaking you would not discount
2 but you would score these you would not discount
3 these just because of the deep breaths?
4 A That's right. You
5 Q You have used this information to arrive at a
6 score?
7 A You cannot do this mechanically by saying if
8 there is a deep breath, therefore you can't score. That
9 would be a violation of proper chart interpretation. It
10 would be a misunderstanding of the underlying
11 psychophysiology.
12 Q And, in fact, you should probably look at all
13 three charts? All together not just one chart but all
14 three?
15 A Well, you have more information if you look
16 at all three. Some will provide you better
17 opportunities to make that determination because the
18 underlying principle is some people have a tight linkage
19 between deep breaths and increases in blood pressure and
20 skin conductance. And other people don't have that kind
21 of a tight linkage.
22 These are not direct hardwired connections
23 in the nervous system. They result from crosstalk or
24 spillover from one neurocontrol center to another in the
25 lower parts of the brain. And for some people that
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1 crosstalk is strong and for others it is weak. And so
2 you have to determine for each individual. It's the
3 only way you can do it properly.
4 Q So to make sure I am understanding you, you
5 are evaluating all the information on all three charts
6 or are you looking at just one chart at a time?
7 A Well, I look at all the charts and I look for
8 the best opportunities to make that analysis because it
9 is the same person on chart 1, chart 2, chart 3. So if
10 I find parts of the charts that enable me to make the
11 decision, are these tightly linked or are they not
12 tightly linked, that gives me the answer for that person
13 which then applies to every chart.
14 Q Thank you. I think that's all the questions
15 I have on that. Now, in addition to possible
16 countermeasures affecting test results there are other
17 variables as well including examiner competency. I'm
18 correct when I say that, aren't I, that examiner
19 competency is a variable?
20 A I would hope so. I hope if you know how to
21 do it well, there will be a better test than if you
22 don't know what you're doing.
23 Q You have talked about utility blind scoring
24 and for the purpose of my question I am going to assume
25 that blind scoring means the person doesn't know
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1 anything about the case facts, doesn't know anything
2 about how the test was administered, is just looking at
3 the charts and scoring them. Is that the definition of
4 blind scoring that you can work with?
5 A Generally. Although a person might know
6 something about the case but that information might not
7 have any potential to influence. If you said this is a
8 tax evasion case, that is not going to affect the blind
9 scoring.
10 Q All right. But one thing that does affect
11 blind scoring and that blind scoring cannot account for
12 if anything happened at the time of the test due to any
13 kind of bias on the part of the examiner, that's forever
14 reflected in the test? I mean the charts are like
15 archival, historical artifacts? They are just there
16 forever and all a blind scorer can do is just look at
17 the chart?
18 A I think I understand the thrust of your
19 question. And that is if there were something done
20 improperly, not just simply biased because biased
21 doesn't have do be expressed in a way that affects the
22 subject, I mean I could believe something that is
23 completely wrong and still do the test properly. So I
24 might have a personal bias but it doesn't affect the
25 test. But I could have not a bias and still do things
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1 wrong and mess up the test.
2 So with that qualification if there is
3 something that could contaminate the results such that
4 what is shown in that chart is not a proper
5 representation of what should be there because it wasn't
6 done properly and it affected the subject in a way that
7 contaminated the test, then what you're saying is that
8 the blind scorer doesn't know that.
9 Well, the blind scorer doesn't know that if
10 they just look at the chart. But if they then listen to
11 the tape recording and that's why the Rule of Evidence
12 in New Mexico and the licensing regulations in Utah
13 require every examination to be fully tape recorded,
14 then after doing the blind scoring, then the person can
15 listen to the tape to see if something was done that was
16 wrong and that ruined the integrity of the test.
17 Q Were tape recordings available in any of the
18 blind scoring done in any of the studies that you have
19 talked about?
