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1 yesterday. Please understand that the Court's ruling
2 has nothing to do with your particular qualifications.
3 We're dealing with a very specific issue at this point.
4 THE WITNESS: Thank you very much, Your
5 Honor.
6 THE COURT: You may be excused. You may
7 proceed.
8 MS. HIGGINS: The Government calls Gordan
9 Barland.
10 GORDON BARLAND
11 the witness herein, having been sworn to
12 testify the truth, testified as follows:
13 DIRECT EXAMINATION
14 BY MS. HIGGINS:
15 Q Sir, what is your name, please.
16 A My name is Gordon H. Barland. That's
17 Barland.
18 Q By whom are you employed?
19 A I am employed by the Department of Defense
20 Polygraph Institute.
21 Q In what capacity?
22 A I am the chief of external research.
23 Q For how long have you been so employed?
24 A I have been with the Department of Defense
25 Polygraph Institute for just over eight years.
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1 Q And what are your duties there?
2 A I have several duties. One is to oversee the
3 research program that is done outside of the institute
4 in terms of giving grants and letting contracts with
5 other agencies and other researchers. Secondly, I am
6 involved with research on countermeasures and third I
7 teach some of the courses or some of the blocks of
8 instruction at the institute.
9 Q Before you were at the Polygraph Institute
10 can you just briefly give us your prior work history or
11 prior professional history?
12 A I served for seven years as an officer in
13 military intelligence and then returned to go to
14 graduate school. I studied under Dr. Raskin at the
15 University of Utah where I got my master's degree and
16 Ph.D. During that time I went to the military polygraph
17 school, the U.S. Military Police Polygraph School. And
18 then after getting my Ph.D. I served I stayed on in
19 Salt Lake City for a number of years where I had a
20 private polygraph consultation practice where I
21 conducted polygraph examinations on criminal defendants.
22 I was also involved in conducting polygraph
23 examinations for businesses, and I did some research on
24 the detection of deception. I taught at several
25 polygraph schools in a variety of things of that sort.
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1 Q And moving for just a moment to your
2 educational background, you have mentioned your master's
3 and I believe Ph.D. When and where did you get your
4 bachelor's degree?
5 A I have two bachelor's degrees. The first one
6 was from the University of Wisconsin at Madison which I
7 obtained in 1960 in the field of zoology. After being
8 released from active duty, I went to Wisconsin State
9 University at Eau Claire and got a second bachelor's
10 degree in psychology.
11 Q And you did mention your master's degree?
12 A (Indicating yes.)
13 Q Okay. Now, I believe we have covered then
14 your educational background and some of your experience.
15 Can you detail for us perhaps just a little bit more
16 your work or training or education specifically related
17 to forensic polygraph examination?
18 MR. DANIELS: Your Honor, if it will speed
19 things up, I have no objection to any questions Ms.
20 Higgins wants to ask for weight purposes. I will say
21 what probably is obvious now, we have no objections to
22 the qualifications of Dr. Gordon Barland as a forensic
23 polygrapher.
24 THE COURT: Will you accept that stipulation?
25 MS. HIGGINS: Yes, I will. I would like to
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1 talk with Dr. Barland just a little bit more, however,
2 about some of his qualifications.
3 THE COURT: Certainly.
4 MS. HIGGINS: Your Honor, at this time we
5 move admission of Government's Exhibit 8, which is Dr.
6 Barland's CV.
7 (WHEREUPON, Government's Exhibit 8
8 offered into evidence.)
9 MR. DANIELS: No objection, Your Honor.
10 THE COURT: All right. It shall be admitted.
11 (WHEREUPON, Government's Exhibit 8
12 admitted into evidence.)
13 BY MS. HIGGINS:
14 Q Dr. Barland, first of all have you testified
15 before?
16 A Yes, I have.
17 Q And when you have testified has it been
18 primarily in the area of forensic polygraph
19 examinations?
20 A Yes.
21 Q Have you been qualified as an expert witness
22 when you have testified in that area?
23 A Yes, I have.
24 Q And you have been qualified as an expert
25 witness in what?
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1 A In the detection of deception.
2 Q All right. Now, going back for a minute
3 since you have been at the Department of Defense
4 Polygraph Institute, have you specialized in any
5 particular area or have you done any particular research
6 in any particular area of forensic polygraph examination
7 or has it been a more wideranging inquiry?
8 A Well, my primary duties there are in
9 research. And the research I am conducting myself as
10 opposed to the research grants that I oversee that are
11 done elsewhere. My primary research interest has been
12 in countermeasures.
13 Q Can you please explain your understanding of
14 the term "countermeasures"?
15 A Well, there is many ways to define
16 countermeasures, but I generally define it to be those
17 things which a person does in order to try to appear
18 truthful on the test when, in fact, he is lying on the
19 test and is not truthful.
20 Q Are you also familiar with both the probable
21 lie control question test and the directed lie control
22 question test?
23 A Yes, I am.
24 Q Can you describe to your understanding the
25 differences between these two techniques? Am I accurate
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1 in thinking that both of those are techniques used in
2 forensic polygraph exams?
3 A Yes, that is correct.
4 Q Please describe the differences in those
5 techniques.
