1 MR. DANIELS: No redirect, Your Honor.

2 THE COURT: You may step down. Thank you for

3 your testimony.

4 MR. DANIELS: I have no further evidence,

5 Your Honor, unless the Court wishes to hear argument. I

6 think we've said it all in the briefs.

7 THE COURT: Ms. Higgins, would you like to

8 make any closing statement?

9 MS. HIGGINS: Not if the defense is not going

10 to. They are the proponents.

11 THE COURT: All right. Give me about five or

12 ten minutes and we'll be back.

13 MS. HIGGINS: Your Honor, excuse me. I take

14 it from what we have said in chambers and what has been

15 said in open court that you are not interested in

16 talking with Mr. Murphy?

17 THE COURT: Well, please be seated. Why

18 don't you let me make sure that I know what Mr. Murphy

19 would have to offer first.

20 MS. HIGGINS: Well, Your Honor, his affidavit

21 is very brief and to the point but he does not give any

22 underlying reasons, I don't think.

23 THE COURT: Let me take a look at that.

24 MS. HIGGINS: And although it has been talked

25 about, it has not been offered.



1 THE COURT: What exhibit number is the

2 affidavit?

3 MS. HIGGINS: Government's 16. I should tell

4 the Court one thing. Mr. Murphy is not a Ph.D. He is I

5 suppose most accurately a polygraph examiner although he

6 has extensive experience. There has been an objection

7 to the admission of the affidavit without being allowed

8 to cross­examine. I guess my question at this point is

9 only if the Court thinks that it would aid in its

10 admissibility decision would I even suggest that we go

11 farther with this.

12 MR. DANIELS: And I have specific reasons

13 beyond the rules of evidence and confrontation in

14 fairness to object to simply allowing the affidavit in

15 without cross­examining. I think it was the day before

16 yesterday I got ­­ I think it was the day before

17 yesterday I received the phone number of Agent Murphy

18 from Ms. Higgins. And she kindly offered me a chance to

19 call him up. I called him although he didn't have

20 enough time to speak with me in length. He did tell me

21 not to represent anything that he had to say without

22 submitting a report back to him in writing and I haven't

23 had time to do that.

24 But I'll tell you what I would ask him

25 without telling you what his answers would be. I would



1 ask him whether it is true he did no blind review of the

2 chart, whether he did no numerical scoring in this

3 chart, whether what he means by the polygraph technique

4 not reaching the level of acceptance within the

5 scientific community is that isn't it true that he means

6 it's not accepted by virtually all of the scientific

7 community.

8 I would ask him whether he doesn't agree that

9 the polygraph has a scientific base in psychophysiology.

10 I would ask him whether it is true that the FBI and its

11 70 or so examiners relies on polygraphs along with other

12 evidence to make decisions about truth and deception. I

13 would ask him whether ethical, competent and objective

14 examiners' results are highly reliable.

15 I would ask him whether the accuracy rate

16 that is the ability to detect truthfulness and deception

17 with competent examiners is very high. I would ask him

18 whether he knows of any particular studies that he could

19 cite to me on the directed lie matter that he has put

20 forth in his article here. Those are the questions that

21 I would want to ask him to clarify any kind of

22 misleading inferences that would be in his affidavit.

23 MS. HIGGINS: And, Your Honor, if it is not

24 going to materially change the Court's mind about the

25 admissibility, then the Government will not ask the



1 Court to go forward with the telephone conference.

2 THE COURT: Okay. Here is the problem that I

3 have with this, I expected the Government to present

4 testimony of the nature included in this affidavit from

5 an individual with the experience and caliber of both

6 Dr. Barland and Dr. Raskin. If Dr. Barland can testify

7 as to any of the contents of this and you have not asked

8 that information and you may do so because the contents

9 of Murphy's affidavit go to the issues that the Court

10 needs to make a ruling on. They go right to the heart

11 of the Daubert inquiry.

12 The Government has had an opportunity to

13 present testimony and I don't want to hinder or curtail

14 your ability to do that. So if there is anything else

15 that Dr. Barland can address and can provide that is

16 contained in Murphy's affidavit, I cannot let Murphy's

17 affidavit come in because I am very concerned that the

18 issues that Murphy addresses in his affidavit are

19 pro­Daubert issues and they cannot be received without

20 proper examination.

21 MS. HIGGINS: I can proffer to the Court that

22 Dr. Barland disagrees with Mr. Murphy, and that he

23 respectfully disagrees with the FBI stance as put forth

24 in this affidavit. Only Mr. Murphy could explain to the

25 Court his reasons for why he has made these statements.



1 And Dr. Barland I don't think ­­ well, by hearsay Dr.

2 Barland could tell you ­­ actually not. I think all Dr.

3 Barland can tell you is that this is indeed an accurate

4 reflection of the FBI attitude toward the use of

5 polygraph results in court and that's really all he can

6 say.

7 THE COURT: That he disagrees?

8 MS. HIGGINS: The Department of Defense is in

9 disagreement with the FBI on that issue.