20 A They were available but they were not
21 provided the blind scorers because that was not the
22 issue of the studies. The issue of those studies was
23 not to determine whether or not the test was conducted
24 properly because we set that up the way we wanted it and
25 that is a matter of record. The blind scoring was done
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1 to see what happens and how consistent are people when
2 they do blind interpretation of charts with no other
3 information. It's a limited question.
4 Q Okay. Is it true that a time lapse between
5 the time of the alleged crime and a polygraph exam can
6 also be a variable that affects the outcome or the
7 accuracy of results?
8 A Well, it could be. And where it might
9 actually turn out to have an affect is if the person is
10 dealing with a situation for which they don't have a
11 good memory, for which the events are pretty vague and
12 then when they are being tested, they don't know exactly
13 what happened. And that could cause a false positive
14 error.
15 You never want to test a person who doesn't
16 have a clear memory of events or if the events are so
17 unimportant in their life that they would be expected to
18 forget them. And the risk is if a person then is trying
19 to remember, this becomes like a control question. And
20 it provokes reactions on the relevant questions when
21 maybe there should be or maybe shouldn't be so the risk
22 again is false positive if you're trying to ask them
23 about something that they are having difficulty
24 recalling.
25 Q With regard to your computerized scoring of
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1 results let me ask you first of all on numerical scoring
2 what the Government initially received was a numerical
3 score sheet and was not computerized. And on that
4 numerical score sheet that you provided the Government,
5 which directed lie question did you prepare to which
6 relevant question? What method do you use to make those
7 comparisons?
8 A Let me see if I understand. The score sheet
9 that you received was the score sheet generated by the
10 computerized polygraph system. It is all printed out,
11 right? But it is not the computer analysis. What it is
12 is where the examiner, myself, viewed the charts on the
13 screen and entered the numerical scores onto a template
14 and then it is printed out.
15 Q That's correct.
16 A The way I do this and this is the way that as
17 far as I know virtually all federal examiners are
18 trained to do it and the Canadian people are trained to
19 do it generally is you compare the reactions to the
20 relevant questions to the close by control questions.
21 And with the type of test format I have here you will
22 see that there are two relevant questions surrounded on
23 either side by two control questions or directed lie
24 comparison questions. And what you do then is you
25 compare the reaction to each relevant to the stronger
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1 reaction shown by either of the controls.
2 Q And that is what you did in Dr. Galbreth's
3 case?
4 A Yes. And that is what I have been doing ever
5 since we completed the study with the Secret Service
6 that showed that that is a very effective and accurate
7 way to do chart interpretation.
8 Q Is that the same kind of scoring that the
9 federal agencies do?
10 A That is my understanding that most federal
11 agencies do that, but they are taught to choose
12 depending upon the test format, of course. There has to
13 be two control questions nearby that relevant question.
14 The format I am using here with two relevants surrounded
15 by two controls and then another two relevants
16 surrounded by two controls is very similar to many of
17 the tests that the Secret Service did in the study that
18 we did and that's how they scored them.
19 And as I understand that is what is taught
20 generally at the DOD Polygraph School except to perhaps
21 for test formats where you don't have two control
22 questions close by for a relevant question. Then you
23 would have to do it to the closest.
24 Q Now, your actual computer scoring which I
25 take to be a different thing that results in a
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1 probability
2 A Yes.
3 Q that is a program that you developed a
4 number of years ago, isn't it?
5 A Well, it is a continuing development.
6 Q Why did you not do that initially in this
7 case?
8 A Because I don't typically use it in actual
9 cases because first of all the numerical scoring
10 procedure has been the traditional procedure for many,
11 many years. And polygraph examiners are familiar with
12 it. That is what they do. So if they were to score the
13 charts, they would do numerical scoring and so it makes
14 it comparable and understandable to other people.
15 Q And yet you did include a probability
16 statistic I believe on your score sheet even though you
17 haven't done a computer scoring when you provided this
18 information to the Government?
19 A That probability estimate that the confidence
20 is greater than 90 percent at the end of my report?