6 A Well, there is a lot of similarities. They
7 both belong to the family of control question tests in
8 that they both seek to evaluate the significance of
9 response in the relevant question by comparing it
10 against the size of reaction on a control question. The
11 main difference is in the way that the control questions
12 are worked up with a subject.
13 In the probable lie control question test,
14 the subject is led to believe that he should be
15 answering the question truthfully and yet he is pushed
16 into answering it no. That is the question will be
17 continued to be modified until he could answer it no.
18 And yet the examiner is trying to insure that the
19 subject who is answering the control questions either is
20 lying in them or is feeling that he may be holding back
21 significant information perhaps because he is
22 embarrassed to say it or tell the examiner about certain
23 incidents in his background.
24 With the directed lie control question test
25 the examiner is much more direct and open and offers a
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1 type of control question which could be used as a
2 probable lie control question also. But when the person
3 says, yes, I have done something like that, the examiner
4 does not try to make him believe that he is answering it
5 truthfully. Instead he instructs the person to answer
6 no to that question on the test and that will be a lie.
7 And he explains typically that the reason for having him
8 lie to that type of question on the test is so that he
9 can compare his known lie on this question with the
10 against the relevant questions where the examiner needs
11 to determine whether he is lying or not.
12 Q To you is there any significance between the
13 two types between the two techniques in terms of
14 whether countermeasures may be more available?
15 A Well, yes, I do have an opinion but my
16 opinion at this time is based strictly on logic and
17 reasoning. It is not based on any substantive research.
18 My speculation is or my hypothesis is that the person
19 MR. DANIELS: Your Honor, for the record I am
20 going to object to speculation or hypothesis. I think
21 Dr. Barland has candidly admitted that this is not based
22 on any fact or research.
23 THE COURT: Sustained.
24 BY MS. HIGGINS:
25 Q Based on your experience and the research you
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1 have done, do you have any opinion about the two of
2 them?
3 MR. DANIELS: Your Honor, I think it is
4 another way to get the same speculation. Unless it can
5 be established this is to a reasonable scientific
6 probability, then I object to it.
7 THE COURT: Ms. Higgins, you need to lay more
8 of a foundation in order to elicit that opinion.
9 BY MS. HIGGINS:
10 Q All right. Dr. Barland, have you
11 participated in administering both probable lie and
12 directed lie tests?
13 A I have given many probable lie tests myself.
14 I have not given or administered a probable a
15 directed lie question personally but I have overseen
16 research in which directed lies were used.
17 Q And you are familiar with the technique?
18 A Yes, I am.
19 Q From your observation what are the
20 differences in the way the questions are formulated
21 either for the control question or the directed lie?
22 MR. DANIELS: I object to the
23 characterization. That misstates the evidence. The
24 control questions are directed lie questions are
25 control questions. The distinction is between probable
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1 lie and directed lie in the category of control
2 questions.
3 MS. HIGGINS: I'm sorry, Your Honor, I may
4 have misspoke. What I'm asking is what is the
5 difference between the construction of a probable lie
6 and a directed lie question.
7 THE WITNESS: I'm sorry. I didn't quite get
8 the first part of your question.
9 BY MS. HIGGINS:
10 Q Just from your experience, from your
11 knowledge of these two tests, what is the difference
12 between constructing a probable lie control question and
13 a directed lie control question?
14 A I think the difference is the way that the
15 examiner goes about setting them up psychologically with
16 the subject, and the way that they are explained, the
17 rationale for introducing them or having them in the
18 test.
19 Q Looking at it from the subject's perspective,
20 the person who is being tested, what does that person
21 know about a probable lie control question as opposed to
22 a directed lie control question?
23 A On a probable lie test the person I suspect
24 and I am trying to put myself into the mind set of
25 the person taking the test
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1 MR. DANIELS: Same objection, Your Honor.
2 THE COURT: I think you want to ask him from
3 the perspective of the polygrapher. I thought we had
4 already gotten into that, what the subject is taking the
5 test, what information the subject has given
6 MS. HIGGINS: Yes.
7 THE COURT: is different in the directed
8 lie as opposed to the probable lie control question. I
9 think we have gotten into that. Isn't that what you
10 were asking again?
11 MS. HIGGINS: In a sense, Your Honor. I am
12 trying to approach it from another perspective. Why
13 don't I move on and perhaps we can move into it from
14 another way.
15 BY MS. HIGGINS:
16 Q You have been talking about your definition
17 of the term "countermeasures." Could you please
18 describe some countermeasures?
19 A Well, there is a variety of different types
20 of countermeasures. Some would be physical in which the
21 persons makes movements in an effort to distort the
22 charts or to create a reaction by tensing muscles or by
23 breathing differently or things like this.
24 A second category would be mental
25 countermeasures where he might do mental arithmetic or
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1 think of exciting thoughts or tranquil thoughts in an
2 effort to create reactions or minimize reactions,
3 suppress reactions.
4 There is also a pharmacological
5 countermeasure where a person may take drugs or
6 medications or pills in an attempt to alter the way his
7 body would react. And then there is a kind of a
8 catchall group of countermeasures which just don't fit
9 properly in any of the other categories.
10 Q Now, specifically physical countermeasures
11 and more specifically countermeasures involving
12 respiration, could you please describe some of those and
13 how those might be used?
