A few notes on the preparation of this document. This document
was retyped from the original by the secretarial staff of the
Department of Psychology at Boise State University. Reasonable
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may have occurred during transcription. No warranty is made concerning
the accuracy of this document. This document is placed here
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MEMORANDUM OPINION AND ORDER
VAZQUEZ, District Judge.
The subject of this Memorandum Opinion and Order is Defendant's
Motion for Admission of Expert Opinion Evidence Regarding Polygraph
Results, filed December 23, 1994. Plaintiff United States of America
filed a Response, January 3, 1995. A Daubert hearing was
held March 9-10, 1995, to determine the admissibility of Defendant's
expert opinion evidence regarding polygraph results. At the conclusion
of the hearing, the Court ruled from the bench and held that in
this case the expert opinion evidence regarding polygraph results
was admissible pursuant to Fed.R.Evid. 702 and 403. The purpose
of this Memorandum Opinion and Order is to further explicate the
Court's oral ruling. [FN1]
FN1. This case went to trial July 24-26, 1995. Upon the conclusion
of the Government's case-in-chief, the Government dismissed the
criminal charges against the Defendant. Thus, the Defendant's
polygraph evidence was not in fact presented to the jury. Although
the criminal charges have been dismissed, the Court nonetheless
issues this Opinion elucidating the Court's oral ruling because
it involves an issue of first impression.
FACTUAL BACKGROUND
On April 8, 1994, the Grand Jury indicted Defendant William Galbreth,
on three counts of willful tax evasion in violation of 26 U.S.C.
7201, for intentionally filing returns which under reported his
income. It is undisputed that Defendant failed to include on his
income tax returns certain items of income which should have been
reported. At trial, the sole issue is whether the willful mens
rea existed, i.e., whether Defendant knew that his income tax
returns omitted taxable income which should have been set forth
on the forms.
At defense counsel's request, Dr. David Raskin, a professor of
psychology at the University of Utah, administered a polygraph
test to Defendant to determine his knowledge and intent regarding
the items which should have been reported. The examination was
conducted on August 10, 1994. Dr. Raskin concluded that the Defendant
was truthful in his statements that he did not realize his returns
under reported his taxable income. At trial, Defendant intends
to call Dr. Raskin as an expert witness to testify about the testing
procedures, to explain how the test was evaluated and to explain
his interpretation of the results. Dr. Raskin is expected to testify
that the results are indicative of a truthful polygraph test outcome
with regard to the relevant questions. [FN2] Dr. Raskin will not
testify as to his personal opinion that Defendant was in fact
telling the truth.
FN2. The relevant questions are those questions on the polygraph
test which specifically addressed Defendant's knowledge and intent
regarding the items which he railed to report on his income tax
returns.
DAUBERT STANDARD FOR ADMISSIBILITY OF SCIENTIFIC EVIDENCE
The Court must determine whether Dr. Raskin's testimony is admissible
pursuant to the standard enunciated by the United States Supreme
Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
-- U.S. --, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Although
the Tenth Circuit has repeatedly upheld the exclusion of polygraph
evidence to prove the correctness of the results under the Frye
"general acceptance" test, it has not addressed whether
polygraph results are admissible pursuant to Daubert. [FN3]
Thus, the issue before the Court is an issue of first impression.
FN3. It is noteworthy, however, that even under Frye, the
Tenth Circuit did not foreclose the possibility that polygraph
results might be admissible to prove truthfulness where the defendant
lays the predicate foundation. Underlying this rationale is the
Tenth Circuit's recognition that "without a doubt matters
of factual proof must keep pace with developing scientific standards."
United States v. Wainwright, 413 F.2d 796, 803 (10th
Cir. 1969). See, e.g., id. (holding that the trial court properly
excluded the polygraph evidence where the defendant failed to
lay the predicate foundation for admission, even though in a proper
case it may be admissible) (emphasis added); United States
v. Hall, 805 F.2d 1410 (10th Cir. 1986) (admitting
polygraph results only for the limited purpose of explaining the
detective's failure to conduct a more complete investigation because
it found that the reliability of polygraph tests was still in
doubt, but not foreclosing the possibility that in a proper case
such evidence may be admissible to show truthfulness); United
States v. Hunter, 672 F. 2d 815 (10th Cir. 1982);
United States v. Russo, 527 F. d 1051 (10th
Cir. 1975).
In Daubert, the United States Supreme Court granted certiorari
to consider the proper standard for the admission of expert scientific
evidence in federal courts. The Court held that the Frye
test for determining the admissibility of scientific evidence
was superseded by the Federal Rules of Evidence, specifically
by Rule 702, which provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.
The Frye test required the proponent of the scientific
evidence to establish as a foundation that the evidence was of
a type generally accepted in the relevant scientific community.
In rejecting the "austere," id. - U.S. at ---, 113 S.Ct.
at 2794, Frye test, the Daubert Court did not dispense
entirely with the general acceptance inquiry. General acceptance
continues to be a factor that trial courts should consider along
with other factors in determining admissibility of purportedly
scientific evidence. However, standing alone it is not dispositive.
Although the Daubert Court found that the "rigid,"
Frye test was incompatible with the "liberal thrust,"
of the Federal Rules of Evidence and their general approach to
relaxing the traditional barriers of "opinion," id.
(quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153,
169, 109 S.Ct. 439, ---, 102, L.Ed.2d 445 (1988)), testimony,
the Court nonetheless recognized that the rules place limits on
the admissibility of purportedly scientific evidence. Trial judges
maintain a vital "gatekeeping," id. --- U.S. at ---,
113 S.Ct. At 2798 or screening function. In performing this function,
trial judges must ensure that any and all scientific testimony
or evidence admitted is not only relevant, but reliable. Id.
At ---, 113 S.Ct. at 2795.
Applying a plain meaning approach to Fed.R.Evid. 702, the Court
held that in assessing the admissibility of scientific testimony,
trial courts must determine that the testimony is based on scientific
knowledge that will assist the trier of fact to understand or
determine a fact in issue. First, the Court offered a general
guidance to trial courts in determining whether the proposed testimony
constitutes "scientific knowledge." It explained that
the adjective scientific implies a grounding in the methods and
procedures of science and that the word knowledge connotes more
than subjective belief or unsupported speculation. Id.
The Court repudiated the notion that scientific knowledge is a
static body of propositions that are "immutably true."
Id. Rather, it recognized science as "a process for
proposing and refining theoretical explanations about the world
that are subject to further testing and refinement," and
it explained that "in order to qualify as scientific knowledge,"
an inference or assertion must be derived by the scientific method.
Id. According to the Court, that method is a validation
technique consisting of the formulation of hypotheses and observation
or experimentation to test the hypotheses. Specifically, the
Court explained that in order to constitute "scientific knowledge,"
the "proposed testimony must be supported by appropriate
validation, i.e., good grounds based on what is known." Id.
In this way, the Court clearly perceived science as an empirical
endeavor. The Court further explained that the requirement that
the expert's testimony relate to "scientific knowledge"
establishes a standard of evidentiary reliability. Id.
at ---, 113 S.Ct. at 2795.
Later in its Opinion, the Court offered more specific guidance
to trial judges in assessing whether the proposed testimony constitutes
"scientific knowledge." In making such a determination,
trial judges must ask "whether the reasoning or methodology
underlying the testimony is scientifically valid." Id.
at ---, 113////s.Ct. at 2796. To assist trial judges in addressing
this question, the Court enumerated a nonexclusive checklist of
factors they should consider:
The Court emphasized that the inquiry envisioned by Rule 702 is
a flexible one, and that its overarching subject is the scientific
validity-and thus the evidentiary relevance and reliability-of
the principles that underlie the proposed submission. Id.