21 Q Yes.
22 A That is what I always put in my report when I
23 have a result based upon numerical scoring and all of
24 the scientific evidence indicates that when you
25 numerically score this type of test, the estimated
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1 accuracy of that procedure exceeds 90 percent. It is
2 not a probability estimate in the same sense as the
3 computer scoring.
4 Q In order to derive that probability do you
5 have to have some kind of data base?
6 A Which probability?
7 Q The probability of I believe you have given
8 from the computer scoring, 95 percent?
9 A Yes, you have to have a data base?
10 Q Well, what is your data base?
11 A The data base is based upon several hundred
12 subjects that is a combination of field, criminal,
13 suspect polygraph tests that are verified and carefully
14 conducted laboratory polygraph tests that we know ground
15 truth by virtue of the design of the experiment.
16 Q Has the scientific community at large had the
17 opportunity to review your data base?
18 A Well, we published an article in the Journal
19 of Applied Psychology in 1988 where our procedures, our
20 analytic procedures were subjected to an extremely
21 exhaustive and lengthy peer review. The longest I have
22 ever experienced in my career. Fourteen different
23 outside reviewers reviewed those data and as well as the
24 action editor and that was published in one of the most
25 prestigious and difficult journals to get published in,
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1 the Journal of Applied Psychology.
2 Q That was your data base that they were
3 looking at?
4 A Well, they knew what the data base was. It
5 is described in detail in the article. Since that time
6 we have added to the data base. We have accumulated
7 more cases and added field examinations, added data from
8 other experiments that were also, you know, peer
9 reviewed. So we have expanded the data base.
10 Q How does the concept of algorithms play in
11 this? The algorithms that are used in your computer
12 program?
13 A An algorithm is simply a term of art in
14 computer programming that says that it's some
15 calculation or routine. Are you talking about the
16 algorithms that generate the probabilities?
17 Q Yes.
18 A That is a series of statistical procedures
19 that are analytic solutions where you put all the data
20 in and you identify which cases are the verified guilty
21 and which cases are the verified innocent and then the
22 computer program does a huge amount of number crunching.
23 And when I say computer program, I mean standard
24 statistical packages that are accepted as accurate and
25 proper methods for analyzing data in this way. Not our
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1 final result which we now use to calculate the
2 probabilities but rather the means of arriving at that.
3 And then all of this number crunching goes on
4 automatically and so on. And what this type of program
5 does is find the optimal way to combine weight and
6 combine the information that is there to give the best
7 possible separation between the guilty subjects and the
8 innocent subjects to give the best accuracy. And it
9 then results in the algorithm that I think you're
10 referring to which incorporates the weights to be
11 assigned to the different features that will then give
12 us the best, most accurate estimate of probability of
13 truthfulness and that's what we did.
14 Q Has that algorithm as well as the other one
15 you have described been peer reviewed?
16 A The procedures have been peer reviewed. The
17 specific weights that the analytic procedure generates
18 are not a matter of peer review. That is a matter of an
19 empirical result. The methodology has been peer
20 reviewed, yes, but the specific weights are not the
21 issue of peer review.
22 Q So they have not been?
23 A Well, it wouldn't make any sense. I am not
24 sure what it means. When somebody peer reviews a study,
25 they peer review the procedures, the data collection
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1 procedures, the analytic techniques and the
2 interpretations you make. They don't peer review that
3 your statistical program produced a particular value in
4 a particular place. That's a mechanical thing.
5 Q Wouldn't it lead to some understanding of how
6 your program works if other people in your field could
7 do that?
8 A No, it wouldn't. I mean the program works
9 the way it does. It produces that result. If you want
10 to know if somebody said, well, how do you arrive at
11 that particular number, actually all those weights and
12 procedures and everything including the weights were
13 peer reviewed in the article I talked to you about in
14 the Journal of Applied Psychology.
15 Since that time we have used the same
16 procedures and added to our data base and come up with
17 slightly different weights because we expanded the data
18 base. But the methodology has been peer reviewed and
19 accepted and published in one of the most prestigious
20 psychological journals.