14 A Well, there is a variety of different types
15 of respiratory countermeasures. And I might say that in
16 terms of respiratory countermeasures in my experience
17 they are probably the single most common types of
18 countermeasures that are experienced in criminaltype
19 examinations.
20 Q What form do they take?
21 A One form would be where a person tries to
22 keep everything even and calm in his breathing
23 throughout the entire test. That is very difficult to
24 do. Most people are not aware of how rapidly or deeply
25 they normally breath so that when they try to control
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1 their respiration, they tend to breathe slower and more
2 deeply than they otherwise would. And this is quite
3 obvious on the polygraph test.
4 A second approach that some people take in
5 controlling their breathing is to try to create
6 reactions or to distort the charts on the control
7 questions perhaps in a sense of trying to thinking
8 that if they can create large reactions on the control
9 questions, then it will make their lies on the relevant
10 questions seem less significant.
11 Q Is it fair to say that in attempts to beat
12 the test people engage not only in trying to suppress
13 behavior but also engage in creating something?
14 A It's very easy for people to create reactions
15 if they know how to do it. It is very difficult to
16 suppress reactions. I think that most guilty people
17 walk into the examination are more concerned of trying
18 to suppress their reactions to the relevant questions
19 which is a very difficult task. I think the more the
20 somewhat more sophisticated subject or somewhat more
21 intelligent subject can figure out during the test that
22 it might be to his advantage to create reactions on the
23 control questions.
24 Q If a subject has any kind of prior knowledge
25 about the construction of a directed lie test or if the
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1 subject has any prior knowledge about creating a
2 reaction in taking a polygraph test and then walks in to
3 take a directed lie test, is there any advantage to that
4 person in that situation that that person would not have
5 in a control I'm sorry in a probable lie test?
6 A Well, I think the advantage would be that in
7 the
8 MR. DANIELS: I am going to object, Your
9 Honor. She is asking again about something that he said
10 before would be speculation on his part. There is no
11 scientific data to research this or to support this. He
12 is talking about the same thing that we talked about
13 before and Dr. Barland very candidly admitted this is
14 just his speculation but there is no data to support it.
15 THE COURT: The question went to whether a
16 person who is taking a directed lie test knowing in
17 advance and having information that he would not have in
18 a probable lie test and whether that would be
19 manipulated by the subject?
20 MS. HIGGINS: It was more, Your Honor, if a
21 subject has prior knowledge about creating a response to
22 the test, what advantage might that person have in a
23 directed lie test that he would not have in a probable
24 lie test?
25 THE COURT: Doctor, you may answer that
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1 question.
2 THE WITNESS: I think the advantage would be
3 that the directed lie control question test is a more
4 transparent test in the sense that the examiner
5 conducting the test explicitly explains what the control
6 questions are and why they are there. That they are
7 there to compare the size of reaction against any
8 reaction occurring on the relevant question.
9 Whereas, in the probable lie test the
10 structure of the test, the design of the test, the way
11 the test is going to be scored is a little bit more
12 obscure. The subject is not explicitly told why the
13 or that the responses on the control questions are going
14 to be compared against the responses on the relevant
15 questions. So that he would have less of a clue as to
16 when it would be to his advantage to create a reaction
17 to a nonrelevant question.
18 BY MS. HIGGINS:
19 Q Are you aware of any studies or research that
20 have been peer reviewed related directly to the directed
21 lie test? Supporting its accuracy?
22 A The study by Honts and Raskin published in
23 the Journal Police Science and Criminal Law, I believe
24 it is, I believe that is what I would call a peer
25 reviewed journal.
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1 Q Dr. Barland, is that what has been marked or
2 is Defendant's Exhibit E? Is that the correct
3 A Yes, this is the one.
4 Q All right. Are you aware of anything else?
5 A I am aware of a number of other studies that
6 have been conducted but to my knowledge I don't believe
7 any of them have been published in a scientific journal.
8 Q All right. Now, going back to respiration
9 and deep breathing if a subject is taking a polygraph
10 exam and is doing deep breathing or for whatever reason
11 at whatever point, what effect can that have on the
12 exam?
13 A It can cause a reaction elsewhere in the
14 body. That is the body tends to there is a number of
15 systems within the body, such as the respiratory system
16 and the cardiovascular system and so on. And the
17 respiratory system is an extremely important system
18 within the body. Obviously, if we don't breathe for
19 more than a few minutes we die.
20 There is a very close relationship between
21 the respiratory system and the cardiovascular system.
22 In a sense they are kind of a super system. One of the
23 purposes of which is to get oxygen to all of the tissues
24 within the body, all the cells within the body and to
25 get waste products out from them.
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1 When a person takes a deep breath, it often
2 causes a series of changes elsewhere within the body
3 that can be seen sometimes in the cardiovascular tracing
4 or in the GSR tracing or the plethysmic tracing or
5 whatever else you are recording.
6 Q Now, using this case as an example, before
7 testifying today did you have an opportunity to review
8 the charts generated by Dr. Raskin?
9 A Yes, I did.
10 Q In fact, did you receive a floppy disk so
11 that you could print out your own set of the charts?
12 A That's correct.
13 Q Did you also well, what else did you
14 receive along with the charts?
15 A You sent me a Xerox copy of the polygraph
16 charts. Actually, I believe you sent them to Dr.
