5
1 P R O C E E D I N G S
2 March 9, 1995
3 THE COURT: We're here this morning in the
4 matter of the United States of America versus William
5 Galbreth. The defense has filed a motion for admission
6 of expert opinion evidence regarding polygraph tests.
7 Are the parties ready to proceed?
8 MR. DANIELS: On behalf of the defense, yes,
9 Your Honor.
10 MS. HIGGINS: Your Honor, Mary Higgins on
11 behalf of the United States. We are ready to proceed.
12 THE COURT: Thank you.
13 MR. DANIELS: May it please the Court, before
14 we begin we have on both sides prepared an exhibit list
15 with an index and copies of the exhibits for the
16 convenience of the Court. I assume that neither side at
17 this point is offering them as evidence, but I think it
18 may be helpful just to offer them up to the Court to see
19 what we're talking about.
20 And when the time comes, I'll offer it and
21 we'll have this reference material. And I would hand up
22 at this time the defense exhibit list with an index on
23 the front and copies of the exhibits. I understand that
24 some of our copies some of these same materials that
25 were earlier presented to the Court may have not been
BETTY J. LANPHERE
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1 duplicated on both sides. We have checked these and
2 they were all done properly.
3 MS. HIGGINS: Your Honor, the Government has
4 already given your clerk a proposed exhibit list and a
5 set of exhibits.
6 THE COURT: Thank you.
7 MR. DANIELS: I would like to make a brief
8 opening statement if I may and I invite the Court to cut
9 me off if I am going over things that are unnecessary.
10 I would like to place this in a little bit of context.
11 This is a tax evasion case. The indictment charges
12 Dr. Galbreth, an Albuquerque dentist, with willful
13 evasion of income taxes.
14 And, of course, under the Cheat case which
15 controls in terms of the law the mens rea element and
16 the jury instructions in this case, the willfulness
17 element requires that the jury determines whether the
18 evidence shows among other things that the defendant
19 knew of his lawful duty regarding the proper tax
20 reporting of the internal revenue code and statutes and
21 so on and that he voluntarily and intentionally violated
22 that known duty.
23 In this case, Your Honor, the facts that are
24 really an issue are whether Dr. Galbreth intentionally,
25 willfully withheld information that he knew should have
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1 been reported to the Internal Revenue Service that was
2 relevant to his tax liability. He had an office
3 arrangement where he would rent office space to other
4 dentists and pay hygienists salaries and they would then
5 reimburse him for his share.
6 It turned out that the reimbursement part
7 which he considered repayment of a loan to him in
8 essence was not reported by his accountant as income on
9 his tax return. Dr. Galbreth never thought of those
10 repayments as income. The accountant submitted an
11 affidavit that is Exhibit A in our motion and brief and
12 also Exhibit A in the exhibits here. We have maintained
13 the lettering system of the exhibits to the motion of
14 brief, Your Honor, in our exhibits that we're offering
15 at trial here.
16 And the reason for submitting the affidavit
17 of Mr. Reynolds, the accountant, is to show the factual
18 dispute that is going on. That is essentially what
19 we're going to offer is the accountant's testimony and
20 Dr. Galbreth's testimony will coordinate with that. And
21 the issue then is whether Dr. Galbreth knowingly,
22 willfully hid information from his accountant knowing
23 that this was something that he had to report.
24 The defense is not going to dispute that
25 under the dollar provisions of the Internal Revenue Code
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1 and laws that that reimbursement was properly classified
2 as income because it turns out the accountant was
3 deducting the entire rent and salaries and so on as
4 business expenses and so these reimbursements should
5 have been shown to offset that. But the real critical
6 issue is what his knowledge and intent were.
7 In addition to other things we have done in
8 this case, we contacted Dr. David Raskin of the
9 University of Utah, an expert that Ms. Higgins has
10 previously identified in court proceedings as the
11 preeminent world expert in polygraphy. I have the
12 transcript of that attestation that we may offer under
13 Rule 801 D as the admission of the United States through
14 its representative under the case law.
15 I don't think there is going to be a dispute
16 about his qualifications to testify or to administering
17 an exam. Dr. Raskin polygraphed Dr. Galbreth on what I
18 think are beyond dispute the key factual issues in
19 dispute in the case. And we have submitted the
20 polygraph results with our motion and brief and Exhibit
21 C of the brief as well as Exhibit C in our exhibit list
22 which contains a full report, the questions that were
23 asked, all the questions that were asked and the report
24 sets forth the four relevant questions that are set
25 forth here on page 2 of the letter report.
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1 The first one was, "Was it your understanding
2 before the IRS audit began that all required taxes had
3 been paid on the rent and salary payments you had
4 received from other dentists?"
5 Answer: "Yes."
6 Dr. Raskin concluded that was a truthful
7 answer.
8 Relevant 2, "Did you knowingly attempt to
9 avoid income taxes by not reporting the rent and salary
10 payments you had received from other dentists?"
11 Answered, "No."
12 Dr. Raskin concluded it was a truthful
13 answer.
14 Relevant 3, "Did you fail to report those
15 salary and rent payments from other dentists in order to
16 reduce the income taxes you would have to pay?"
17 Answer: "No."
18 Dr. Raskin concluded that was a truthful
19 answer.
20 And Relevant 4, "When Harold Reynolds told
21 you that you had to report those rent and salary
22 payments from other dentists, was that the first time
23 you knew you should have reported them?"
24 Answer: "Yes."
25 Dr. Raskin concluded that was a truthful
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1 answer by Dr. Galbreth. Just a moment of explanation on
2 Relevant 1 and Relevant 4 before I move on, Your Honor.
3 When the IRS audit began and the accountant started
4 looking into the situation, the accountant said at
5 that time told him, you need to be paying taxes on these
6 other these repayments. And that is why Relevant 1
7 and 4 timed it to the IRS audit long after the fact and
8 the advice from the accountant in connection with that
9 audit.
10 We provided the polygraph data to the United
11 States Attorney's Office. Basically our purpose in
12 having the exam taken was twofold. First, to attempt to
13 persuade the United States Attorney's Office that there
14 was no criminal intent here.
15 Second, to present it in an evidentiary
16 fashion if that failed. We presented that to the United
17 States Attorney's Office late last year. The efforts of
18 voluntary resolution failed. We then talked to them
19 about procedures for bringing the issue before the Court
20 without disrupting the trial on the Daubert hearing,
21 which I think will take at least a full day given the
22 fact that this is a novel issue in the postDaubert era
23 and determine that the best way to present this was by a
24 motion to determine the admissibility pretrial. I think
25 Daubert itself suggests it may be necessary.
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1 The Daubert standard basically set up a whole
2 new regime for considering expert testimony. I think it
3 is interesting that the Frye test which was overruled
4 was a test that has been cited time and time again as
5 the authority for rejecting polygraph tests in federal
6 court. Frye is now over 70 years old and not only has
7 the law changed a lot since then but the evolution of
8 the autonomic measuring devices that were used in a very
9 crude fashion in the Frye what they call a lie
10 detector test it wasn't even a polygraph in those
11 days. It was just a measure of blood pressure. It was
12 a very crude precursor to the modern polygraph. A lot
13 has been changed since then.