In making this inquiry, district courts must focus "on the
principles and methodology, not on the conclusions that they generate."
Id.
In addressing whether the proposed expert testimony will "assist
the trier of fact" to determine a controverted issue, the
trial judge must determine "whether the reasoning or methodology
underlying the proposed testimony properly can be applied to the
facts in issue." Id. at ----, 113 S.Ct. at 2796. This
condition, as the Court recognized is essentially one of relevance.
The expert's testimony must relate to an issue that is actually
in dispute. In this way, the trial judge must determine whether
the expert's testimony "fit[s]," id., the facts of the
case. The helpfulness standard in Rule 702 requires that the expert's
testimony provide a "valid scientific connection to the pertinent
inquiry." Id.
Finally, the Court alluded to other applicable rules of evidence
that trial judges should consider. The Court specifically mentioned
Rule 703, which permits expert opinions based on otherwise inadmissible
hearsay to be admitted, provided the facts or data are "of
a type reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject," Rule
706, which permits the court at its discretion to procure the
assistance of an expert of its own choosing, and Rule 403.
It is not entirely clear whether Daubert requires as a
prerequisite to admissibility that the proponent establish the
validity of the specific application of a scientific technique.
Thus, it is unclear after Daubert whether this Court must
scrutinize the specific application of the polygraph technique,
if the Court initially determines that the polygraph technique
in the abstract is a valid scientific technique. The Daubert
Court's ambiguity on this issue probably arises because the opinion
spoke primarily of the validity of scientific principles in the
abstract.
In the context of forensic laboratory testing, the circuits have
apparently split on the issue. Unfortunately, the Tenth Circuit
explicitly declined to address the split in United States v.
Davis, 40 F.3d 1069 (10th Cir.1994). Some Circuits
emphasizing the Daubert Court's directive that "the
focus must be solely on the principles and methodology, not on
the conclusions that they generate," id. -U.S. at ---, 113
S.Ct. at 2797, have held that such an issue goes to the weight
of the evidence rather than to the admissibility of the evidence.
[FN4] By contrast, in United States v. Martinez, 3 F.3d
1191 (1993), the Eighth Circuit held that "the reliability
inquiry set forth in Daubert mandates that there be a preliminary
showing that the expert properly performed a reliable methodology
in arriving at his opinion." Id. at 1198. The court
observed that the inquiry extends beyond simply the reliability
of the principles or methodologies in the abstract and that in
order to determine whether scientific testimony is reliable, the
court must conclude that the testimony was derived from the application
of a reliable methodology or principle in the particular case.
[FN5] Id. In the context of DNA testing, the Court noted
that the critical inquiry is "whether the expert erred in
applying the protocol and if so whether such error so infected
the procedure as to make the results unreliable." Id.
FN4. See, e.g., United States v. Bonds, 12 F. 3d 504, 563
(6th Cir.1993) (in general criticisms touching on whether
the lab[oratory] made mistakes in arriving at its results are
for the jury); United States v. Chischilly, 30 F.3d 1144,
1154 (9th Cir.1994) (the impact of imperfectly conducted
laboratory procedures is approached more properly as an issue
going not to the admissibility, but to the weight of the DNA profiling
evidence).
FN5. Professor Imwinkelried espouses a similar position. In the
context of forensic laboratory testing he notes: Once the process
of validating a scientific hypothesis and putting the validated
hypothesis to forensic use is understood, it becomes clear that
use of correct protocol during the forensic test directly relates
to the essential guarantee of trustworthiness of scientific evidence.
While proof of the general validity of the general hypothesis
and a showing of correct protocol are distinct factors affecting
the trustworthiness of scientific evidence, the factors are closely
related. An essential objective of proper forensic test procedure
is replicating the conditions of the earlier experiments. No matter
how impressive the validity rates achieved in the earlier research,
the earlier experiments do not afford any assurance of the trustworthiness
of the result of the instant forensic test unless the forensic
scientist follows the correct procedure. Edward J. Imwinkelried,
The Debate in the DNA Cases Over the Foundation for the Admission
of Scientific Evidence: The Importance of Human Error as a Cause
of Forensic Misanalysis, 69 Wash,U.L.Q. 19, 30-31 (1991).
[1] The issue at hand does not require the Court to determine
whether, in the context of other forensic scientific techniques,
a court must scrutinize the specific application of the scientific
technique. Nor could the Court make such an assessment without
evidence of the degree of error which may result from deviation
from protocol. However, after reviewing the case law addressing
this issue in the context of other forensic laboratory techniques
and after careful consideration of the testimony presented at
the hearing regarding the polygraph technique, the Court holds
that in the context of polygraph evidence, such scrutiny is imperative
to a faithful application of Daubert.
Such scrutiny appears to be mandated by Daubert's directive
that trial courts determine whether the purportedly scientific
evidence is "reliable." In particular, the Court's emphasis
on the process of arriving at reliable conclusions rather than
the conclusion itself is instructive. As will be explained more
fully below, the validity of polygraph results in a particular
case is absolutely dependent on certain conditions such as a properly
conducted examination by a competent examiner. Where the examination
is not properly conducted by a competent examiner, the validity
of the entire testing procedure and hence the result of the procedure,
is seriously called into question. Absent a showing that the examination
was properly conducted by a competent examiner, the proponent
simply cannot establish that the evidence is sufficiently trustworthy
to be admissible in court.
Further militating in favor of this Court's approach is Daubert's
more specific mandate that "proposed testimony be supported
by appropriate validation." As will be discussed below, field
and laboratory studies have validated the hypothesis underlying
the modern polygraph technique. However, certain essential conditions,
such as the administration of the exam by a competent examiner
and utilization of standard polygraph techniques, existed at the
time of the studies. Unless these conditions are also present
during the specific test at issue, testimony concerning the test
is not "supported by appropriate validation." Absent
such essential conditions, there is absolutely not guarantee of
trustworthiness in the results of the particular test. In this
way, the testimony regarding the test results lacks the requisite
validation which the Daubert Court considered so essential
to admissibility.
This Court's holding is further supported by the Daubert
Court's discussion of "the existence and maintenance of standards
controlling the technique's operation" in conjunction with
its discussion of the "potential rate of error of the underlying
scientific hypothesis." Such conjunctive treatment of these
factors appears to indicate the Court's concern that the specific
test at issue be conducted in accordance with standard procedures
and not merely that the underlying scientific hypothesis be validated.
[FN6]
FN6. See Margaret A. Berger, Procedural Paradigms for Applying
the Daubert Test, 78 Minn.L.Rev. 1345, 1358-59 (1994) (the
Daubert Court's mention of the existence of professional
standards in connection with its discussion of the rate of error
of the underlying methodological examination provides some indication
that the Court was concerned with how laboratory personnel carried
out the scientific test in question, and not merely with ascertaining
whether the test could provide results within a tolerable degree
of error when the laboratory is working properly).
Thus, for the aforementioned reasons, this Court holds that in
addition to establishing the scientific validity of the polygraph
technique in the abstract, the proponent of the proposed testimony
must also prove that the specific examination was conducted properly
by a competent examiner. [FN7]
FN7. Although some of the Daubert Court's language on its
face directs the trial judge's focus to the validity of the methodology
and principles underlying the proposed submission as opposed to
the correctness of the conclusions generated therefrom, this Court
does not believe that such language was intended to apply in the
context of the application of the polygraph technique. This is
because the context in which the Daubert case arose required
the Court to address only the validity of scientific principles
in the abstract. If such language were to apply in the context
of the polygraph technique, it would be completely at odds with
Daubert's mandate that the proposed scientific testimony
be validated, i.e., reliable.