17 Yankee, the director on the institute, and he passed
18 them along to me to review. I received a copy of the
19 letter of transmittal that was sent to Dr. Yankee with
20 the charts.
21 I later received the floppy disk that
22 contained the physiological information that we could
23 reproduce the charts ourselves because the copy that you
24 furnished was a Xerox copy and it is always a little bit
25 easier to work with a fresh copy rather than a
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1 reproduction.
2 Q And the charts that you have generated as
3 well as the copies you have received from me, they are
4 the same as the charts that have been identified as
5 Defendant's Xa, which are the three blowups of the
6 three charts; is that correct?
7 A Yes, that's correct.
8 Q All right. I think that I would like you to
9 use those charts just by way of illustration to talk
10 about the effect of respiration or deep breathing on a
11 particular polygraph exam. Can you do that?
12 A Yes.
13 Q All right.
14 MS. HIGGINS: Your Honor, at this time also
15 well, let me ask you first of all.
16 BY MS. HIGGINS:
17 Q Do you have a copy of what has been marked
18 for identification as Government's Exhibit 14?
19 A Yes, I do.
20 Q Could you tell us what these are?
21 A These are enlarged Xerox copies of selected
22 portions of the polygraph charts that were run on Mr.
23 Galbreth.
24 Q So these are enlarged parts of the charts in
25 this case?
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1 A That's correct.
2 Q And they also relate to Defendant's Exhibit
3 for identification Xa; is that correct?
4 A Yes.
5 Q On this Exhibit 14 are the pages numbered?
6 A Yes, they are.
7 Q This is a composite exhibit, isn't it? It is
8 more than one page?
9 A Yes. I have seven pages all together.
10 Q All right. And do you also indicate anywhere
11 on the exhibit which chart each of these come from?
12 A Yes, I made a notation of that down at the
13 bottom of each page.
14 Q There appears to be some additional writing
15 on this exhibit. Who placed that writing there?
16 A If you're referring to some lines and arrows
17 and writing such as 1 1/2 seconds or 6 seconds, things
18 like that?
19 Q That's correct.
20 A I placed those there myself.
21 MS. HIGGINS: Your Honor, at this time I
22 would move admission of Government's Exhibit 14.
23 (WHEREUPON, Government's Exhibit 14
24 offered into evidence.)
25 MR. DANIELS: No objection.
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1 THE COURT: It shall be admitted.
2 (WHEREUPON, Government's Exhibit 14
3 admitted into evidence.)
4 BY MS. HIGGINS:
5 Q Now, Dr. Barland, would you prefer to testify
6 from your exhibit rather than the large charts?
7 A I think it would probably make more sense if
8 I do.
9 Q All right. First of all before we start
10 looking at the charts, in looking at the charts
11 generated by Dr. Raskin, did you notice anything having
12 to do with respiration or deep breathing on those
13 charts?
14 A When I was evaluating the charts, I noticed
15 that there were a number of deep breaths on the charts.
16 That most of them occurred on the directed lie control
17 questions. And I saw what appeared to be supplemental
18 reactions that appeared to be occurring as a result of
19 the deep breath.
20 Q All right. And based on your training and
21 experience did you do any kind of did these have any
22 significance for you?
23 MR. DANIELS: May it please the Court, excuse
24 me, Dr. Barland, I would interpose an objection. I have
25 no objection to the Court hearing as much of this as the
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1 Court chooses to, but it appears that we're getting into
2 the specific application of the techniques rather than
3 the individual Daubert factors. There may be a
4 disagreement between experts as to the application of
5 particular tests but that's irrelevant. So far we
6 haven't heard much from the witness about the Daubert
7 factors.
8 THE COURT: Is that what we're doing now?
9 MS. HIGGINS: Your Honor, we are using the
10 charts by way of explaining countermeasures and that
11 does go to the Daubert factor of accuracy, scientific
12 validity, scientific accuracy of the results of tests.
13 THE COURT: Basically you want to get into
14 that factor but use these charts as an example?
15 MS. HIGGINS: Yes, Your Honor.
16 MR. DANIELS: It sounds as if they are trying
17 to attack this particular application, this particular
18 chart unless Dr. Barland is going to say that the
19 existence of potential countermeasures makes the entire
20 polygraph technique scientifically invalid under the
21 Daubert standards.
22 MS. HIGGINS: Your Honor, I would also note
23 that although the Tenth Circuit obviously has not ruled
24 on this, there is a Tenth Circuit case postDaubert
25 applying the Daubert standard. It's a DNA case.
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1 Discussing the fact that one of the I believe it's
2 the Eighth Circuit has said that under Daubert
3 application of a technique in a particular case is a
4 Daubert inquiry.
5 The Tenth Circuit did not decide one way or
6 the other but found that in that particular case that
7 test as well had been met. Since the Tenth Circuit has
8 not spoken on it, I would like to put out that the
9 Eighth Circuit does find that application in that
10 particular case is a Daubert factor or a Daubert
11 inquiry.