21 Q I want to move on to the idea of general
22 acceptance or what degree of acceptance there is in the
23 field. As of 1991 apparently the American Psychological
24 Association issued some kind of policy statement setting
25 out their concerns of polygraph testing in general and
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1 their concerns included errors in scientific basis in
2 application and lack of examiner competency because of
3 lack of training. Do you know whether there has been
4 any change in their policy since 1991?
5 A Well, having been intimately involved in the
6 generation of that policy, I can tell you what I know
7 because I was the one that instigated that policy. I
8 was the one who asked for them to consider it and I was
9 the one that played a major role in the final wording of
10 the resolution that was passed, which is the one you
11 referred to.
12 And my understanding is that was their policy
13 then and it has not been revisited. But the policy is
14 more than what you just stated because the policy draws
15 a clear distinction between the use of polygraph
16 examinations in criminal investigation and their use in
17 employment screening.
18 And the major criticisms have to do with
19 employment screening and the concerns that there are a
20 lot of there were a lot of examiners out there doing
21 that kind of work that were not welltrained.
22 Subsequently and I played a major role in that, too, the
23 United States Senate sponsored a bill the bill was
24 sponsored by Senator Warren Hatch of Utah and Senator
25 Edward Kennedy of Massachusetts to make it illegal for
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1 employers to do the kind of employment screening that
2 was the major complaint in the American Psychological
3 Association policy statement.
4 And as a result that has virtually
5 disappeared from the scene of the United States and the
6 examiners that were the target there have mostly
7 disappeared also.
8 Q Is it your testimony that that policy has
9 nothing to do with application in a criminal context?
10 A No, I didn't say that.
11 Q I am just asking. So the policy also covered
12 concerns with use in a criminal context?
13 A Well, the concern was that if you're going to
14 do these tests, they should be done well and they should
15 be done in appropriate circumstances. And if you look
16 at the later part of the statement it says that whenever
17 polygraph tests are used, they should be considered in
18 light of the purposes of the polygraph, the context and
19 the population of persons on which the tests are being
20 administered. And that was to draw again the
21 distinction between legitimate, criminal investigative
22 type polygraphs and employment screening.
23 Q Moving on to the two surveys you talked
24 about, one done by Gallup in 1982?
25 A I believe it was 1982, yes.
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1 Q And Ms. Amato in 1992?
2 A I think she gathered the data in 1992 and her
3 thesis was finished
4 Q 1993, yes. You would agree that the results
5 are in many respects indistinguishable? In other words
6 that the opinions did not change in ten years?
7 A I would say that they changed slightly
8 although I don't know what is statistically significant
9 in the sense that among informed people I think the rate
10 of acceptance of polygraph went up. And the number of
11 people who said that it could be used as the sole basis
12 went up slightly. And also the number of people who
13 said it was useful went up somewhat, too, because there
14 are a few vocal critics who are represented in that
15 sample who have been critical of polygraph, have written
16 critical things about polygraph, have been major
17 opponents of polygraph and their views are reflected in
18 that very small percentage which I think is less than 5
19 percent who say that it is virtually useless.
20 So there is a little bit of polarization in
21 that sense. The critics got their say there but the
22 bulk of the people moved more in the direction when they
23 were informed of being accepting of polygraph.
24 Q But in the 1993, 19921993 survey, first of
25 all the number of members randomly sampled were about
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1 onehalf of the total membership of the
2 psychophysiological societies?
3 A I would have to look at the publication. I
4 don't think they got half the membership to respond.
5 Q No. I am talking about the number of people
6 actually sampled.
7 A You mean that were sent questionnaires?
8 Q Yes.
9 A Well, I would have to look at it. I don't
10 remember that number.
11 Q So you don't recall that of the 450
12 approximately who received surveys, only 136 people
13 responded?
14 A That sounds about right. That is a typical
15 response. In fact, it is a pretty good response to a
16 mail survey so I think that's better than what you
17 usually get. Many mail surveys get about a five percent
18 return. So that sounds more like a 30 percent return.