DR. RASKIN'S BACKGROUND AND CREDENTIALS
At the hearing, the Court heard extensive testimony from Dr. Raskin
regarding the polygraph technique. [FN8] Dr. Raskin holds a Bachelor's
and Master's degree in psychology from the University of California,
Los Angeles. In 1963 he received his Ph.D. degree from the same
university in experimental psychology. He has been a professor
of psychology at the University of Utah since 1968. As a professor,
one of his duties is teaching. However, he devotes the greatest
amount of his time to conducting scientific research and publishing
scholarly works, primarily regarding the polygraph technique.
FN8. The discussion that follows in Sections IV through VIII refers
to Dr. Raskin's testimony unless otherwise noted.
Dr. Raskin's particular specialty is in the field of psychophysiology.
Psychophysiology is the scientific discipline that involves the
study of the relationship between psychological processes and
bodily reactions. Those trained in the field of psychophysiology
measure the physiological reactions of individuals in controlled
situations and from a knowledge of the situation and the stimulation
that is presented can make inferences about psychological processes
that the individual is experiencing. The polygraph is the primary
instrument used in the field of psychophysiology. Dr. Raskin has
been using polygraphs in his research, teaching and training since
he was a graduate student.
Dr. Raskin's credentials are impeccable. His 39-page curriculum
vitae consists primarily of citations to his voluminous publications
in professional journals, articles, papers presented at scientific
meetings and invited lectures on the subjects of psychophysiology
and the polygraph technique. Many of Dr. Raskin's publications
describe laboratory and field studies that Dr. Raskin has personally
conducted to determine the validity of the polygraph technique.
Dr. Raskin is a member of numerous professional and honorary organizations,
including the Society for Psychophysiological Research and the
American Psychology and Law Society. He has been elected a fellow
of the American Psychological Association, a fellow and charter
fellow of the American Psychological Society, a fellow of the
American Association for Applied and Preventive Psychology and
president of the Rocky Mountain Psychological Association.
As a graduate student, Dr. Raskin was initially extremely skeptical
about the use of the polygraph instrument to detect truth or deception.
Dr. Raskin's skepticism arose from his belief, shared currently
by opponents of the polygraph technique, that it would be extremely
difficult to determine truth or deception because there are no
known reactions that are unique to lying, as opposed to anxiety,
fear, stress or other kinds of emotional or cognitive events that
cause similar physiological reactions. In fact, Dr. Raskin originally
embarked upon his scientific research on the polygraph technique
in order to discredit and get rid of a technique that he believed
did not work and scientifically was not a very useful tool. However,
to his surprise the first study that he conducted, which by his
own admission was a "fairly primitive" study using "fairly
primitive" equipment, indicated an accuracy rate significantly
better than chance. From that point on Dr. Raskin became more
involved in this kind of research and it began to dominate his
scientific career.
THE POLYGRAPH INSTRUMENT
Dr. Raskin testified that the modern polygraph machine bears no
resemblance to the primitive instrument scrutinized by the New
York Court of Appeals in Frye. The machine scrutinized
in Frye was a standard blood pressure type device comprised
of a microphone and a cuff that measured the subject's blood pressure.
The examiner asked the subject a series of questions during which
time the examiner periodically took the subject's blood pressure.
By contrast, the modern polygraph machine is a sophisticated instrument
capable of continuously and simultaneously measuring the recording
various autonomic responses. [FN9] It measures respiration at
two points on the body; on the upper chest, the thoracic respiration,
and on the abdomen, the abdominal respiration. Movements of the
body associated with breathing are recorded such that the rate
and depth of inspiration and expiration can be measured. The polygraph
machine also measures skin conductance or galvanic skin response.
Electrodes attached to the subject's fingertip or palm of the
hand indicate changes in the sweat gland activity in those areas.
In addition, the polygraph measures increases in blood pressure
and changes in the heart rate. This measurement, known as the
cardiovascular measurement, is obtained by placing a standard
blood pressure cuff on the subject's upper arm. Finally, the polygraph
may also measure, by means of a plethysmograph, blood supply changes
in the skin which occur as blood vessels in the skin of the finger
constrict due to stimulation.
FN9. Autonomic responses are responses that one is generally unable
to control, such as blood pressure and the sweating of the palms.
The autonomic nervous system controls how the body adjusts to
changes in conditions. Because the autonomic nervous system is
relatively impervious to voluntary control, it is very difficult
for the subject of a polygraph exam to manipulate the outcome
of a polygraph test.
Even opponents of the polygraph technique readily concede that
a quality polygraph machine can accurately measure and record
these responses.
SCIENTIFIC THEORY UNDERLYING THE POLYGRAPH TECHNIQUE
According to Dr. Raskin, the underlying scientific theory upon
which the modern polygraph technique is based is derived from
the notion that if a person is threatened or concerned about a
stimulus or question, such as a question addressing the matter
under investigation, that this concern will express itself in
terms of measurable physiological reactions which the subject
is unable to inhibit and which can be recorded on a polygraph
instrument. A skilled examiner can then review the charts and
determine whether the subject is practicing deception or is being
truthful in answering the questions concerning the matter under
investigation.
1. Control Question Technique
Dr. Raskin stated the most widely used and accepted polygraph
technique is the control question technique. This particular technique
was designed to overcome the weaknesses of the relevant-irrelevant
technique. [FN10] The control question technique involves basically
two types of questions; control or comparison questions and relevant
questions that specifically concern the investigation at hand.
The control questions are designed to arouse the concern of the
innocent subject and it is expected that the subject will react
more strongly to them than to the relevant questions. The control
questions deal with acts that are similar to the issue of the
investigation. However, they are more general, cover long periods
of time in the life history of the subject, and are deliberately
vague. During the pretest review of the control questions, the
examiner carefully introduces the control questions to the subject
so that in answering these questions on the test the subject is
likely to be deceptive or uncertain as to the truthfulness of
his answers. In this way, the innocent subject will react more
strongly to the control questions than to the relevant questions.
On the other hand, guilty subjects who answer the relevant questions
deceptively will be more concerned about being detected in that
deception than with the control questions. Thus, it is the comparative
reactivity rather than the absolute reactivity to a particular
question that forms the basis for determining truth or deception.
FN10. Dr. Raskin explained that the relevant-irrelevant technique
is premised on the notion that attempts to deceive will produce
elevated physiological reactions to crime-relevant questions and
that those reactions will differ qualitatively or quantitatively
from reactions associated with truthful answers to irrelevant
or relevant questions. Thus, if a person shows stronger physiological
reactions to a relevant question, such as, "did you shoot
X?" than to the irrelevant question, such as, "is your
first name Y?" the examiner assumes that deception to the
question about shooting provoked involuntary autonomic processes
that caused the observed difference in the reactions. On the other
hand, if the reactions to the two types of questions are not observably
different, the examiner assumes that the subject did not lie when
he answered the relevant question. However, a variety of factors
other than deception might cause a subject to react more strongly
to questions about crimes of which they are accused than to innocuous
questions. Those reactions are indistinguishable from reactions
that occur as a result of deception. Primarily for this reason,
the technique has major deficiencies and the results of this technique
are subject to a great deal of error, particularly false positive
error. Although the relevant-irrelevant technique may accurately
detect all the guilty subjects, it erroneously labels almost all
the innocent subjects as deceptive.
Dr. Raskin testified the pretest interview is absolutely critical
to the accuracy of the polygraph results. First, as explained
above, the examiner must introduce the control questions in such
a way as to carefully manipulate the subject such that his answer
is deceptive or likely to be deceptive. Second, if the examiner
does not review the questions in advance, they will come as a
surprise and may elicit the same kinds of reactions that would
arise if the subject is being deceptive. Under such circumstances
it is impossible to distinguish between the two potential causes.