12 MR. DANIELS: I have not seen that case and
13 can't respond to that summary of it, but I have in my
14 hand Daubert versus Merrell Dow Pharmaceuticals and in
15 the opinion of the Supreme Court on page 30 states, "The
16 inquiry envisioned by Rule 702 is reemphasized and
17 flexible. Its overarching subject is the scientific
18 validity and thus the evidentiary relevance and
19 reliability of the principles that underlie a proposed
20 submission. The focus, of course, must be solely on
21 principles and methodology, not on the conclusions that
22 they generate. That is a matter for competing experts
23 at trial."
24 MS. HIGGINS: Your Honor, I also proffer the
25 fact that when Dr. Raskin testified yesterday he
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1 testified at length about deep breathing on charts and
2 he testified at length about how that could affect the
3 outcome of test results and how it could affect the
4 outcome of the accuracy of test results. And that some
5 of what Dr. Barland has to say is in response to that as
6 well.
7 MR. DANIELS: Your Honor, that was in
8 response to her questioning. She is the one that got
9 him down there.
10 THE COURT: We need to get focused or we are
11 not going to have enough time to finish all of this.
12 The ruling of the Court is going to be that we cannot
13 get into the specifics of this case unless, of course,
14 it is being used as an example for purposes of showing
15 whether this is in particular what he is talking about.
16 Please address the traditional Daubert factors with the
17 expert.
18 MS. HIGGINS: Yes, Your Honor.
19 BY MS. HIGGINS:
20 Q Putting this aside for just a minute, Dr.
21 Barland, have you done any work on countermeasures and
22 their effects in general on polygraph results?
23 A Yes.
24 Q And based on work that you have done, do you
25 have any opinion as to whether countermeasures are
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1 something that can very much affect or affect at all the
2 outcome of test results?
3 A I think that countermeasures can have an
4 effect on the outcome of any given polygraph
5 examination. How much of an effect or how often they
6 could have an effect is an issue that is unknown at this
7 time.
8 Q Are you aware of any studies that have been
9 done on countermeasures by people other than yourself?
10 A Yes.
11 Q Do you have any and what studies are
12 those?
13 A Well, the bulk of the studies have been done
14 by Dr. Honts and his colleagues. There have been a
15 number of other studies that Dr. Lykken did. The
16 earlier studies there was a very nice study done back
17 in the 1940's on countermeasures or a type of
18 countermeasure. The subject has appeared in the
19 literature periodically, but the bulk of the research
20 and by far the best of the research was done was not
21 done until the late 70's, early 80's.
22 Q All right. In the context of countermeasures
23 and their effects on the results generally, have there
24 been any research on naive subjects, that is untrained
25 subjects?
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1 A Yes. Drs. Honts and Raskin, I believe,
2 reported a study where on a mock crime the people who
3 were programmed to be guilty of committing the mock
4 crime and were given a monetary reward for appearing
5 truthful on the test, some roughly 60 percent of them
6 engaged in spontaneous countermeasures and I would
7 classify those as being naive subjects. For the most
8 part the presumption is that they knew very little, if
9 anything, about the polygraph before they came in for
10 the studies.
11 Q Are you aware of any situations in which a
12 naive subject has beaten a polygraph situation?
13 A Yes. It has happened in my own experience.
14 Q And this was a case where you were able to
15 verify that countermeasures were used and were used
16 successfully?
17 A That's correct.
18 Q How had you scored that person before you
19 found out?
20 A I don't recall the exact score. It happened
21 some years ago, but the charts were clearly truthful and
22 when I announced to the person that the charts were
23 truthful and I was clearing him of the allegation which
24 involved the theft of a mock classified document this
25 was in a training scenario when I was going to polygraph
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1 school in 1970. When I announced to my subject that he
2 had cleared the test, he laughed and pulled the
3 classified document out of his boot and handed it to me.
4 Q Are you aware of either Dr. Raskin or Dr.
5 Honts having a similar situation in which they had
6 scored somebody deceptive who later told them that
7 I'm sorry, they scored him truthful and he later relayed
8 to them that he was deceptive?
9 A Yes. That would be the Hoffman case which I
10 believe was mentioned yesterday.
11 Q Now, moving on to the accuracy studies, you
12 heard Dr. Raskin's testimony regarding some of the
13 studies that have had been done and about the accuracy
14 of results in these cases; is that true?
15 A Yes.
16 Q Is there a division of the kind of studies
17 that are done? That is are there results achieved for
18 people who are called false positive and those they call
19 false negative? Are there different accuracy rates for
20 those two groups?
21 A My interpretation of the literature is that,
22 yes, there seems to be a higher, somewhat higher error
23 rate with identifying with correctly identifying the
24 innocent people as compared to the guilty people.
25 Q All right. Are you familiar with the term
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1 "base rate"?
2 A Yes, I am.
3 Q Can you explain to the Court what that is?
4 A Base rate refers to the proportion of a
5 population which is guilty or innocent. Usually you're
6 talking about the base rate or guilt. In that case you
7 would be talking about the proportion of subjects in an
8 experiment in a population or subpopulation which is
9 guilty of creating a real or mock crime.
10 Q How does the notion of base rate relate to
11 any of the accuracy studies that have been discussed in
12 this hearing? Was base rate a consideration in any of
13 the accuracy studies that have been discussed so far?
14 A Well, most of the studies that were discussed
15 had base rates that were reasonably close to 50 percent
16 base rate for guilt. An exception of that would be my
17 doctoral dissertation which had a base rate in which the
18 proportion of guilty subjects, a criterion of guilty
19 subjects was much greater than the proportion of the
20 criterion of not guilty subjects.