19 Q Nevertheless, that is about onethird of the
20 membership, of the total membership approximately?
21 A In terms of the return?
22 Q Yes.
23 A It is less than onethird but it is more than
24 in the Gallup survey. They only sampled every fifth
25 member.
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1 Q And of the more or less 60 percent of the 136
2 who responded, they agreed with the statement that the
3 polygraph is a useful diagnositc tool to be used with
4 other evidence?
5 A A substantial majority agreed that with
6 statement, yes.
7 Q And you would agree that that is still a
8 somewhat highly qualified statement by the membership
9 about the use of the polygraph?
10 A I don't think so. That is my position and
11 always has been my position and I am considered by many
12 people to be one of the strong advocates and that is my
13 position. That is as strong as I think anybody is
14 justified in going. I think the people who said that's
15 the only thing you need went too far.
16 Q In fact, isn't that statement that it's a
17 useful diagnostic tool that could be used with other
18 evidence is a statement that could be agreed with even
19 by some of the critics of the use of the polygraph?
20 A No. Oh, no. They say it's horrible, it's
21 useless, it's misleading and it should be banned. And
22 they have been fighting and fighting for that for years.
23 And inspite of that there is a growing sentiment within
24 the society in the opposite direction. They don't have
25 credibility frankly.
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1 Q Isn't it true also that in this Amato survey
2 one of the results or one of the conclusions she reached
3 from what the respondents told her was that these people
4 would be supportive of a policy coming out of the
5 psychophysiological society if the policy were neutral?
6 A That's a good position.
7 Q They would support a neutral?
8 A If scientists want to do anything when it
9 comes to policy, public statements usually they like to
10 stay out of the battle. Usually the best way to stay
11 out of the battle is to say, gee, folks, we don't have
12 anything strong to say one way or another. But when
13 asked about what the real opinion is, they give you the
14 real opinion. Scientists as a rule don't like to be in
15 the public spotlight except when it comes to giving big
16 research grants.
17 Q Speaking of research grants I notice from
18 your CV that at a certain point in your career you've
19 had a number of federal research grants?
20 A That's correct.
21 Q Have you had any federal research grants with
22 respect to the directed lie test?
23 A Yes.
24 Q Which one? When?
25 A There is a large grant there that came from
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1 the United States Secret Service that actually was money
2 that was appropriated to the Department of Defense for
3 polygraph research. And the Department of Defense
4 transferred the funds to the U.S. Secret Service to
5 support a large project by us which had three major
6 components one of which was to study the directed lie.
7 Q When was this grant?
8 A We I would have to
9 Q Is it within the last five years?
10 A I think it's a little bit longer than that.
11 I would have to look at my CV. If you want me to do
12 that, I can tell you which one it is.
13 Q So longer than five years ago you think?
14 A I can tell you exactly what it is because I
15 have a list of all my grants. And on page 14 it was
16 the grant that began in 1984. I have listed it from the
17 U.S. Department of Defense because that was the original
18 source of funds. It was a $91,000 and change grant and
19 we worked on that project for about a good three years
20 as I recall. So it probably finished I would have to
21 consult the reports but I think it finished around 1987.
22 Q And no federal grants since then?
23 A Let me check that again. I am not sure if I
24 was accurate. That is not correct. I was referring to
25 another series of grants that we had through the U.S.
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1 Army Research and Development Command. That grant I
2 have listed as U.S. Secret Service. It is on page 15.
3 It says computerized polygraph system and then maybe
4 I'm confused. Maybe it's the next one now that I see
5 it. You're testing my memory.
6 The one that says the directed lie
7 standardizing the control question test for the
8 detection of deception National Institute of Justice
9 1987, that's the one that was specifically on the
10 directed lie and it was a doctoral dissertation research
11 award from the National Institute of Justice, your
12 department, the U.S. Department of Justice, to study the
13 directed lie and it funded the research performed by now
14 Dr. Horowitz as his doctoral dissertation.
15 Q The computer scoring program that is actually
16 something that you and is it Mr. Kircher?