Third, if a question is asked for the first time on the test,
the subject may have to analyze the meaning of the question in
order to formulate an answer. This process of cognitive appraisal
can cause substantial reactions which may be indistinguishable
from a reaction caused by deception. Fourth, there may be terms
in the question that are ambiguous which if not clarified during
the pretest interview may cause a reaction indistinguishable from
a reaction caused by deception. It is extremely important that
all of these potential problems by eliminated in advance of the
test, otherwise the task of determining whether the subject's
reactions are produced by deception or by some other factor is
impossible.
The specific control question technique described above is known
as the probable lie control question technique. The drawbacks
of this technique are that it demands considerable manipulation
of the subject, it can be very invasive and is cumbersome to use.
2. Directed Lie Control Question Technique
Another type of control question technique and the technique employed
in this case is the directed lie control question technique. This
is a refined version of the probable lie technique. According
to Dr. Raskin, there is no fundamental difference in the underlying
scientific theories upon which the two tests are based. However,
the directed lie test is more simplistic and straightforward to
administer and is less intrusive than the probable lie technique.
The directed lie test includes questions to which the subject
is instructed to lie. These directed lie questions are introduced
after the administration of a number test during which the subject
chooses a number and is then instructed to lie about the number
chosen. The examiner tells the subject that the number test enables
the examiner to determine the subject's characteristic response
patterns when lying and when answering truthfully. The examiner
then explains that the directed lie questions will ensure that
the subject will be correctly classified as truthful or deceptive
on the subsequent polygraph test. It is the expectation that the
examiner sets that she can detect when the subject is practicing
deception that causes the guilty person to be more concerned with
the relevant questions than with the directed lie questions. As
he answers the relevant questions, which are the questions that
have put him in great jeopardy he will think to himself "oh,
the examiner knows what my pattern looks like when I'm lying because
she can see it on those questions to which she told me to lie
and she's going to see that this is the same pattern and I am
going to be in big trouble." On the other hand, the innocent
subject's concern is focused on the directed lie questions and
the subject often thinks very hard to make sure he has something
in mind when he answers those questions falsely so that it produces
an enhanced reaction.
As with the probable lie control question technique, it is the
differential reactivity of physiological responses to the control
and relevant questions respectively that enables the examiner
to determine truth or deception. Although the directed lie control
question technique is a relatively new technique, it is currently
used by the Drug Enforcement Agency, various military and intelligence
agencies, the Internal Revenue Service and the Department of Energy.
The polygraph institute devotes two weeks of instruction time
to the use of the directed lie control question technique.
LABORATORY AND FIELD STUDIES
1. Laboratory Studies
Laboratory and field studies have been conducted to test the scientific
hypothesis underlying the probable lie control question technique.
Dr. Raskin testified about specific studies that he has conducted.
These studies were conducted scrupulously in accordance with the
scientific method. Dr. Raskin estimated that hundreds of studies
have been conducted and reported in the literature. Those of which
are high quality studies number in the many dozens. On the whole,
these high quality studies support the hypothesis underlying the
control question technique. They indicate a slight difference
in false positive as opposed to false negative errors. The error
rate for the former is 10% and for the latter is 5%. Some of the
methodologically weaker studies indicate a false positive error
rate of 30-40%. Nonetheless, even the methodologically weaker
studies indicate results in the predicted direction.
Dr. Raskin has been directly involved with approximately 12-15
laboratory studies, also known as "mock crime" studies.
He testified about the methodology of these studies. Dr. Raskin
recruits people from the general community as participants. A
participant is assigned either a guilty or an innocent condition.
If the participant is assigned a guilty condition, he listens
to a tape and hears a very realistic description of a theft that
he is going to commit. Subsequently, he commits the theft on another
floor in the building. After the theft, the participant returns
and is taken for a polygraph exam. The participant is told that
his job is to convince the polygraph examiner that he didn't commit
the crime and if he does so he will receive a bonus of anywhere
between $10-$500. The participant is also told that if he fails
the test he will not get a bonus. The polygraph examiner who knows
nothing about the subject's guilt or innocence uses standard polygraph
techniques and standard interpretation techniques as the numerical
scoring technique(discussed below), to determine whether the subject
is being deceptive or truthful. All examiners are well-qualified
and experienced.
The participants who are assigned an innocent condition receive
general information about the theft and are instructed that they
didn't commit it. They leave the floor and then return. They are
told that their job is to convince the examiner that they didn't
commit the theft. If they do this successfully they will receive
a bonus. But if they fail, they will not. In this way, both types
of participants guilty and innocent are motivated to pass the
test just as in real life. These studies have produced accuracy
rates in excess of 90%. In this way, the laboratory tests tend
to confirm with a very high degree of accuracy the underlying
hypothesis of the polygraph technique. Specifically, the accuracy
rate for detecting guilty subjects is approximately 95% and for
detecting innocent subject is approximately 90%. That is, these
are slightly more false-positive errors than false-negative errors.
Thus, when a person passes the test, the examiner has higher confidence
in the accuracy of the result than if the person fails the test.
[FN11]
FN11. It is noteworthy that the principle criticism of these studies
is their underrepresentativeness of false-positive errors which
opponents theorize are more likely to occur in the real life situation.
Such criticisms are not relevant to this case because the error,
if any, was a false-negative error.
With respect to laboratory studies specifically involving the
directed lie control question technique, at least one study has
been conducted. Steven Horowitz, a doctoral student, conducted
a study to investigate the role of comparison questions in a systematic
way. This was a "mock crime" study that closely approximated
the field situation. Horowitz compared the effectiveness of three
techniques-the directed lie technique, the control question technique,
and the relevant/irrelevant technique. The relevant/irrelevant
test was administered to another group of subjects. These were
irrelevant or neutral questions to which the subjects were instructed
to answer "no" instead of "yes." In this way,
those questions were converted to a lie, to ascertain the effect
of simply lying on such a comparison question. Another group were
asked personal directed lie questions where the questions were
relevant to the subjects, such as, "have you ever told a
lie?" The fourth group were exposed to traditional probable
lie questions. The subjects were then run through a "mock
crime," as was described above, and then a polygraph test
was administered on each of them. Overall, the personal directed
lie had the best utility. It had the highest ability to differentiate
truthful and deceptive people accurately.
2. Field Studies
Dr. Raskin also testified about field studies he conducted to
determine the validity of the hypothesis underlying the probable
lie control question technique. The most difficult aspect of conducting
field studies is establishing criteria for determining ground
truth, i.e., truth or practicing deception. Dr. Raskin attempts
to establish a reliable criteria for determining ground truth
by finding a source of cases in which it is possible to determine
retrospectively who in fact was telling the truth and who was
lying. He inspects case files to find confessions where there
is no indication that the person confessed because of a plea bargain,
or otherwise falsely confessed.
In 1988, Dr. Raskin conducted a study with the U.S. Secret Service
where he gathered a sample of cases in which he used a combination
of confessions and very compelling physical evidence that confirmed
the confession. He then did one of three things: He either looked
at the original examiner's result and determined how well she
did in retrospect; had a polygraph examiner without knowledge
of the case facts perform a blind independent interpretation of
the charts, numerically score the charts and render a decision;
or he analyzed the charts with the use of computers. The U.S.
Secret Service study yielded an accuracy rate of approximately
94-95%.