21 But the base rate issues normally are brought
22 up in terms of screening examinations, security
23 screening, for example, where people are applying for
24 security purposes and the purpose of the examination is
25 to find out if they are a spy working for a foreign
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1 country. And the proportion of guilty people within the
2 population being screened which is guilty is presumed to
3 be very small.
4 Q Do you know if this notion of base rate was
5 involved in any of the accuracy studies that have been
6 discussed by Dr. Raskin in this hearing?
7 A Would you repeat the question, please.
8 Q Do you know whether this notion of base rate
9 was involved in any of the accuracy studies that Dr.
10 Raskin has discussed here? Was that a consideration in
11 any of those studies?
12 A Not that I am aware of in terms of how they
13 were written up in the articles. For example, on my
14 doctoral dissertation we didn't discuss the base rate
15 issue at all.
16 Q Can you arrive at a probability, for example,
17 90 percent accurate or more and do that without any
18 reference to base rate?
19 A Normally, when you talk about the accuracy of
20 the polygraph technique, particularly when you break it
21 down to the accuracy with guilty people and the accuracy
22 with innocent people is presumed that you have a base
23 rate of guilt of about 50 percent. But even if it is
24 less than that, when you break it down separately to the
25 accuracy with guilty people or the accuracy with
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1 innocent people, base rate really did not become an
2 issue in that.
3 The base rate would be an issue when you talk
4 about the confidence you would have in a given decision,
5 for example, a decision of truthfulness or a decision of
6 deception.
7 Q And what does the notion of an inconclusive
8 result have to do with all of that and have to do with
9 base rate?
10 A Well, in a certain percentage of the times
11 when an examiner conducts an examination and the
12 examination is over, he simply cannot tell with a
13 sufficient degree of certainty whether the person is
14 telling the truth or not. And so he makes no decision
15 about the person's truthfulness and this is called an
16 inconclusive result.
17 Q Do the inconclusive results appear in these
18 studies? Are they weighted at all in the studies that
19 Dr. Raskin has talked about?
20 A Each of the published studies report what the
21 inconclusive rate is. The earlier studies merely
22 reported the overall inconclusive rate. The more recent
23 studies report the inconclusive rate for the innocent
24 people and for the guilty people separately.
25 Q With respect to the accuracy rates, you heard
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1 Dr. Raskin testify what he believe the accuracy rates
2 are. Do you hold the same or a different opinion?
3 A I hold much the same. I would give somewhat
4 different figures but they are not radically different.
5 Q What would your figures be?
6 A I would have to qualify my figures first by
7 saying that I would be talking about the accuracy of
8 decisions in which we are setting aside the inconclusive
9 results. Typically, perhaps 5 percent, maybe up to 15
10 or 20 percent of the given examinations are
11 inconclusive. So if you set those aside and look at the
12 accuracy of the decisions that the examiner makes, then
13 I would say that on the guilty people the accuracy is
14 typically about 90 percent. Plus or minus a little bit.
15 Almost certainly somewhere between 85 to 95 percent.
16 For the innocent people as I mentioned it may
17 be a little bit harder to verify or to determine their
18 innocence on the polygraph so I would put that about the
19 same degree lower than Dr. Raskin would. I would say
20 that it is about with the innocent people about 85
21 percent. Almost certainly somewhere between 80 to 90
22 percent.
23 Q Are you aware of any differing opinions from
24 yours and Dr. Raskin's in the field?
25 A Yes.
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1 Q And would Dr. Iacono, for example, at the
2 University of Minnesota be one of those people who would
3 hold different opinions?
4 A He would certainly hold a different opinion
5 about the accuracy or the ability of a polygraph to
6 identify the innocent people.
7 Q And what is his opinion in that respect?
8 MR. DANIELS: Your Honor, I have two
9 objections for that. The first is that this is clearly
10 hearsay. It is not for the purpose of formulating this
11 witness's opinion. The second is they are talking about
12 the problems with the innocent person passing rather
13 than a guilty person beating the test which is totally
14 irrelevant to the inquiry here.
15 THE COURT: Sustained.
16 BY MS. HIGGINS:
17 Q You are however aware of differing opinions
18 where the degrees of accuracy have been published and
19 are lower than yours and Dr. Raskin's?
20 A There have been a number of studies that have
21 reported a variety of different figures, yes. And some
22 of them are much lower than the figure that I believe is
23 the overall figure.
24 Q And how much lower?
25 A Well, there have been several studies that
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1 are given a great deal of weight by certain critics of
2 the polygraph technique that have shown
3 MR. DANIELS: I am going to object to that.
4 Without mentioning Dr. Iacono's name, it's the same kind
5 of approach asking this witness to talk about what
6 critics who are not here have to say that he doesn't
7 agree with.
8 MS. HIGGINS: Your Honor, perhaps I can
9 rephrase the question to ask Dr. Barland if he has
10 reviewed these things in reaching his own conclusions
11 and coming to his own opinions.
12 THE COURT: All right. Obviously he has
13 disregarded them but that's the only way they could
14 become relevant.
15 BY MS. HIGGINS:
16 Q And have you considered the opinions of these
17 people who have lower rates?