14 We will present Dr. David Raskin to testify
15 as to his research, the research in the field and all of
16 the Daubert factors that have been established by
17 developments particularly in the last few decades with
18 respect to the use of the modern polygraph, which is
19 used widely across the United States including
20 extensively by our own United States government and
21 federal law enforcement prosecution agencies.
22 I want to mention just briefly some factors
23 we will be touching on to show that the Daubert
24 standards have been satisfied here because the Daubert
25 cases I think what we have to keep going back to to
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1 determine the admissibility here are the cases that are
2 preDaubert are really of little significance in
3 determining whether this expert testimony is scientific
4 evidence and satisfies the Daubert standards.
5 Justice Blackman wrote the opinion for the
6 Court and he began by saying that Frye was superseded by
7 the federal rules of evidence on expert testimony. That
8 the austere, in the words of the Court, general
9 acceptance standard general acceptance in the
10 scientific community of Frye is both absent from and
11 incompatible with the federal rules of evidence on
12 expert testimony.
13 Basically experts can testify as to relevant
14 matters that may be helpful to the trier of fact. And
15 relevance under Rule 401 is basically a liberal
16 standard. Is a fact more likely or less likely as a
17 result of introduction to the evidence than it would
18 have been without it? And the Court went on in Daubert
19 to say something that I think is a great moment in the
20 hearing today and that is that we must not distrust the
21 adversary process and the jury or judicial fact finders.
22 That the rules were designed to depend
23 primarily on the lawyer adversaries and sensible triers
24 of fact to evaluate conflicts. That you don't evaluate
25 conflicts in determining admissibility in the first
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1 instance. That the inquiry on the admissibility is that
2 the trial judge must determine whether or not this is
3 based on scientific method. And a number of factors
4 were set forth by Justice Blackman for the majority in
5 Daubert as factors to be taken into account.
6 And it is interesting also that Justice
7 Blackman pointed out that none of these is required.
8 These are just things to be taken into account and are
9 the Court's discretion in determining whether this is
10 evidence that is based on science.
11 One of the factors can a hypothesis be and
12 has it been tested, we will present testimony on. The
13 hypothesis underlying the autonomic measurements that
14 are used on the modern polygraph system are based on the
15 science of psychophysiology, the interplay between
16 psychology and the physiology of the human body and
17 based on involuntary reactions of the autonomic nervous
18 system.
19 And it has been tested. The theory has been
20 tested time and time again in laboratory and field
21 studies and we will introduce evidence of those. The
22 second one ought to be a giveaway. Has the subtheory or
23 technique been subject or subjected to peer review and
24 publication?
25 The very exhibits introduced by the
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1 Government in this case establish that. We incidentally
2 attempted to work out stipulations and there have been
3 no stipulations on the existence of any of these
4 factors, but I don't think there can be any serious
5 argument about whether this has been published and
6 reviewed and discussed and debated and so on, and
7 whether or not people agree with all the conclusions.
8 And there are always dissenters in any field. There is
9 no doubt it has been subjected to peer review and
10 publication.
11 Third is what is the known or potential rate
12 of error? And evidence will be introduced that the
13 that there is a known potential rate of error with the
14 modern polygraph test. Particularly the control
15 question technique which is the one that is accepted,
16 most widely used, most widely even by the Government
17 and was the test administered here. And that the
18 potential rate of error is fairly small when you compare
19 it with other kinds of scientific evidence and expert
20 testimony that the Court sees every day. The testimony
21 will show that it ranges around 90 percent accuracy when
22 there is a conclusion reached.
23 What standards exist to control the
24 techniques operation? The testimony will show there are
25 standards that are understood within the industry and
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1 that the test in this case was administered strictly
2 pursuant to the New Mexico standards that were
3 established by the New Mexico Supreme Court and have
4 been followed in New Mexico for many years. And that
5 Dr. Raskin follows those same standards in all of his
6 tests and did in this case.
7 The final factor is what is the degree of
8 acceptance of the technique within the relevant
9 community? And we will show that a majority of the
10 psychophysiological scientific community find that
11 polygraph results are helpful in determining facts and
12 we will introduce poll studies, two different polls
13 including one within the last few years. Another one a
14 little over a decade ago. Both showing the same thing,
15 psychophysiologists, a majority of them, find that
16 polygraph tests are helpful when considered with other
17 information in determining facts of truth or deception.
18 And that is all we're asking for here is to
19 have it introduced along with all the other evidence and
20 not be the exclusive determiner of any fact. Daubert
21 does not require that there be a majority but we will
22 show that it is here.
23 There will be four witnesses today, Your
24 Honor. The witness list has grown a little bit. We
25 have Dr. Raskin who will testify about the history of
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1 the use of the polygraph and the application of the
2 underlying scientific principles and all the Daubert
3 factors and of the test in this case.
4 The Government is calling Dr. Gordon Barland
5 who is the head of the polygraph activity for the
6 Department of Defense. I have every reason to believe
7 that Dr. Barland will also agree that the standards are
8 met. His disagreement is with particular scoring on
9 this, which we submit is a jury issue. The same as it
10 is with any other expert testimony. We will introduce
11 some evidence on the scoring and we hope not to belabor
12 that because we don't think it is an admissibility issue
13 but simply is a disagreement between experts as to the
14 results in the particular case not as to the underlying
15 science and methodology.
16 The other witness that we have been recently
17 advised that the Government is going to bring is a Dr.
18 Larry Farwell. We have no challenge to Dr. Barland's
19 qualifications as an expert polygrapher. We disagree
20 with certain of his conclusions, but we will
21 respectfully disagree with the qualifications of Dr.
22 Farwell who is not a polygrapher and who is not a
23 specialist in the area of science that polygraphy is
24 based on and we think is not an expert that can qualify
25 under Rule 701 and 702 of the federal rules of evidence.
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1 We also understand the Government is going to
2 offer an affidavit of an out of court witness. We will
3 object to the introduction of that. It is a matter
4 within the Court's discretion and we can argue that at
5 the appropriate time. As a result of the Government's
6 calling of Dr. Barland and Dr. Farwell, we have also
7 given the notice and provided background materials that
8 we will call Dr. Charles Honts of the University of
9 North Dakota. He is a professor there and I think
10 without question the world's leading expert on the issue
11 of countermeasures, which is something that has been
12 raised by Dr. Barland in the materials that have been
13 provided by the United States Attorney's Office.
14 He also independently scored the examination.
15 I forgot to mention when I was talking about scoring the
16 examination as the Court may be aware that grading
17 the numerical scoring system that is mandated by New
18 Mexico law and generally used by polygraphers throughout
19 the country has a fairly standard a very standardized
20 numerical scoring system.