Dr. Raskin also testified about another study conducted in Canada
by Drs. Iacono and Patrick which utilized cases from the Royal
Canadian Mounted Police. This study indicated that the original
examiners were 10% accurate on the later verified guilty subjects
and 90% accurate on the later verified innocent subjects. In addition,
Dr. Charles Honts conducted a recent study which yielded similar
results. [FN12] Again, as with the laboratory studies, the field
studies consistently show that when there are errors, the errors
are more likely to be errors where an innocent person fails the
test rather than a guilty person passing or beating the test.
FN12. Although the field studies described above have yielded
high accuracy rates, in 1983 the Office of Technology and Assessment
of the U.S. Congress concluded from a review of 10 field studies
on the validity of the control question technique that "the
research suggests that when used in criminal investigations, the
polygraph test detects deception better than chance but with significant
errors." First, it is noteworthy that the studies reviewed
took place prior to 1983. Second, the validity of this conclusion
has been challenged by Dr. Raskin because he questions the training
and skill of the polygraph examiners who conducted the tests and
the adequacy of the test methods and diagnostic procedures employed.
By contrast, the studies that Dr. Raskin has conducted have involved
properly trained and qualified examiners employing standard field
methods for conducting the tests and interpreting results.
Other types of field studies have been conducted to determine
the validity of the probable lie control question technique. However,
because they have less scientific validity and competent experts
in the field place less weight on them, the Court has not considered
these studies in determining the validity of the polygraph technique.
They include studies which utilize panels of experts who review
all evidence in the case to determine whether it is consistent
with guilt or innocence and studies which utilize judicial outcomes
as the criterion for determining ground truth. Although less scientifically
valid, these studies have nonetheless yielded results fairly consistent
with the confession studies.
Specifically, with respect to the directed lie control question
technique, at least one field study has been conducted. Dr. Raskin
and Dr. Honts published a field study in 1988 concerning the validity
of the directed lie technique. The purpose of the study was to
evaluate the effectiveness of the directed lie control question
technique in comparison to the standard probable lie control question
technique. The subjects consisted of an exhaustive sample of available
confirmed field cases that employed the directed lie control question
technique on criminal suspects. The twenty-five criminal suspects
had been referred to Dr. Raskin and Dr. Honts by both prosecution
and defense counsel between January 1983 and January 1987, for
polygraph examinations. The polygraph exams contained both directed
lie control questions and probable lie control questions. Confirmation
of guilt or innocence was determined without reference to the
polygraph outcomes and was based either on confession or on incontrovertible
physical evidence developed after the polygraph examination was
administered. They accumulated data over a period of several years
in which they were able to independently verify guilt or innocence,
i.e., whether or not the subjects were lying or telling the truth
on the polygraph tests. Thus, the guilt or innocence of the subjects
was determined by the use of an objective criterion developed
independently of the polygraph outcomes.
Dr. Raskin and Dr. Honts analyzed each other's charts blindly
and scored them with and without the directed lie question. They
found that when the directed lie question was included, it made
a noticeable difference in reducing the false positive errors.
That is, more innocent subjects now passed the test and the average
score of the innocent subjects increased significantly. With respect
to guilty subjects, there was basically no difference in terms
of the average score. This field study provides support for the
validity of the directed lie control question technique on criminal
subjects where the exam is properly conducted by a qualified examiner.
According to Dr. Raskin, the results from the laboratory and field
studies are consistent with the proposition that the directed
lie control question technique represents an improvement over
the traditional probable lie control question technique. It is
more standardized, easier to administer, requires less manipulation,
creates fewer problems for the subjects, and most importantly
it reduces the problem of false-positive errors inherent in the
probable lie control question technique.
SCORING TECHNIQUES
Dr. Raskin testified that the earliest method for evaluating polygraph
results was called the "global" method. This method
continues to be used by some examiners. It is comprised of the
examiner's overall impression of the charts plus other factors,
including the examiner's "clinical impressions" of the
subject during the pretest interview and examination. Thus, the
examiner considers both the subject's demeanor as well as the
physiological reactions recorded on the machine. The obvious drawback
of this method is its subjectivity.
By contrast, the numerical method of evaluating polygraph results,
introduced in 1960, helps to ensure a rigorous, semi-objective
evaluation of the physiological information contained in the charts,
thereby safeguarding against examiner bias. This method involves
a systematic procedure of applying a set of scoring rules, writing
down numbers and adding them up in order to reach a conclusion.
The examiner inspects the relative size of reactions to the relevant
and control questions for each of the physiological measurements
and assigns a number to that comparison reflecting the amount
of observed difference. If there is no noticeable difference,
the examiner assigns a zero. If there is a one, two or three depending
on the degree of the difference. The examiner assigns a positive
number if the reaction to the comparison question is greater than
the reaction to the relevant question and a negative number if
the reaction to the relevant question is greater. This method
is the most widely used method and has been the subject of the
most research.
Another method of quantitatively evaluating test results is by
computer. The specific computer scoring method used in this case
was developed by Dr. Raskin and has been subjected to scientific
investigation. It works by an analytic solution using a standard
computer program. The examiner simply runs the program and the
computer makes tens of thousands of calculations within five to
then seconds. This scoring method is completely objective. [FN13]
FN13. The particular computerized scoring method utilized in this
case has been used by various organizations and government agencies,
including the U.S. Secret Service, the Department of Defense,
the CIA, law enforcement agencies outside the federal government
in different parts of the country, the Canadian Police College,
and other foreign governments.
CHALLENGES TO THE POLYGRAPH TECHNIQUE
Dr. Raskin testified that several challenges have been raised
to the polygraph technique. Some of these challenges are valid
but inapplicable in this case. Other challenges, when closely
scrutinized are without merit and, in fact, have been empirically
discredited.
1. Examiner Incompetence and Lack of Integrity
The competence of the examiner is crucial in arriving at reliable
polygraph results. This is so because it is the examiner who determines
the suitability of the subject for testing, formulates proper
test questions, establishes the necessary rapport with the subject,
stimulates the subject to react, and interprets the charts.
Dr. Raskin has written that one of the major problems with polygraph
evidence is the "sorry state of training for polygraph examiners."
The American Psychological Association has also commented on the
need for improved training of polygraph examiners noting that
those administering polygraph tests often have limited training
and expertise in psychology and in the interpretation of psychophysiological
measures. This concern with respect to the general competence
of polygraph examiners is not relevant in this particular case.
Here, the exam was conducted by Dr. Raskin himself, perhaps the
world's leading expert in the field of autonomic psychophysiology
and on the polygraph technique.
Another challenge raised with respect to examiners, is the ability
of a polygraph examiner to manipulate the subject and the examination
in such a way as to produce a desired result. Although this is
certainly a valid concern, it is not relevant in this case. Dr.
Raskin complied with the New Mexico Rule of Evidence 11-707, which
permits admission of polygraph results provided that certain conditions
are met. One of those conditions is that the exam be either audio
or visually tape recorded. Because Dr. Raskin complied with this
condition and defense counsel provided a tape to the Government,
if any attempts to manipulate the subject were made, they would
have been revealed on the tape and the Government would have brought
them to the Court's attention. Moreover, it cannot seriously be
argued that a person of Dr. Raskin's esteem and integrity would
engage in such unethical practices.
2. Examiner Shopping
Another challenge raised is the problem of "examiner shopping."
If enough tests are conducted, it is argued that a psychophysiological
habituation to the relevant test question or perhaps even chance
may result in a guilty subject eventually passing the test. [FN14]
Thus, if only the final test, the one passed is presented to the
jury the result would be misleading. Although this may be a valid
concern, it is inapplicable here. There is absolutely no indication
that this kind of examiner shopping occurred in this case. In
fact, Dr. Raskin testified that to his knowledge this was the
only polygraph test which was conducted on the Defendant.