18 A Yes, I have.
19 Q All right. Moving on for a moment to the
20 area of variables in the actual administration of the
21 test, do you have any opinion based on your training and
22 experience about the level of competency necessary for
23 examiners, for example?
24 A An opinion about what?
25 Q The necessary level of competency or what
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1 level of competency is necessary for examiners who
2 administer polygraph tests?
3 A I believe that if an examiner has gone
4 through an appropriate training course on how to conduct
5 a test and he has a certain amount of experience in
6 conducting the examinations which may be given at the
7 school or perhaps in an internship following his
8 graduation from the school, I think that the examiner
9 would be in the ballpark of accuracy that we are talking
10 about here.
11 Q All right. And have you noticed any kind of
12 a phenomenon having to do with examiners and their
13 ability to manipulate the test in any way? And this is
14 with respect to finding people deceptive when they are
15 not or truthful when they are not?
16 A Well, what we are measuring here is
17 psychophysiological reactions. We're measuring
18 reactions of the body that are created by what is going
19 on in a person's mind. And so obviously an examiner
20 could manipulate the outcome of the test if he were so
21 inclined by administering the test in a certain way.
22 THE COURT: Ms. Higgins, let me interrupt you
23 for a minute and we'll give our court reporter a break.
24 (WHEREUPON, a break was taken.)
25 THE COURT: Let me inquire, Ms. Higgins, is
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1 your expert I am not really sure how far your expert
2 intended to go, but insofar as Daubert has two prongs,
3 one of them being that the evidence is of assistance to
4 the jury and that basically addresses the question of
5 reliability as well, but I would like to ask whether
6 this expert's opinion in regard to the effect that the
7 countermeasures may have had in this particular test. I
8 realize from your opening that he disagrees with the
9 grading, the scoring or the numerical score given by Dr.
10 Raskin but I don't know where that goes.
11 Basically, whether that's a matter that goes
12 to the weight or whether, in fact, his opinion is that
13 in this particular case the application of the
14 scientific principles that we have been talking about as
15 it was graded goes to the heart of the issue, to the
16 reliability question.
17 MS. HIGGINS: Well, I think that I would
18 answer that by saying that Dr. Barland disagrees with
19 the numerical scoring of the charts by Dr. Raskin. He
20 disagrees with Dr. Raskin's interpretation of the
21 phenomenon on the chart. And so he is disagreeing with
22 the application of the technique in this particular
23 case.
24 I would also proffer to the Court on the
25 issue of general reliability and validity that Dr.
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1 Barland would also have testified briefly about the
2 effect of time lapse between the time of the crime and
3 the time the test was taken as affecting the validity of
4 the outcome in general although that is going to be
5 another factor in this case specifically.
6 However, I don't think that Dr. Barland would
7 testify that the time lapse is an issue that would
8 generally invalidate the scientific reliability of
9 polygraph exams. So other than that I was not going to
10 go any further with Dr. Barland's testimony, and I don't
11 know if I have answered your question. Are you asking
12 whether the
13 THE COURT: I don't want to preclude the
14 Government from eliciting information from Dr. Barland
15 that goes to the question of reliability. If, however,
16 we're talking about disputes that he has that are
17 specific and go to the question of the weight the jury
18 is to give to this particular polygraph, that should be
19 deferred until the trial.
20 MS. HIGGINS: All right. And I would state
21 that to the Court and I have already argued this and
22 I believe it has been overruled that there may be
23 foundational issues about the way a particular test was
24 applied in a particular case that the Court can
25 determine pretrial.
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1 And that is another reason that the
2 Government had brought Dr. Barland because it is our
3 contention that because of the way the charts were
4 interpreted and scored, in effect the test was not
5 properly applied in this case. And that the resulting
6 confusion to the jury from having to determine whether a
7 plus 29 or a zero and all of the testimony regarding
8 that might make this a foundational issue that the Court
9 might want to have litigated pretrial. That was another
10 reason for having Dr. Barland here.
11 I can state to the Court and I can proffer to
12 the Court and I understand Mr. Daniels is ready to stand
13 up and crossexamine Dr. Barland on these issues, Dr.
14 Barland will testify that in his opinion based on his
15 training and experience, the control question technique
16 is scientifically valid and reliable validated by
17 studies he has done as well as studies
18 THE COURT: I'm sorry. With the direct lie
19 control technique?
20 MS. HIGGINS: No, I'm sorry, the control
21 question technique. It has been scientifically
22 validated and that he believes it to be a valid tool.
23 These results can be used in the courtroom.
24 THE COURT: All right. You may go ahead.
25 MR. DANIELS: I will try to be brief, Your
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1 Honor. Your Honor, there was a short line of questions
2 on direct examination about reviewing the computer disk
3 that Dr. Raskin sent. I can respond to that or if the
4 Court doesn't want to hear anything about that, I'll
5 just omit it entirely.
6 THE COURT: No, you can go ahead and inquire.
7 CROSSEXAMINATION
8 BY MR. DANIELS:
9 Q You ran a computer probability analysis or
10 someone in your laboratory did on the Galbreth computer
11 disk; is that correct, Dr. Barland?
12 A Yes, it is.
13 Q What was the probability analysis of the
14 truthfulness of Dr. Galbreth's examination as a result
15 of the computer run that your office did?
