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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 ­­

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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?

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.


24         Q     What you're going to use is what has been 

25    marked for identification as X­a and if you can tell us 

                       BETTY J. LANPHERE                     


 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, 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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, 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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. 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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?

                       BETTY J. LANPHERE                     


 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.)







                       BETTY J. LANPHERE                     

 1                    REPORTER'S CERTIFICATE



 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.



15                             _______________________________

16                                   BETTY J. LANPHERE

17                                   Official Court Reporter









                       BETTY J. LANPHERE                     

Dr. Farwell's testimony:

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