21 Dr. Barland I believe uses the identical
22 scoring system, the federal government uses it, the
23 polygraphers in the field use it. That a score of minus
24 6 or below is considered deceptive. A score of plus 6
25 or above is considered a truthful answer. And the range
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1 inbetween which may include both truthful and deceptive
2 people is just considered too close to call with that
3 kind of 90 percent accuracy that attaches to the
4 polygraph results and those are called inconclusives and
5 not relied on in any fashion.
6 Dr. Raskin scored Dr. Galbreth's test at a
7 plus 29. Dr. Honts did a blind scoring after we found
8 that Dr. Barland was disputing Dr. Raskin's scores
9 recently and did a blind scoring using the standard
10 techniques and came up with a very close score, within
11 three points of a plus 32. Both of these two experts
12 also used a computerized scoring technique that is a
13 secondary method of scoring and takes out any element of
14 human discretion or judgment or anything like that that
15 might account for the 2 or 3 points difference.
16 And the computerized scoring showed a 95
17 percent. I won't give you the exact decimals but
18 generally 95 percent confidence rate in the truthful
19 outcome of the examination by both Dr. Raskin's original
20 computer test on it and Dr. Honts' independent
21 computerized scoring of it.
22 That basically is an outline of what we will
23 present here today, Your Honor. And unless the
24 Government wants to make an opening statement now, I
25 will yield. Otherwise, I will call our first witness.
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1 MS. HIGGINS: The Government does. Your
2 Honor, Mr. Daniels has talked to the Court about some of
3 the facts in the case. I don't want to belabor the
4 facts because I don't think this is the proper time for
5 that; however, the Government does contest the
6 information contained in the affidavit of Harold
7 Reynolds, which has already been submitted with the
8 defendant's motion in limine and will offer testimony at
9 court to contest that.
10 I would also if Mr. Daniels is going to admit
11 something, some document under Rule 801 D saying that my
12 office or someone at my office has stated that Dr.
13 Raskin is the preeminent expert in his field, of course,
14 I would like to see exactly what he is looking at before
15 in any way agreeing with him on that. The admissibility
16 of polygraph
17 THE COURT: Excuse me. Mr. Daniels, if you
18 could provide that to Ms. Higgins. You said you had a
19 statement.
20 MR. DANIELS: I have. If there is any
21 dispute about Dr. Raskin's credentials, I don't even
22 know if we need to get into that, but I have here the
23 transcript in U.S. versus Wilchin, December 1991, Mr.
24 David Williams, one of senior assistant U. S. Attorneys
25
BETTY J. LANPHERE
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1 MS. HIGGINS: In the course of
2 crossexamination?
3 MR. DANIELS: Yes.
4 THE COURT: I would like that provided
5 because that will save us a lot of time.
6 MR. DANIELS: Right.
7 MS. HIGGINS: I can look at that later, Your
8 Honor. The admissibility of polygraph results does not
9 involve a novel scientific issue. In fact, the
10 admissibility of polygraph results has been the subject
11 of considerable litigation since 1923. And the fact
12 that we now have a new standard for admissibility of
13 evidence in federal court after Daubert does not change
14 that fact and nothing in Daubert directly addresses
15 polygraph results or in any way makes polygraph results
16 more admissible per se.
17 The touchstone in this inquiry is still as it
18 always has been the scientific validity, the underlying
19 scientific validity of polygraph results. And, in fact,
20 under Daubert that is the inquiry for whatever
21 scientific testimony a proponent may offer. Whether the
22 the reasoning or methodology underlying the testimony is
23 scientifically valid and that takes us to whether there
24 is scientific knowledge underlying the testimony,
25 whether the scientific method was used in developing the
BETTY J. LANPHERE
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1 hypothesis and developing the technology. That is still
2 there and that has been one of the major points for
3 dissension in the admissibility of polygraph results.
4 The second Daubert the second main Daubert
5 issue is whether that reasoning or methodology properly
6 can be applied to any fact at issue in a particular
7 case. What is at issue in this case is not just the
8 admissibility of polygraph results in general or even
9 just the control question polygraph results, but a
10 specific technique, the directed lie control question
11 polygraph test. That was the test given in this case.
12 That is the test that the Court needs to determine
13 whether there is underlying scientific validity.
14 It is true it is a subtest of the more
15 general control question polygraph exam but nevertheless
16 it is a slightly different technique. And if there is a
17 novel issue in this case, it has to do with that
18 technique, the directed lie control question technique.
19 And it is that technique that has to be viewed in the
20 context of the Daubert factors.
21 Now, it is true that the factors are not
22 dispositive. That is to say that they are not
23 exclusive. They are not the only ones that the Court
24 can apply, but they do give the Court some guidance in
25 determining whether the underlying methodology for this
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1 technique and whether the underlying methodology for any
2 studies that have been done to show validity of this
3 technique are, in fact, scientifically valid.
4 And the factors that Mr. Daniels has shown
5 the Court and has related to the Court are actually very
6 basic kinds of questions that a Court normally would ask
7 in assessing scientific validity. And with all due
8 respect to opposing counsel, the Government is not able
9 to stipulate to the presence of any of these factors
10 with respect to the directed lie control question
11 technique. And we will show through the testimony of
12 our experts that there is a lack of scientific knowledge
13 and scientific validity underlying that particular
14 technique and research that has been done on that
15 technique.
16 Also, still under Daubert the Court has the
17 discretion to preclude results, to preclude scientific
18 testimony under Rule 403. And that is certainly an
19 inquiry that the Court will want to consider in this
20 case. Specifically with respect to the scoring results,
21 Dr. Gordan Barland, one of the Government experts, in
22 fact, is highly qualified in this field. In my view
23 perhaps equally qualified as Dr. Raskin. He, too, has a
24 Ph.D.
25 And I need to digress for just a minute. One
BETTY J. LANPHERE
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1 of the first questions that the Court needs to answer in
2 determining scientific validity is what is the relevant
3 scientific community? What is the relevant underlying
4 science? It's the Government's contention the
5 Government's witnesses will testify that the relevant
6 scientific community is composed of psychophysiologists.
7 And Dr. Raskin I am sure will agree that the relevant
8 scientific field is that of psychophysiology. That is
9 the parent field of which polygraphy is a subset, one
10 small area of inquiry for psychophysiologists. That is
11 the relevant side to the community.
12 So when the Court is trying to assess the
13 degree of acceptance in the scientific field, the Court
14 should be looking at the field of psychophysiologists.
15 Polygraphists are the ones who actually administer the
16 polygraph test. To the extent that they are also
17 conversant in psychophysiology, then perhaps they can
18 talk about consensus in the field. To the extent that
19 they do not know about that, they may not be able to say
20 what the degree of acceptance in the field is.
21 In any event Dr. Barland fits very well
22 within that scientific community as does Dr. Farwell.