FN14. New Mexico Rule of Evidence 11-707 has addressed this concern
by requiring as a precondition to the admissibility of polygraph
evidence that all polygraph examinations conducted on the subject
the disclosed.
3. Certain Personality Types can Defeat the Test
Dr. Raskin stated that some opponents of the polygraph technique
have suggested that people with certain personality types, such
as psychopaths can beat the polygraph test. However, this hypothesis
has been invalidated. Dr. Raskin has personally conducted several
studies to determine whether psychopaths can beat the polygraph.
His studies have indicated very clearly that psychopaths cannot
beat a properly conducted test. Dr. Iacono has also conducted
a study with some variations and found a similar pattern although
the study did not yield such high accuracy rates and yielded considerably
more false-positive errors. Dr. Iacono concluded that the polygraph
technique is at least as effective with psychopaths as with other
individuals.
4. Use of Drugs as a Countermeasure
Another frequently raised challenge to the polygraph technique,
according to Dr. Raskin, is that drugs may be used to defeat the
test. It has never been demonstrated that drugs can be an effective
countermeasure against the control question technique. Dr. Raskin
explained that this is so because the control question technique
requires differential reactivity between the control and the relevant
questions and there is simply no drug that can selectively reduce
the reaction to relevant questions while leaving the control questions
unaffected. At worst, in theory the effect of the drug may make
the result of the test inconclusive. However, according to Dr.
Raskin the studies indicate that the use of drugs does not interfere
with the ability of the control question technique to accurately
detect deception.
5. The Friendly Polygrapher Hypothesis
A theory that has been posited against the admission of polygraph
results by defendants in the "friendly polygrapher"
theory. This theory, warmly embraced by many courts, was first
suggested by Dr. Martin Orne, a psychiatrist-psychologist in Pennsylvania.
Dr. Orne hypothesized that if a person takes a polygraph test
on a confidential basis where the formal understanding is that
if he passes the test it may be helpful to him, but if he fails
the test it falls under attorney-client privilege and cannot be
disclosed, that such person unconcerned with failing the test
would be able to beat the test. According to Dr. Raskin, this
hypothesis has never been validated and, in fact, the only research
bearing on it does not support it. He testified that all the accumulated
experience of conducting confidential tests for defense attorneys
shows that people who are guilty fail the test. Furthermore, he
explained that on a theoretical basis, Dr. Orne's hypothesis does
not make sense because in order for it to work, the subject would
still have to react to the control questions. If the subject is
not worried or concerned about the outcome of the test, then the
subject would not react anymore to the control questions than
to the relevant questions.
In practical terms, the theory does not make sense either, because
there is much at stake for a person in that situation even if
he believes that the results cannot be used against him. It is
clear that such motivation is extremely compelling when it is
considered that in the laboratory setting it is known that the
prospect of a $5 bonus produces deceptive accuracy on guilty people
on the order of 95 percent. Such subjects are very concerned about
failing the test. First and foremost, their liberty is at stake.
If they pass the test they will be exonerated. Second, the test
itself may cost a substantial amount of money. Third, there is
always the concern of what their attorney will think about them
if the polygraph results indicate that they are lying and, therefore,
have been lying to their attorney. In sum, there is plenty of
incentive to pass the test; much more than the potential of earning
$5, $10 or $500 dollars in a mock crime study.
6. Physical Countermeasures
Dr. Raskin testified that another challenge raised to the polygraph
technique is that a person can beat the test by engaging in physical
countermeasures. He stated that research indicates that if a person
is given specific training by an expert on how to employ certain
kinds of subtle, unobservable maneuvers, if the test process is
explained to them, and if they practice the techniques while being
observed by an expert, a substantial proportion of them, possibly
up to 50%, can produce an erroneous result on the polygraph test
in a mock crime situation. Such maneuvers include unobtrusively
biting the tongue lightly to produce reactions on control questions,
tensing muscles in the legs to produce reactions on the control
questions, or engaging in mental arithmetic by subtracting backwards
by sevens implicitly on control questions. Under such circumstances,
Dr. Raskin explained experts cannot even detect that the subject
has been engaging in countermeasures. However, he clarified that
merely providing a subject with extensive information about countermeasures
does not enable a subject to effectively use them. Without specialized
hands-on training from a sophisticated expert, attempts to defeat
the test by engaging in countermeasures are invariably unsuccessful.
The court recognizes that countermeasures can be used to defeat
polygraph tests without detection. However, because an individual
must receive highly specialized hands-on training in order to
successfully engage in countermeasures, the possibility that a
subject will succeed in such measures is very slight. This possibility
is not sufficient to render the entire polygraph technique invalid.
Nor does it invalidate the application of a specific test. Rather,
it is a factor that can be considered as going to the weight of
the evidence rather than to its admissibility.
APPLICATION OF DAUBERT TO THIS CASE
[2] The first inquiry under Daubert requires the court
to determine whether the testimony regarding polygraph results
is based on scientific knowledge. Essentially, the Court must
determine whether the reasoning underlying the testimony is scientifically
valid. In addressing this issue, the Court must consider several
nonexclusive factors delineated below.
1. Whether The Directed Lie Control Question Technique Can Be And Has Been Tested.
The traditional "probable lie control question technique"
and the refined version of that technique, "the directed
lie technique" can be and have been tested. Unlike an endeavor
such as astrology, the scientific validity of which can never
be empirically verified, it is possible to test these polygraph
techniques. There have been numerous field and laboratory studies
conducted to determine the validity of the traditional probable
lie control question technique and there have been at least two
studies conducted to determine the validity of the directed lie
control question technique. One field study and one laboratory
study. Thus, not only is it possible to test whether these polygraph
techniques can accurately detect truth or deception but, in fact,
the techniques have actually been tested.
2. Whether The Directed Lie Control Question Technique Has Been Subjected To Peer Review And Publication
There have been hundreds of articles published on the traditional
probable lie control question technique, from which the directed
lie control question technique has evolved. Many of these articles
have been published in peer-reviewed journals and otherwise subjected
to the scrutiny of the scientific community. There have been considerably
fewer publications addressing the directed lie control question
technique, due to the fact that this technique has emerged relatively
recently. However, the technique has been published in at least
two peer-reviewed journals and otherwise subjected to the scrutiny
of the scientific community. An article written by Dr. Honts describing
a laboratory and field study involving the technique, was published
in Current Directions in Psychological Science. This journal
is published by the premier psychological society in the world,
the American Psychological Society, which has in excess of 16,000
members each of whom have very strong scientific credentials.
The article was invited by the editor, and it received thorough
reviews. In fact, some revisions were made in response to the
reviews. Another article addressing the directed lie control question
technique and written by Dr. Raskin and Dr. Honts was published
in the Journal of Police Science and Administration. Both
Dr. Raskin and the Government's expert witness, Dr. Gordon Barland,
characterized this journal as a "peer reviewed" publication.
[FN15] Finally, a laboratory study concerning the directed lie
control question technique conducted by Steven Horowitz has been
subjected to peer review. This study was presented at the Society
for Psychophysiological Research meetings after acceptance to
the program following rigorous peer review. In addition, an abstract
of the paper containing all the findings of the study was published
in the Journal of Psychophysiology, a peer-reviewed journal.
FN15. Dr. Barland is the chief of external research at the Department
of Defense Polygraph Institute. He studied under Dr. Raskin at
the University of Utah where he received a Master's and Ph.D.
degree in Experimental Psychology (Human Psychophysiology).