10 THE COURT: In light of that, I will not

11 consider the affidavit of Mr. Murphy. I will take at

12 this time about a ten­ to fifteen­minute break.

13 (WHEREUPON, a break was taken.)

14 THE COURT: The Court finds Dr. Raskin's

15 testimony concerning the polygraph test to be

16 sufficiently reliable and relevant to be admissible

17 under the Daubert standard. Applying the evidence that

18 the Court heard today to the factors in the Daubert

19 case, I find that the underlying scientific principles

20 of the polygraph technique that has been employed in

21 this case, "the control question technique" have been

22 tested.

23 There have been numerous laboratory and field

24 studies conducted to determine the validity of the

25 control question hypothesis. In addition numerous



1 articles have been published concerning the control

2 question technique and it has been subjected to a

3 considerable amount of peer review. Specifically with

4 respect to the validity of the directed lie control

5 question technique there have been two publications

6 which have been subjected to peer review.

7 The Government's expert witness also

8 testified that he has conducted at least one study to

9 determine the validity of the directed lie technique and

10 concluded that the technique is at least as reliable and

11 valid as the control question technique that utilizes

12 the probable lie control questions.

13 The rate of error for a control question exam

14 conducted by a qualified examiner who follows proper

15 procedures in administering the test appears to be at

16 worst less than ten percent. In addition standards do

17 exist and are maintained with regard to the

18 administration of the control question technique.

19 The American Polygraph Association inspects

20 and certifies polygraph schools in the country and at

21 least half the states regulate or license polygraph

22 examiners. Specifically in the State of New Mexico

23 there is a rule of evidence, 707, that sets forth the

24 procedures that must be followed in order for a

25 polygraph test to be admissible in Court. Here these



1 procedures were also followed by Dr. Raskin.

2 In addition a significant percent of the

3 relevant scientific community appears to accept the

4 validity of the control question technique when it is

5 conducted by a qualified examiner. Many of the

6 presumably valid challenges commonly raised to the

7 technique are not relevant in this particular case.

8 Some of those most common challenges are the

9 poor training and qualifications of the examiners; the

10 ability of unethical examiners to manipulate test

11 results; the test's lack of accuracy with respect to

12 false positive errors; the unsuitability of the

13 examinee. Under the circumstances of this case with Dr.

14 Raskin being the examiner in this case these types of

15 concerns are not a concern to the Court and are not

16 valid in this case.

17 The second prong of the Daubert case requires

18 the Court to examine whether the test results will

19 assist the trier of fact to determine a critical fact in

20 issue. With regard to that requirement Dr. Raskin's

21 opinion based on scientific knowledge regarding the

22 defendant's truthfulness is relevant information to a

23 critical fact in issue, and that is whether the

24 defendant willfully failed to report certain income on

25 his tax returns.



1 Dr. Raskin's testimony will have a tendency

2 to make the existence of any fact that is critical to

3 the determination of the action more probable than it

4 would be without the evidence as required by Rule 401.

5 In this way Dr. Raskin's testimony concerning the

6 defendant's test results will assist the trier of fact

7 to determine a critical fact in issue.

8 I have also considered the effective Rule

9 403. And in light of the adequate safeguards taken in

10 this case to minimize the risk of error of the test

11 results, in light of the highly probative value of the

12 test results to a critical fact in issue and the ability

13 of the Government to effectively cross­examine Dr.

14 Raskin and to present its own expert if it chooses to do

15 so, I find that the probative value of this testimony is

16 not outweighed by any prejudicial impact.

17 Furthermore, Dr. Raskin's own testimony as

18 has been provided yesterday explains the control

19 question technique is not infallible and any other

20 challenges to this technique or to the particular test

21 administered in this case can still be presented to the

22 jury and can be brought out in cross­examination of Dr.

23 Raskin and under the testimony of any other expert

24 witness that the Government chooses to present.

25 I want to thank you for your presentation.



1 This concludes our hearing and we will prepare an order.

2 Is there anything further you need to take up at this

3 time?

4 MS. HIGGINS: No, Your Honor. Although I

5 should alert the Court I may file a motion for an

6 independent polygraph exam. I'm not ready to address

7 that issue today and I think the Court would like to be

8 briefed on it. If I do decide to do that, I will do it

9 as soon as possible.

10 THE COURT: We'll take up that issue.

11 MR. DANIELS: And we'll file the appropriate

12 response. Your Honor, this next matter I will be very

13 brief about. I probably do not have any standing in

14 this case to request it, but I would respectfully

15 request that the Court consider writing a published

16 opinion on this since this is a cutting edge issue in

17 the law of post­Daubert. It would be of help to the bar

18 and bench in general. I just pass that on on my wish

19 list. I know you have a lot of work to do.

20 THE COURT: Okay. I want to thank our

21 experts, also, for being so patient with the testimony.

22 I have found it very interesting and very helpful.

23 Thank you.

24 (WHEREUPON, Court recessed at

25 11:50 a.m.)


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This segment of these transcripts was first made available on this server on 12 April 1997

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