23 Dr. Farwell is not a polygrapher. He is not trained in
24 the administration of the polygraphy test; however, he
25 has a very strong academic background in the field of
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1 psychophysiology.
2 He has done independent research in that
3 field. Not the same thing as polygraphy but related to
4 brain waves and psychophysiological issues. He is
5 currently a medical I'm sorry, an associate at
6 Harvard Medical School in which he is participating in
7 research related posttraumatic stress disorder and
8 psychophysiological issues that relate to that disorder.
9 The Government will contest very strongly any
10 dispute about him not being qualified to talk about the
11 relevant scientific field of psychophysiology or the
12 scientific method in general, which again is the
13 touchstone, the bedrock for everything that is going to
14 happen here.
15 With respect to the issue of scoring, it is
16 true that there will be some discussion of scoring in
17 this case. Perhaps one of the reasons the defense would
18 like to portray the scoring as not an admissibility
19 issue is because Dr. Barland has rescored the charts and
20 come up with a score of zero which is exactly in the
21 middle of the inconclusive scores.
22 It is the Government's position that in the
23 course of testifying about reasons why Dr. Barland would
24 get a score so different from that of Dr. Raskin's, the
25 issue of something called countermeasures or ways to
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1 defeat the test will be discussed. And that the scores
2 and the charts in this case can be used as examples of
3 possible countermeasures.
4 And with respect to James Murphy, it is true
5 that the Government does have an affidavit that it
6 intends to offer into evidence from Mr. Murphy. He is
7 the head of the Polygraph Unit for the FBI and he has
8 given me an affidavit in which he states that he does
9 not believe and it is also not policy of the Department
10 of Justice and so not the policy of the FBI to recommend
11 polygraph results be used in criminal trials. For the
12 reason that there are some scientific validity problems
13 with them. The Government will be offering that
14 affidavit in this hearing.
15 Mr. Daniels is correct that it's at the
16 discretion of the Court to accept it as the Court
17 already is in possession of an affidavit from Harold
18 Reynolds whose the information in his affidavit is
19 certainly more remote to this hearing than that of Mr.
20 Murphy. The Government will offer that as an exhibit
21 and will ask that it be accepted.
22 In any event what will be discussed in this
23 hearing will be very closely related to the Daubert
24 factors. The Government does agree with Mr. Daniels in
25 that respect, and it is the Government's position that
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1 in examining the Daubert factors and in examining the
2 Daubert test for admissibility that polygraph results
3 have not changed since the last time that the Tenth
4 Circuit looked at this issue, which I believe it was in
5 1987. There has been no change in the field such that
6 they are now more scientifically valid than they were
7 then notwithstanding the new admissibility standard in
8 Daubert.
9 THE COURT: Ms. Higgins, if the Tenth Circuit
10 never looked at polygraph evidence with the new
11 standards in mind and looked at the state of the art in
12 the scientific field with the Daubert factors then how
13 can we say it has precluded relevant evidence based upon
14 the new ways to consider scientific evidence in the
15 courtroom?
16 MS. HIGGINS: Your Honor, I think it's the
17 Government's position that these are not strictly
18 speaking "new ways" of approaching the issue. It is
19 true that in preDaubert cases the standard was general
20 acceptance within the relevant scientific community.
21 That has now been relegated to a possible factor for the
22 Court to consider.
23 However, Daubert still demands an inquiry
24 into the underlying scientific validity, reliability and
25 accuracy which was something that was looked into even
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1 under Frye. All that Daubert is saying is that if the
2 Court finds that the underlying scientific validity or
3 reliability or reproducibility issues are shown to the
4 Court's satisfaction, the Court is no longer bound by
5 the general acceptance standard. To that extent it has
6 changed.
7 THE COURT: All right. And that's what I
8 understand we'll be doing today is addressing the
9 Daubert factors to determine the scientific reliability
10 on the one hand and the relevance to this case in the
11 second hand in order to determine the admissibility.
12 MS. HIGGINS: That's correct, Your Honor.
13 THE COURT: Let me just ask you, Ms. Higgins,
14 Mr. Murphy where is Mr. Murphy from? Is he available
15 at all?
16 MS. HIGGINS: No, he is not.
17 THE COURT: Where does he live?
18 MS. HIGGINS: He is in I imagine Washington,
19 D.C. I believe he works in Washington, D.C. I did not
20 actually subpoena Mr. Murphy. I was told that if I did
21 send a subpoena for him or any member of the FBI
22 Polygraph Unit, they would move to quash the subpoena.
23 The reasons that were given for that is they receive
24 requests like mine so frequently that if they were to
25 accede to all the requests, they would never have
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1 anybody in the lab actually to do the tests.
2 However, he did offer to supply me with an
3 affidavit. He has supplied me with the affidavit. And
4 for whatever weight the Court wishes to give it, I would
5 like to submit it.
6 THE COURT: I haven't looked at the affidavit
7 but let me just say that I am concerned about receiving
8 affidavit testimony on the issue of the scientific
9 factors that the Court must consider because we don't
10 have the opportunity to question Mr. Murphy or have him
11 crossexamined.
12 When we get to that point, I would like to
13 see if it is possible to perhaps conduct this over the
14 phone at least so that the Court may have the benefit of
15 his affidavit. I need to make sure that Mr. Daniels has
16 an opportunity to crossexamine and I have the
17 opportunity to ask him any questions with regard to
18 whatever the contents of the affidavit are.
19 MS. HIGGINS: I understand, Your Honor.
20 THE COURT: You may proceed.
21 MR. DANIELS: Your Honor, at this time we
22 would formally move the introduction of Exhibit A, the
23 affidavit of Harold Reynolds. And let me state clearly
24 that I understand the Government is taking the position
25 at trial before the finding of ultimate fact that they
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1 disagree with the facts in Mr. Reynold's affidavit. I
2 am not offering it to conclude the truth of anything in
3 there, but simply to show that these are the factual
4 issues in dispute and to show the relevance of the
5 questions that were asked here of the defense theory.
6 And frankly I think even without the
7 affidavit, the centrality of those factual issues ought
8 to be clear in a tax evasion case. But that simply is
9 to provide the context of the defense's case and theory,
10 and we would offer it simply to show that that is our
11 position in the dispute and not offering it for finding
12 of the truth in the matter contained.
13 (WHEREUPON, Defendant's Exhibit A
14 offered into evidence.)
15 MS. HIGGINS: No objection, Your Honor, as
16 long as everybody clearly understands that not only do
17 we contest the facts, we plan to contest them vigorously
18 at trial.
19 MR. DANIELS: We're ready for that.
20 THE COURT: It shall be admitted.
21 (WHEREUPON, Defendant's Exhibit A
22 admitted into evidence.)
23 MR. DANIELS: Our first witness will be Dr.
24 David Raskin.
25 DAVID RASKIN
BETTY J. LANPHERE
30
1 The witness herein, having been sworn to
2 testify the truth, testified as follows:
3 DIRECT EXAMINATION
4 BY MR. DANIELS:
5 Q Dr. Raskin, would you please state your full
6 name for the record.