16 A Essentially the same as what was already
17 reported.
18 Q 95 percent?
19 A For the overall decision.
20 Q Let me ask some questions about the Daubert
21 factors. You have been in this field now for several
22 decades, haven't you?
23 A 25 years.
24 Q In fact, isn't it fair to say that you and
25 Dr. Raskin are two of the modern pioneers?
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1 A I don't think of ourselves as that. I mean
2 the history of the field goes back to the 1920's and I
3 hope that I'm not that old.
4 Q When I say modern pioneers I mean that there
5 has been a great deal of research and writing in the
6 last 25 years on polygraphy; isn't that correct?
7 A Absolutely.
8 Q If one were to conduct the Gallup poll or the
9 Amato poll that has been admitted into evidence here
10 back in 1965, there might have been a lot more
11 skepticism in the profession back then; isn't that fair
12 to say?
13 A It is hard for me to speculate about I
14 really don't have an opinion on that.
15 Q Most of the published studies and the
16 scientific tests and experiments have taken place since
17 you and Dr. Raskin first became involved in it?
18 A That's correct.
19 Q And whether or not you would characterize
20 yourselves as pioneers, you and Dr. Raskin are two of
21 the published researchers in the field among a number of
22 other people?
23 A Yes.
24 Q Isn't it fair to say, Dr. Barland, that the
25 polygraph in your professional opinion is grounded in
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1 the methods and procedures of science?
2 A Yes.
3 Q And that the inferences that are applied in
4 the polygraph, forensic polygraph technique that we've
5 been talking about here are derived by the scientific
6 method?
7 A Yes.
8 Q And the principles that underlie the
9 polygraph in your opinion are scientifically valid?
10 A Absolutely.
11 Q You head the Department of Defense Polygraph
12 Institute where you train most federal examiners?
13 A Yes, I am a member of the institute.
14 Q You teach polygraph?
15 A I teach certain blocks of instruction within
16 the we have a number of courses there and I teach
17 about 50 percent of one course and I teach the
18 countermeasure block to the basic course.
19 Q And you know there are several hundred
20 polygraph examiners that are on the payroll of our
21 federal government; isn't that correct?
22 A Yes.
23 Q And the primary technique that is accepted in
24 the profession for specific issue testing such as is
25 involved here is the control question technique; isn't
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1 that correct?
2 A Yes.
3 Q Both the directed lie and the probable lie
4 are versions of the control question, are they not?
5 A That's correct.
6 Q And you have no research to indicate that the
7 directed lie technique is not an effective control
8 question, do you?
9 A The research that I am aware of both by
10 others and by the institute have shown that the directed
11 lie control question test is at least as accurate as the
12 conventional probable lie control question test.
13 Q And you have done some tests you were
14 asked about published tests, but actually your
15 department has conducted its own tests on the directed
16 lie technique; isn't that correct?
17 A Yes, several studies.
18 Q And those are the findings even though they
19 are not published that your institute has come up with?
20 A Yes, that's correct.
21 Q What is the APA?
22 A Well, there are several APA's. You're
23 probably referring to the American Polygraph
24 Association.
25 Q Doesn't the APA that we're talking about now,
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1 the Polygraph Association, inspect and certify polygraph
2 schools?
3 A Yes.
4 Q There are at least 30 states that license or
5 certify polygraph examiners?
6 A They accredit the APA has an accreditation
7 committee. I don't know that they certify the schools.
8 I am not sure between certification versus
9 accreditation.
10 Q I may have been moving too quickly. The APA
11 accredits the schools but the next question was isn't it
12 a fact that at least 30 states license or certify
13 polygraph examiners?
14 A That is probably the case. I have not
15 followed the state licensing laws for the last several
16 years.
17 Q But you have published that statistic before?
18 A That seems reasonable, yes. Certainly at the
19 time I would have published them.
20 Q The control question technique is the most
21 frequently administered technique; is that correct?
22 A Yes.
23 Q With regard to the friendly polygrapher
24 issue, the research bearing on this hypothesis is that
25 going to a friendly polygrapher is somehow going to skew
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1 the results of the tests simply does not support it;
2 isn't that correct?
3 A That is absolutely correct.
4 Q You also agree that the polygraph can be a
5 probative value in matters of intent and knowledge,
6 wouldn't you?
7 A Yes, that is my opinion.
8 Q You have published that, haven't you?
9 A Yes.
10 Q With regard to the computer scoring in the
11 lab studies at the Department of Defense Institute, the
12 computer scoring actually had at least as high an
13 accuracy as the traditional numerical scoring; isn't
14 that correct?
15 A We have done several studies comparing them
16 and they appear to have about the same accuracy as human
17 examiners, competent human examiners.
18 MR. DANIELS: Your Honor, I think any more
19 would just be going beyond what is necessary for this
20 purpose and I would pass the witness.
21 THE COURT: Do you have any further redirect?
22 MS. HIGGINS: No, Your Honor.
23 THE COURT: Thank you very much for your
24 testimony, sir. Any other witnesses for the Government?
25 MS. HIGGINS: No, Your Honor.
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1 THE COURT: Mr. Daniels?
2 MR. DANIELS: For the purpose of the record,
3 Your Honor, we'll call Dr. Honts briefly.
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