The fact of publication in and of itself is significant, because
it serves to expose the technique to the scrutiny of the scientific
community. The Daubert Court considered such exposure to
be a "component of good science." However, the fact
that articles concerning the directed lie control question technique
have been published in peer-reviewed journals is particularly
significant given the substantial guarantee of reliability that
attaches to such closely scrutinized articles.[FN16]
FN16. See Howard A. Denemark, The Search For "Scientific
Knowledge" in Federal Courts in The Post-Frye Era:
Refuting the Assertion That "Law Seeks Justice While Science
Seeks Truth." 8:2 High Technology Law Journal 235,
240 (1993).
3. What is the Known or Potential Rate of Error?
Sufficient testimony was presented through Dr. Raskin to satisfy
the Court that the known rate of error, where exams are properly
conducted, where the numerical scoring system is employed, and
where the examiner is highly qualified, is approximately 10% with
innocent subjects, i.e., false-positive errors, and 5% with guilty
subjects, i.e., false-negative errors. Consistently, the studies
have indicated that the percentage of false-positive errors is
greater that false-negative errors. Thus, in this particular case
where the error, if any was a false-negative error, the Court's
confidence in the reliability of the result of this test is greater
than it would be had the defendant been diagnosed as deceptive/guilty.
Although, the directed lie technique is relatively new, preliminary
studies have indicated that it has at least as high an accuracy
rate as the probable lie control question technique and in fact
appears to reduce the number of false-positive errors.
4. The Existence and Maintenance of Standards Controlling the Technique's Operation.
Standards exist which control the polygraph technique's operation.
More than twenty states, including New Mexico, have licensing
regulations. Such regulations are intended to ensure that polygraph
examiners will be sufficiently qualified to competently administer
polygraph tests. Dr. Raskin, the examiner in this case, is licensed
in at least Utah and New Mexico. These particular states have
very extensive licensing requirements for obtaining and maintaining
a license.
In the federal sector, in order to practice as a polygraph examiner
for an agency, an individual must attend a polygraph school, usually
the Department of Defense Polygraph Institute, and must receive
a certificate before he can administer polygraph tests. In addition,
most of the agencies have quality control programs where the examiners'
work is periodically reviewed.
New Mexico Rule of Evidence 11-707, establishes standards for
the admission of polygraph evidence. It provides that polygraph
evidence is admissible only where the following conditions are
met: the examiner must have had at least 5 years experience in
conducting polygraph tests and 20 hours of continuing education
within the past year; the polygraph examination must be tape recorded
in its entirety; the polygraph charts must be scored quantitatively
in a manner generally accepted as reliable by polygraph experts;
all polygraph materials must be provided to the opposing party
at least 10 days before trial; and all polygraph examinations
conducted on the subject must be disclosed. In this case, Dr.
Raskin and defense counsel complied with all conditions of Rule
11-707.
5. General Acceptance in the Relevant Scientific Community.
Although the polygraph test has been plagued with controversy
both in the legal and scientific communities since its infamous
appearance in Frye, it now appears that there is general
acceptance of the control question polygraph technique when it
is administered properly by a qualified examiner. Both Defendant's
and the Government's expert witnesses testified that amongst more
than a majority of experts in the field of autonomic psychophysiologists
the polygraph has attained acceptance. [FN17] In the broader field
of psychophysiology, the technique also appears to have attained
a significant degree of acceptance.
FN17. Autonomic psychophysiologists specifically deal with autonomically
controlled measurements of the human body, as discussed above.
Two surveys have been conducted amongst a sample of psychophysiologists.
One in 1982, the Gallup survey, and one in 1992, the Amato Survey.
The surveys indicated that of those surveyed, 62% and 60% respectively,
of psychophysiologists believed that the control question polygraph
technique was a useful tool when considered with other evidence
for assessing truth or deception. Significantly, the 1992 Amato
survey indicates that acceptance of the technique amongst those
who consider themselves well-informed of the literature is considerably
higher. Eighty percent of those psychophysiologists who considered
themselves well-informed of the literature believed that the modern
polygraph technique was useful when considered with other evidence.
The Court considers this figure to be significant, because acceptance
or rejection of a technique by those who are well-informed about
a particular technique is a significant indicator of the scientific
validity/evidentiary reliability of the technique. On the other
hand, acceptance or rejection of a technique by the uninformed
or little informed is a poor indicator of the scientific validity
of a given technique. Thus, for purposes of meaningfully accessing
the scientific validity of the control question technique, this
Court has considered the degree of acceptance amongst well-informed
members of the relevant scientific community. The Court finds
the high degree of acceptance within this group to be particularly
indicative of reliability.
However, the Court notes that even within the relevant scientific
community in general, the technique has achieved acceptance amongst
a majority of the community. Far from having attracted only "minimal
support" within the relevant scientific community, see Daubert,
--U.S. at ---, 113 S.Ct. at 2797, the modern polygraph technique
enjoys substantial approval.
6. Whether The Polygraph Technique In This Case Was Properly Applied.
Although the Daubert Court did not specifically address
whether the proper application of a known scientific technique
is an issue bearing on the weight or admissibility of the evidence,
this Court believes that the reliability inquiry set forth in
Daubert mandates that in the context of polygraph examinations,
where a party seeks to introduce expert testimony concerning the
results of the test, the Court must embark upon a case specific
inquiry to assure that the results are premised on a reliable
application of the technique.
Both the Defendant's and the Government's expert witnesses testified
that when properly conducted, the polygraph technique produces
a high rate of accuracy. The qualification "when properly
conducted" is of quintessential significance. It is clear
from the studies and even proponents of the polygraph technique
readily concede that the polygraph technique produces reliable
results only where certain conditions exist, such as administration
of the test by a well trained, experienced and competent examiner,
the utilization of the control question technique and the utilization
of a quantitative scoring system. The qualifications and experience
of the examiner are of particular significance because the pretrial
interview must be properly conducted and the questions must be
properly framed in order to produce reliable results.
Various field and laboratory studies have validated the polygraph
technique. They have indicated that the polygraph technique has
the ability to determine truth or deception with a high degree
of accuracy. However, the examiners in these studies were well-qualified
and experienced, employed the control question technique and the
numerical system of scoring. It is beyond dispute that if any
of these conditions had been lacking, the studies would not have
produced such high accuracy rates. [FN18] Thus, since the accuracy
of the results in a particular case is so dependent on the existence
of certain conditions at the time the test is administered, it
is incumbent upon a court to scrutinize the particular application
of the polygraph technique employed in each case. [FN19]
FN18. In fact, according to Dr. Raskin, this was precisely the
reason why other studies were less methodologically sound and
yielded significantly lower accuracy rates.
FN19. New Mexico Rule of Evidence 11-707 embodies the concern
with the reliability of polygraph results where various conditions
guaranteeing the trustworthiness of the results are not present.
See United States v. Gipson, 24 M.J. 246, 253 (1987) (depending
on the competence of the examiner, the suitability of the examinee,
the nature of the particular testing process employed, and such
other factors as may arise, the results of a particular examination
may be as good as or better than a good deal of expert and lay
evidence that is routinely and uncritically received in criminal
trials).
To permit expert testimony about polygraph test results where
such essential conditions are lacking, is to permit the admissibility
of unreliable, untrustworthy evidence. Thus, if a court determines
that in a particular test the examiner was not well-qualified,
and thereby failed to properly conduct the pretest interview or
adequately interpret the results, the trustworthiness of the procedures
employed and, therefore, the results of the test are seriously
called into question. Under these circumstances, the underlying
basis of the expert's testimony is simply not "supported
by appropriate validation." See Daubert, --U.S. at
--, 113 S.Ct. at 2795. The field or laboratory studies that validated
the underlying hypothesis do not extend to validate the specific
test in a particular case, unless the procedures utilized in the
specific test replicate or substantially replicate those employed
in the studies.