7 A David C. Raskin, Raskin.
8 Q Dr. Raskin, where do you live?
9 A Salt Lake City, Utah.
10 Q Are you employed there?
11 A Yes.
12 Q Could you tell us your occupation.
13 A I am a professor of psychology at the
14 University of Utah.
15 Q Is that a tenured position?
16 A Yes.
17 Q In the Psychology Department of the
18 University of Utah?
19 A Yes.
20 Q How long have you been employed in that
21 capacity as a professor of psychology at the University
22 of Utah?
23 A Since 1968.
24 Q And do you have any specialty areas within
25 the general field of psychology?
BETTY J. LANPHERE
31
1 A Yes.
2 Q Could you tell us what those specialty areas
3 are?
4 A My specialty areas have to do with human
5 psychophysiology, human learning and memory, forensic
6 psychology, interview techniques, analysis of
7 statements, criminal investigation.
8 Q And could you elaborate for the record what
9 the field of psychophysiology is?
10 A Psychophysiology is the scientific discipline
11 that involves the study of the relationship between
12 psychological processes and bodily reactions such that
13 psychophysiologists measure people's physiological
14 reactions in controlled situations. And from a
15 knowledge of the situation and the stimulation that is
16 presented make inferences about psychological processes
17 or mental states that the subject is experiencing.
18 Q And that is a recognized specialty within the
19 field of psychology?
20 A Yes. It is a combination of the field of
21 psychology, the fields of physiology and related
22 disciplines and also medicine and engineering, but it is
23 predominantly psychologists who are part of that field.
24 Q Is this body of knowledge based on scientific
25 principles?
BETTY J. LANPHERE
32
1 A Yes.
2 Q Before I get a little bit more into
3 psychophysiology and how it relates to polygraph, could
4 you please share with us your educational background?
5 MR. DANIELS: Your Honor, before Dr. Raskin
6 generally summarizes it, we would offer Exhibit B, which
7 is his curriculum vitae. And as the Court can see it's
8 about 38, 39 pages, and that it might be timeconsuming
9 to discuss all of it. We have provided this earlier to
10 the U. S. Attorney.
11 (WHEREUPON, Defendant's Exhibit B
12 offered into evidence.)
13 MS. HIGGINS: Your Honor, I have no objection
14 to that, what has been marked as Defendant's B. I also
15 have no objection to Dr. Raskin being accepted as an
16 expert. I believe you're going to offer him in the
17 field of psychophysiology?
18 MR. DANIELS: Psychology, psychophysiology
19 and polygraph testing and administration.
20 MS. HIGGINS: The Government has no objection
21 to him being accepted as an expert in those areas, if
22 that will shorten it.
23 MR. DANIELS: It probably will, Your Honor.
24 And that takes care of the matter of the other
25 transcript. We don't need that at this point.
BETTY J. LANPHERE
33
1 THE COURT: Admitted.
2 (WHEREUPON, Defendant's Exhibit B
3 admitted into evidence.)
4 BY MR. DANIELS:
5 Q Could you just very briefly summarize your
6 educational background since we have your vitae in
7 evidence, Dr. Raskin?
8 A I received my bachelor's and master's and
9 Ph.D. degrees from UCLA. My Ph.D. was in 1963.
10 Q Do you have a specialization with your Ph.D.?
11 A Experimental psychology.
12 Q Do you belong to any professional or honorary
13 organizations?
14 A Yes, I do.
15 Q Just describe briefly the ones that relate
16 most closely to the expertise that you are testifying
17 about today.
18 A Well, the Society for Psychophysiological
19 Research would be a primary one. I am a member and also
20 have served on the Board of Directors and have been
21 nominated for President three times I think of this
22 society.
23 Q All right.
24 A I also have been elected a fellow of the
25 American Psychological Association. A fellow and
BETTY J. LANPHERE
34
1 charter fellow of the American Psychological Society. A
2 fellow of the American Association for Applied and
3 Preventive Psychology. President of the Rocky Mountain
4 Psychological Association which covers the eight Rocky
5 Mountain states and the province of Alberta. A member
6 of the American Psychology and Law Society. A member of
7 other related organizations.
8 Q All right. Are those all professional
9 organizations of experts in those fields?
10 A Yes. Experts in academics, scientists,
11 scholars, researchers of various sorts.
12 Q What were your initial duties when you joined
13 the University of Utah?
14 A My duties consisted primarily of teaching.
15 Q And do you still teach?
16 A Yes.
17 Q All right.
18 A Conducting scientific research and publishing
19 scholarly works which is probably my major duty and has
20 occupied the largest fraction of my time and providing
21 community service and assisting students in various
22 ways, supervising graduate students.
23 Q Could you share with us how you came to be
24 involved in the study of applied psychophysiology
25 scientific principles to the polygraph instrument and
BETTY J. LANPHERE
35
1 its use?
2 A Well, because I have specialized in
3 psychophysiology and began that during my graduate work,
4 an attorney was referred to me in a case in Salt Lake
5 City in 1970. It was a capital offense case in which
6 his client had taken a polygraph test that was
7 stipulated into evidence and had been labeled as
8 deceptive by the police polygraph examiner who conducted
9 it. And the attorney was referred to me for some
10 assistance in dealing with this type of evidence which
11 was going to be presented at trial.
12 I agreed to look at it, and at that time I
13 held the opinion, which I hold today and which is shared
14 by the bulk of the scientific community, that the type
15 of polygraph test that was used in that situation was an
16 unreliable, unacceptable technique known as the
17 relevantirrelevant test. It has virtually no
18 scientific validity and I agreed to assist him in coping
19 with that evidence at trial.
20 Q And the competent experts in the field
21 generally agreed that the relevantirrelevant technique
22 is not a valid use of the polygraph?
23 A That is correct. In fact, it is so held in
24 disrepute that the State of Utah in its licensing
25 regulations does not allow that technique to be utilized
BETTY J. LANPHERE
36
1 for any purpose pursuant to use in actual cases or
2 investigation of any sort in the State of Utah.
3 Q Now, you did not use the relevantirrelevant
4 technique in the examination of Dr. Galbreth, did you?
5 A I have never used the relevantirrelevant
6 technique except in research to demonstrate what is
7 wellestablished, that it doesn't work.
8 Q You have administered a number of polygraphs
9 under the New Mexico Rules of Evidence?
10 A Yes, I have been administering them before
11 and since that rule was adopted the very same way as the
12 rule states. In fact, I helped formulate that rule.
13 Q Does New Mexico allow the use of
14 relevantirrelevant?
15 A No.
16 Q What kind of test does the New Mexico rule
17 and the Utah rules allow?
18 A They allow control question tests as they are
19 generally termed. And they might allow what are called
20 concealed knowledge or guilty knowledge tests depending
21 upon how one interprets their use, but the primary test
22 is the control question test.
