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


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.

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.)


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?

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.


25         Q     Based on your experience and the research you 

                       BETTY J. LANPHERE                     


 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.


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 

                       BETTY J. LANPHERE                     


 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.


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 ­­

                       BETTY J. LANPHERE                     


 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.


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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.


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.

                       BETTY J. LANPHERE                     


 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.  

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.  


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?

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 1               THE COURT:  It shall be admitted.

 2              (WHEREUPON, Government's Exhibit 14

 3               admitted into evidence.)


 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 

                       BETTY J. LANPHERE                     


 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.  

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.


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 

                       BETTY J. LANPHERE                     


 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?  

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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.


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 

                       BETTY J. LANPHERE                     


 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.


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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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. 

                       BETTY J. LANPHERE                     


 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.  

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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


 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?

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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, 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 1               THE COURT:  Mr. Daniels?

 2               MR. DANIELS:  For the purpose of the record, 

 3    Your Honor, we'll call Dr. Honts briefly.  

Continue with the transcripts.

Return to the Polygraph Law Home Page

This transcript first made available on this server on 12 April 1997.

End of document.