17 A Dr. Kircher. He a professor at the
18 University of Utah.
19 Q You are joint owners of this computerized
20 scoring program?
21 A We have a copyright on the specific
22 algorithms, yes.
23 Q And, in fact, this is something that you
24 sell?
25 A We don't sell it. The Stoelting Company
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1 sells it.
2 Q But you receive money as a result of any
3 sales?
4 A Hopefully we do. Although sometimes we
5 don't. Sometimes it is provided and it is provided to
6 training schools or other persons at minimal cost and we
7 receive nothing.
8 Q And you are also paid to perform polygraph
9 evaluations?
10 A Sometimes. Most of the time I get paid.
11 Sometimes I agree to do them for no pay. Sometimes I
12 submit a bill and don't get paid.
13 Q I know you make frequent trips into New
14 Mexico and do polygraph examinations here frequently?
15 A Well, I don't know what frequently means but
16 I do come to this state to do that work when attorneys
17 ask me to do so.
18 Q In fact, you are being paid in this case, are
19 you not?
20 A I expect to submit a bill.
21 Q How much have you been paid so far?
22 A For the polygraph examination?
23 Q For anything that you have done in this case.
24 A I have been paid in terms of fees $1,425 and
25 I was paid some expenses for air fare and hotel, et
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1 cetera in connection with the trip.
2 Q And how much do you expect you will be paid
3 if you are paid?
4 A You mean for this trip?
5 Q For this case. For all the work you do in
6 this case?
7 A It depends on how long you keep me here I
8 suppose, but I suspect I will be paid probably a few
9 thousand dollars more depending on how much time is
10 expended.
11 Q So the total will be under $5,000?
12 A Of fees not counting expenses, you mean?
13 Q Yes.
14 A I think it will probably end up being a
15 little bit more than $5,000 because I've done work
16 before I came here today in preparation, analyzing
17 materials, consulting with attorneys and so on. I would
18 have to figure out my hours but I suspect it will come
19 out to a little more than that.
20 Q But under $10,000?
21 A Under $10,000, yes, unless this causes me to
22 have to be here for a long time, which I hope doesn't
23 happen both for the client's sake and everybody else's
24 sake including mine and my family.
25 Q For example, if you testify at trial?
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1 A If I had to testify at trial, I would have to
2 bill for my time one that, yes. Whether I would get
3 paid or not, I would never guarantee but judging by the
4 integrity of the people who hired me, I would expect to
5 get paid.
6 Q You are hopeful?
7 A I am pretty confident.
8 MR. DANIELS: We pay our bills.
9 THE WITNESS: Yes, that is one law firm that
10 has never failed to pay properly submitted bills.
11 MS. HIGGINS: Thank you, Dr. Raskin.
12 MR. DANIELS: No redirect, Your Honor.
13 THE COURT: All right. Doctor, thank you
14 very much for your testimony.
15 THE WITNESS: Thank you, Your Honor.
16 THE COURT: We will be in recess until
17 tomorrow at 8:00 a.m.
18 (WHEREUPON, Court recessed at
19 5:45 p.m.)
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BETTY J. LANPHERE
1 REPORTER'S CERTIFICATE
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4 I, BETTY J. LANPHERE, Official Court Reporter
5 for the United States District Court for the District of
6 New Mexico, appointed pursuant to the provisions of
7 Title 28, United States Code, Section 753, DO HEREBY
8 CERTIFY that the foregoing is a true and correct
9 transcript of proceedings had in the withinentitled and
10 numbered cause on the date hereinbefore set forth; and I
11 DO FURTHER CERTIFY that the foregoing transcript has
12 been prepared by me or under my direction.
13
14
15 _______________________________
16 BETTY J. LANPHERE
17 Official Court Reporter
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BETTY J. LANPHERE
Dr. Farwell's testimony:
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