23 Q We'll get to the distinctions between those
24 tests in just one moment. I want to not jump
25 chronology. Have you ever been involved in polygraphs
BETTY J. LANPHERE
37
1 in any fashion before this attorney brought this case to
2 you back in 1970?
3 A Well, I had been using polygraphs in my
4 research and teaching and training since I was a
5 graduate student because the polygraph is the primary
6 instrument that is used by psychophysiologists. It's a
7 biomedical instrument designed to measure various bodily
8 functions and it is the primary tool that
9 psychophysiologists have historically used. In fact, it
10 was developed by psychophysiologists.
11 Q When the word "polygraph" is mentioned people
12 often associate it with lie detection. You're telling
13 us that it was not that was not its original purpose
14 when it was first invented?
15 A That's correct. In fact, one of the earliest
16 ones was developed by Professor Donald Lindsley at UCLA
17 who was one of my professors and he participated in the
18 development of that back in the mid30's. It's a
19 biomedical research instrument.
20 Q Just briefly could you tell us what bodily
21 physiological functions the polygraph instrument that
22 you use measures?
23 A For actual polygraph tests you mean?
24 Q Yes.
25 A It measures two measures of respiration. One
BETTY J. LANPHERE
38
1 of the upper chest, the thoracic respiration and one on
2 the abdomen or abdominal respiration. And that measures
3 the movements of the body associated with breathing so
4 that one can measure the rate and depth of inspiration
5 and expiration. It measures what is called skin
6 conductance or more commonly referred to as the galvanic
7 skin response or GSR. And that is obtained by putting
8 two pickups on the palm or surface of two fingers with
9 an electrode contact medium to measure changes in the
10 sweat gland activity in the palms of the hands, a very
11 sensitive measure.
12 It measures what is called a cardiovascular
13 or cardiomeasure which is obtained by putting a standard
14 blood pressure cuff usually on the upper arm and
15 inflating that to a moderate pressure where the
16 recordings can be obtained continuously of heart rate,
17 pulse, when the heart beats and changes in the level of
18 tracing that are related to changes in blood pressure
19 and volume of the arm. And it measures what is called a
20 plethysmograph which is a measure of the state of the
21 peripheral blood vessels in the skin of the finger that
22 shows when the blood vessels constrict as a result of
23 stimulation and it measures the size of those pulses.
24 Q And these were the kinds of measurements that
25 psychophysiologists were using in making the polygraph
BETTY J. LANPHERE
39
1 instrument even before it was used for lie detection; is
2 that true?
3 A Yes, those and other measures. There are
4 many other measures that would be used in the
5 psychophysiology lab that may not be useful in a
6 polygraph test.
7 Q It was basically a preexisting scientific
8 instrument before your studies began in using it for lie
9 detection?
10 A Oh, yes, long before.
11 Q How does it compare to the kind of device
12 that was used in the old Frye case back in 1923?
13 A The old Frye case didn't use anything that
14 remotely resembled a polygraphy or any kind of a
15 continuous measure. What it was was simply using a
16 standard blood pressure type device as you would find in
17 any physician's office and taking a measurement every
18 minute or so of the subject's blood pressure by using a
19 microphone and a cuff like a nurse or a doctor would do
20 in a doctor's office.
21 And the subject was asked a series of
22 questions over a substantial period of time, and they
23 occasionally took his blood pressure as they did with
24 Frye. This was developed by William Marston at Harvard
25 University, a psychologist, and it bears no resemblance
BETTY J. LANPHERE
40
1 whatsoever to the polygraph or any current technique.
2 Q When you first became interested in this area
3 in 1970 when this case was brought to you, what was your
4 professional attitude about the use of the scientific
5 polygraph instrument for lie or truth deception?
6 A My attitude was one of extreme skepticism
7 which was shared by the scientific community at that
8 time because what was mostly known was the
9 relevantirrelevant test, and that was the sort of type
10 of test that was used in the old Frye case. It was a
11 precursor of the relevantirrelevant and it was in
12 disrepute then and is in disrepute now and I shared
13 those concerns.
14 Q And did you have any feelings about whether
15 you could specifically identify patterns and reactions
16 that could be attributed to deception by the use of a
17 polygraph instrument?
18 A Yeah, I had feelings. I felt that it would
19 be extremely difficult at best because there are no
20 known reactions that are unique to lying as opposed to
21 anxiety or fear or stress or, you know, other kinds of
22 emotional or cognitive events that could cause similar
23 reactions.
24 Q Those were the feelings you had before you
25 began studying it more closely?
BETTY J. LANPHERE
41
1 A Yes.
2 Q What did you do as a result of this contact?
3 A Well, I became very interested in the problem
4 in recognizing that it was a technique that was being
5 used widely in law enforcement. I felt that it was
6 important to do scientific research which had never been
7 done to establish what I thought would be results that
8 would show that it doesn't work. I had a graduate
9 student at the time who had come to work with me the
10 previous year who had asked to go to graduate school
11 under my supervision, Gordon Barland
12 Q That is the Dr. Barland that is here as the
13 Government's witness?
14 A Yes.
15 Q At the table here?
16 A He was then not Dr. Barland, he was a
17 student.
18 Q A long time has passed since.
19 A Yes. This goes back to 1969 when he first
20 came to the University of Utah and asked to study with
21 me. And I asked Dr. Barland, Mr. Barland at the time,
22 if he would be interested in working on a project with
23 me to look at polygraph techniques because I felt that
24 some research needed to be done to put this thing to
25 rest once and for all and get rid of a technique that
BETTY J. LANPHERE
42
1 wasn't very useful scientifically.
2 So he expressed an interest in it and we
3 began to look at the literature and he arranged to
4 attend what was then the U.S. Army Military Police
5 School in Fort Gordon, Georgia, that trained polygraph
6 examiners for the Army and for other Department of
7 Defense agencies.
8 He got himself reactivated as I recall as a
9 reserve officer so he could attend the school free at
10 the Government's expense and he went back there for a
11 12week course where he learned about polygraph so that
12 he could then conduct the examinations and research that
13 we were going to do. And that's when we learned about
14 the control question test. And it had not been widely
15 discussed in the scientific literature.
16 And he then came back and I helped him to
17 design a study for his master's thesis which was the
18 first scientific study on the accuracy of the control
19 question test for polygraph examinations. That was in
20 I believe he started the research sometime late in
21 1970 or early 1971.
22 Q What did you find out?
23 A Pardon me?
24 Q What did you find out in the first round of
25 research that you conducted?
BETTY J. LANPHERE
43
1 A Well, we were I was a little surprised and
2 I think Gordon Barland was also somewhat surprised at
3 how well it worked. I think my surprise was greater
4 than his. It wasn't perfect by any means and it was a
5 fairly primitive study and we used fairly primitive
6 equipment. But inspite of that, it worked a lot better
7 than chance and I felt, well, gee, if it works that
8 well, then perhaps it's something that should be
9 improved. Because any method to detect truth could be
10 useful in criminal investigation as well as legal
11 proceedings.