Having determined that Daubert mandates a case specific
inquiry in the context of the application of the polygraph technique,
the Court now addresses the application of the technique in this
case.
In this case, Dr. Raskin conducted the polygraph examination.
There is no question that Dr. Raskin is a well-trained, highly
qualified and experienced polygraph examiner. His experience and
training as a polygrapher is critical to the court's confidence
in the accuracy of the results of this test.
The specific technique employed was the directed lie control question
technique which is a refined version of the probable lie control
technique. This technique appears to be at least as accurate as
the probable lie control question technique and tends to be more
accurate with respect to diagnosing innocent subjects. The error
rates for diagnosing guilty subjects, i.e., false-negative errors,
is approximately 5% while the error rate for diagnosing innocent
subjects, i.e., false-positive errors, is approximately 10%. In
this case, if any error occurred it was a false-negative error.
The Court's confidence in the accuracy of the result is raised
because the Defendant has been diagnosed as truthful/innocent.
In addition, Dr. Raskin employed the numerical scoring method
for evaluating the test results. As discussed more fully above,
the numerical scoring system is the most widely used system for
evaluating test results and is considered to have a high degree
of reliability, principally because it has removed much of the
subjectiveness associated with the more primitive global scoring
technique. Dr. Raskin arrived at a score of +29. In order to arrive
at a truthful result the subject must score at least a +6 total.
Thus, the total score of +29 represents a very clear result.
Dr. Raskin also utilized the computerized scoring method. Thus
method ensures a completely objective analysis of the test results.
In this case, the computer indicated that the probability of truthfulness
was approximately .95 or 95 chances in a hundred, that these charts
represented a result from a person who was being truthful. In
light of the fact that both the numerical and computerized scoring
systems were employed, the Court's confidence in the accuracy
of the results is high.
Further raising this Court's confidence in the accuracy of the
polygraph results in this case was the fact that a second highly
qualified polygraph examiner, Dr. Honts, independently reviewed
and scored Defendant's polygraph charts and arrived at a score
substantially similar to Dr. Raskin's. He calculated a score of
+32. Furthermore, the polygraph exam was taped and a copy of the
tape was provided to the Government. This enabled opposing counsel
to independently review the quality of the examination and determine
whether it was conducted properly.
The Government did not challenge any aspect of the examination
other than asserting its position that the Defendant may have
been engaging in countermeasures, thereby undermining the accuracy
of the result. The Government's own expert, Dr. Barland, reviewed
the polygraph charts and determined that the result was inconclusive
based on his assessment that the Defendant may have been engaging
in countermeasures. Although the issue of countermeasures is a
legitimate issue which deserves scrutiny, the Court does not consider
the danger that a defendant may have engaged in countermeasures
to be sufficiently great to invalidate the underlying theory of
the polygraph technique or to invalidate the result in a particular
case. This is so, because to successfully engage in countermeasures,
an individual must receive highly specialized hands-on training.
Under these circumstances when the individual does engage in countermeasures,
the examiner cannot even detect it. Spontaneous and or untrained
attempts at engaging in countermeasures do not work. Given the
very remote possibility that an individual has received the kind
of specialized training necessary to successfully defeat a polygraph
exam in this way, the Court view the issue of countermeasures
as one going to the weight of the evidence rather than to its
admissibility. [FN20]
FN20. The Court views the issue of countermeasures as analogous
to issues which arise in the context of other scientific techniques
such as defeating a urine test by ingesting certain foods and
the phenomenon of malingering on a psychiatric test. The mere
possibility of malingering, for example, does not render the testimony
concerning the defendant's mental condition inadmissible but rather
is an issue for cross-examination and is an issue upon which competent
experts in the field may disagree.
7. Whether the Testimony will "Assist the Trier of Fact."
In addressing Daubert's second prong, the relevance prong,
the Court must ask whether Dr. Raskin's testimony will assist
the trier of fact. That is, whether his testimony relates to an
issue that is actually in dispute and whether such testimony provides
a valid scientific connection to the pertinent inquiry. - U.S.
at -- - -- , 113 S.Ct. at 2795-96.
A critical issue in this case is whether Defendant knowingly failed
to report certain items of income on his income tax returns. Dr.
Raskin's testimony that Defendant's answers to the relevant questions
regarding his knowledge and intent are consistent with a truthful
polygraph outcome, is pertinent to this issue. Thus, his testimony
"relates to an issue that is actually in dispute." Id.
Furthermore, in this case the testimony provides a "valid
scientific connection to the pertinent inquiry." [FN21] Id.
FN21. This Court examined the specific application of the polygraph
technique under Daubert's reliability prong. However, scrutiny
of the specific application of a known scientific technique is
also appropriate under Daubert's relevance prong. As the
Tenth Circuit noted in United States v. Davis, 40 f. 3d.
1069 (10th Cir. 1994), "improperly applied science
cannot assist the trier of fact.." Id. at 1075, n.
6. Although the Davis Court suggested that a trial judge's
review of the proper application of a scientific technique is
required only under Daubert's second prong, this Court
believes that in the context of polygraph examinations, such inquiry
impacts both prongs of Daubert. It is precisely because
improper application of the polygraph technique produces substantially
less reliable results that testimony regarding such results does
not assist the trier or fact.
In conclusion, having determined that Dr. Raskin's testimony is
based on "scientific knowledge" that "will assist
the trier of fact" the Court finds that such testimony is
sufficiently reliable and relevant to be admissible under Fed.R.Evid.
702.
ADMISSIBILITY UNDER FED.R.EVID. 403
[3] The Court finds that Dr. Raskin's testimony is admissible
under Fed.R.Evid. 403. The expert testimony is highly probative
of a critical fact in issue, i.e., whether the Defendant possessed
the willful mens rea at the time he failed to report certain items
of income. This is so, because the accuracy of the test results
is approximately 95%. In light of such an elevated accuracy rate,
the results of the test are highly probative of whether Defendant
did, in fact, realize that the items he failed to report should
have been reported on his income tax returns.
On the other hand, the testimony in this case is not unduly prejudicial.
There is little danger that the jury will consider the polygraph
technique to be shrouded with "an aura of infallibility"
given that Dr. Raskin himself will testify that the technique
is not infallible. Moreover, any arguments that the jury will
be unable to assess the true validity of the polygraph technique
because of the "aura of infallibility" that surrounds
the scientific testimony has no empirical basis. Dr. Raskin testified
that studies and experience have indicated that juries are not
overwhelmed by polygraph evidence and are, in fact, cautious and
careful in assessing polygraph evidence.
Furthermore, the Government will be afforded an opportunity to
cross-examine Dr. Raskin and present its own expert witness to
refute any of Dr. Raskin's testimony relating to the polygraph
technique in general or to the specific application of that technique
in this case. Thus, under the facts of this case, the Court concluded
that the probative value of Dr. Raskin's testimony is not substantially
outweighed by the danger of unfair prejudice.
CONCLUSION
For the aforementioned reasons, the Court finds that the expert
opinion testimony regarding the polygraph results of Defendant
Galbreth is admissible. However, because the evidentiary reliability
of opinion testimony regarding the results of a particular polygraph
test is dependent upon a properly conducted examination by a highly
qualified, experienced, and skillful examiner, nothing in this
opinion is intended to reflect the judgment that polygraph results
are per se admissible. Rather, in the context of the polygraph
technique, trial courts must engage upon a case specific inquiry
to determine the admissibility of such testimony.
WHEREFORE, IT IS ORDERED that Defendant's Motion to Admit Expert
Opinion Evidence Regarding Polygraph Results be and hereby is
GRANTED.
END OF DOCUMENT
First posted on the Polygraph Law Resource Pages on 3 June 1997
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