12 And so I became more involved in that kind of
13 research and it really began to dominate my scientific
14 career at that time. And I got the first grant from the
15 National Institute of Law Enforcement and Criminal
16 Justice, LEAA at the time, to do a major large scale
17 study of the scientific and practical issues involved in
18 polygraphs.
19 And Mr. Barland worked with me as a research
20 assistant under my supervision on that. And then since
21 that time I have had many, many research grants and
22 contracts from the Department of Justice, the CIA, the
23 U.S. Secret Service and various other agencies.
24 Q Are those studies listed in your vitae,
25 Exhibit B?
BETTY J. LANPHERE
44
1 A Yes.
2 Q Could you before we go into the specific
3 test, let's talk about the underlying scientific
4 principles and the scientific theories upon which the
5 modern polygraph instrument is based. Could you explain
6 the psychophysiology that is the scientific basis?
7 A Well, it is based upon the notion that if a
8 person is threatened or concerned about a question or a
9 stimulus, that that concern when answering questions
10 about the matter under investigation will express itself
11 in terms of measurable physiological reactions that can
12 be recorded on a polygraph instrument as I described
13 earlier. And the theory underlying the control question
14 test is that if a person is practicing deception on the
15 relevant issues, the relevant questions as they are
16 called and these are all questions that are simply
17 answered yes or no and are reviewed in advance with the
18 subject so they know what the subject matter of the
19 question is and they know what the answer is and they
20 know whether or not they are being truthful or
21 deceptive.
22 Q Why it is important to review it in advance?
23 A Well, if you don't review the questions in
24 advance, then first of all they come as a surprise and
25 surprises are novelty elicit the same kinds of
BETTY J. LANPHERE
45
1 reactions that are the ones of interest in a polygraph
2 test and you couldn't distinguish between those two
3 possible causes.
4 Secondly, when a question is being asked for
5 the first time, the subject has to analyze the meaning
6 of the question in order to formulate an answer. And
7 that process of a cognitive appraisal or analysis of the
8 information in the question also causes substantial
9 reactions. And those are undistinguishable from a
10 reaction that may be caused by deception or attempts to
11 mislead.
12 And there may be terms in the question that
13 are ambiguous. They may require discussion and
14 clarification so that it is extremely important that all
15 of this be worked out in advance, otherwise the task of
16 determining whether a person is deceptive and that those
17 reactions are produced by deception or by some other
18 factor would be impossible.
19 Q And how is that applied to the those
20 underlying principles applied to the polygraph use?
21 A Well, in a control question test if you ask
22 questions that are then reviewed and those would include
23 what are called control questions that are designed to
24 provoke a reaction from most everyone and in
25 particularly strong reactions from people who are being
BETTY J. LANPHERE
46
1 truthful on the relevant issues, these are comparison
2 questions. That's a more proper term than control
3 questions.
4 You have these comparison questions and you
5 have the relevant questions and the underlying principle
6 is that a person who is being deceptive on the relevant
7 questions is most concerned about being detected in that
8 deception. And that that concern will express itself in
9 relatively strong reactions to the relevant questions as
10 compared to any other question in the test and would
11 indicate that they are being deceptive.
12 Whereas a person who is being truthful on the
13 relevant questions and who has been properly prepared in
14 the pretest interview to understand that they react not
15 when they are being truthful or when they are lying,
16 would now become more concerned about these comparison
17 or control questions because those questions are
18 designed either to elicit a lie as would be done with a
19 directed lie question or to be likely to elicit a lie or
20 a lack of ability to know that their answer was
21 truthful, which is the situation with what are called
22 probable lie controls.
23 And that when they are being truthful to the
24 relevant question, these reactions to these comparison
25 or control questions would indeed be greater than the
BETTY J. LANPHERE
47
1 reactions to the relevant questions. And that's how you
2 can distinguish truthfulness from deception, by the
3 pattern and comparison of the reactions.
4 Q Are there scientific principles that
5 determine whether or not someone can just decide to
6 control their reactions to these answers?
7 A Yes.
8 Q What are those underlying scientific
9 principles?
10 A Well, when you're measuring what are called
11 autonomic responses and the ones that we have been
12 talking about that are measured by a polygraph are
13 primarily autonomic responses. The autonomic nervous
14 system is relatively impervious to voluntary control.
15 These are vegetative functions. These are the things
16 that control how our bodies work and adjust themselves
17 to change in conditions, and these things go on
18 automatically without our ability to directly intervene.
19 In fact, we'd probably cause ourselves harm
20 if we tried to and were able to decide what our heart
21 rate should be. So the body runs itself in that sense
22 and people have great difficulty controlling them so
23 that when such questions are asked, then it is very
24 difficult for a person to manipulate the outcome. The
25 reactions are generally involuntary.
BETTY J. LANPHERE
48
1 Q What function in the survival of the species
2 would those kinds of reactions serve the human body?
3 A Well, if we look at them separately the
4 respiration function is wellknown not only in the human
5 body but in animals and we may be even more familiar
6 with that in animals that when a threatening situation
7 arises or when something happens in the environment that
8 causes the organism concern, there is typically a
9 reduction in respiratory activity, a suppression of
10 breathing, a slowing of breathing because this then
11 allows the organism to be more attentive to external
12 stimulation.
13 The breathing activity itself produces noise
14 in the nervous system. It also the noises of
15 breathing too which makes it less the organism less
16 able to detect events and analyze events externally. We
17 see that in our own behavior. If something happens
18 suddenly, we stop breathing or we breath very shallowly
19 as we try to figure out what's going on out there.
20 The classic example is a deer in the woods
21 and every hunter knows that if you're out there stalking
22 a deer and if you break a twig, the deer hears that,
23 becomes motionless and orients toward the source of that
24 sound and breathing is very much suppressed. And so we
25 see those things in an adaptive way in a polygraph
BETTY J. LANPHERE
49
1 situation. They express themselves the same way.
2 As far as the galvanic skin response, the
3 skin conductance, the perspiration on the palms of the
4 hands it has been wellestablished that first of all a
5 moderate amount of sweat in the tissues of the skin
6 makes the skin less subject to injury. And this is
7 important in organisms such as a human having to climb a
8 tree or be in combat where injury could be a detriment.
9 It also has been shown that people can grip
10 things better such as implements, a club or something
11 like that when they have some perspiration. And there
12 is a third thing which escapes my attention at the
13 moment. Oh, sensitivity. The skin becomes more
14 sensitive. Sensitivity is increased when there is sweat
15 gland activity like that so there are reasons why we see
16 the sweating on the palms in these important situations.
17 Q Is there something you can just decide to do?
18 I think I'll make my palms sweat at this point?
19 A No, on the contrary as we all know the
20 problem is stopping your palms from sweating when you're
21 anxious. Of course, the classic example that we can all
22 relate to is as teenagers holding hands in a movie
23 theater. Those sweaty palms were always a problem and
24 we can't stop it even if we would like to.
25 Q Right.
BETTY J. LANPHERE
50
1 A So it's that kind of principle that is at
2 stake here.
3 Q How is this related to what is called the
4 fight or flight reaction?
5 A Well, the fight or flight reaction is related
6 to this in that that is a major manifestation of these
7 kinds of processes when one is in a very threatening,
8 usually physically threatening situation.
9 Q You said physically threatening, these are
10 reactions of the body to confront the sabertoothed
11 tiger or the bear or whatever?
12 A Yes, or the angry other person or a car
13 impending car accident or anything that causes a person
14 to be concerned about their safety. And then there is a
15 tremendous mobilization of energy and resources that
16 prepares the body for action.
17 Q Does it require a physical threat to cause
18 the body to come up with these kinds of reactions?
19 A No. A psychological threat or even a concern
20 or a focused attention on a particular stimulus and
21 cognitive activity or mental processing can cause
22 similar reactions. They may not be as exaggerated as
23 they would be if a bear is about to attack you, but they
24 are strong and clearly measurable in a polygraph.
25 Q And the other indicators I think we have
BETTY J. LANPHERE
51
1 gone through the breathing, we've gone through the
2 respiratory, we've gone through the galvanic skin
3 response which is the sweating?
4 A Yes.
5 Q And you have measured that with the
6 electrical discharge and the conductance through the
7 A Through the skin, yes. And then the third
8 one would be the cardiovascular measure. Of course,
9 that is related to heart rate and blood pressure. And
10 again the same kinds of things happen in an arousing
11 situation, increases in blood pressure, the changes in
12 the heart rate which are not terribly diagnostic in a
13 polygraph test but the blood pressure is. And those
14 then apply are governed by the same principles.
15 And the final one is the finger
16 plethysmograph plathismograph which measures the blood
17 vessels in the skin and both the cardiomeasure and the
18 plethysmograph are interrelated in the sense that when
19 energy is mobilized in a threatening situation, blood is
20 redistributed in the body.
21 Q Why is that?
22 A Well, because first of all if action has to
23 be taken, the blood has to be in the striped muscles,
24 the ones that are involved in locomotion and physical
25 activity.
BETTY J. LANPHERE
52
1 Q Striped muscles?
2 A Yes, the muscles in our arms and legs and so
3 on which are under voluntary control. The muscles are,
4 but the blood supply isn't. And so that is
5 automatically redistributed to give strength for action.
6 It's taken away from the gut, the vegetative functions,
7 digestion and so on and moved into those muscles. And
8 so you see the blood pressure going up as the heart rate
9 speeds up and the blood pressure goes up. And you see
10 that in the major arteries.
11 Conversely, it is not good to have your blood
12 out in the periphery where you can lose it by injury.
13 So that any tissue injury that would be the result of
14 combat or trying to climb a tree or something like that
15 would cause you to lose blood so that the blood vessels
16 on the surface and the skin constrict to remove blood
17 from the surface where it could be easily lost by
18 injury.
19 And again those things are measured by the
20 polygraph and are part of the same kind of process when
21 you're asking questions and the person is concerned or
22 threatened by those questions.
23 Q What is the physiological mechanism by which
24 the threat is perceived and then these reactions occur?
25 What parts of the body are involved?
BETTY J. LANPHERE
53
1 A Well, it would be depending on the source of
2 the threat whether it is sound or visual or something
3 like that, it would come in through the sensory system,
4 through the eyes, the ears or whatever. It would go
5 through the appropriate parts of the brain that would
6 interpret those signals to cause a perception of the
7 events, a visual image or a sound that we then hear in
8 our brains.
9 And then that is connected to a variety of
10 things and most particularly in the polygraph through
11 the control centers in the lower parts of the brain
12 going down through the hypothalamus and into the lower
13 parts of the brain stem in the medulla where the control
14 centers are for breathing, blood pressure, peripheral
15 constriction, sweat gland activity. And these automatic
16 responses would go through the autonomic nervous system
17 which is peripheral to the brain that controls the final
18 output, which would be sweat glands, heart, breathing
19 and things like that.
20 Q Are is there a definition for the word
21 "autonomic"?
22 A Autonomic comes from the autonomous which
23 means that it goes on on its own. We don't directly
24 control it. It has its own control that is built in and
25 it's essentially autonomous from our conscious, from our
BETTY J. LANPHERE
54
1 will. That's the origin of that term.
2 Q Is this the kind of thing that we experience
3 when, say, somebody runs a red light and runs right past
4 us and we feel some kind of physical reaction that we
5 haven't willed?
6 A Yes, you feel that, you feel your blood
7 pressure changes, you feel yourself stop breathing and
8 your movement is interrupted. Although in a polygraph
9 test typically it is not of the strength that causes
10 that kind of feeling because you're not mobilized quite
11 that much. At least you shouldn't be because the
12 polygraph shouldn't frighten people almost to death so
13 to speak, but the same kinds of reactions occur and they
14 occur very clearly but they may not be perceived by the
15 individual.
16 Q How does the function of the autonomic
17 nervous system, this fight or flight reaction that
18 you've described relate to a situation where a person is
19 afraid of being caught lying?
20 A Well, what it does is translate that into
21 that particular situation such that when that question
22 is asked that the person already knows from the prior
23 review goes to the heart of the issue that they are
24 trying to conceal, they are threatened by that question
25 and they automatically show these reactions that are
BETTY J. LANPHERE
55
1 part of that whole process. And they cannot inhibit
2 them.
3 As Dr. Barland has written even people who
4 are practicing countermeasures who are guilty as you've
5 suggested in your question have extreme difficulty
6 suppressing those reactions. They happen even though
7 you don't want them to happen. In fact, the more you
8 don't want them to happen almost makes them appear even
9 stronger.
10 Q Well, isn't an innocent person going to have
11 some kind of reaction to these vitally important
12 questions even though they are telling the truth on
13 them?
14 A Oh, yes. The big problem is trying to
15 distinguish between the concern that's posed by the
16 inherent information in those questions, the thing of
17 which they are accused. The concern that they have been
18 accused and that as distinguished from the concern that
19 they are going to be caught because they are
20 misrepresenting and that's the flaw in the
21 relevantirrelevant test because it's all rolled up into
22 one question.
23 Q If you'd just take a few sentences and
24 describe where the relevantirrelevant test works.
25 A The relevantirrelevant test basically has no
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1 meaningful comparison questions. It has questions about
2 the issue, the relevant questions.
3 Q For example, did you try to cheat the IRS?
4 A Yes, that would be a provocative question for
5 anybody. It is provocative for me sitting here because
6 I know I have to fill out my tax return next month and
7 it's always a stressful time.
8 Q In the relevantirrelevant test what are the
9 kinds of irrelevant questions?
10 A Irrelevant questions are is today Thursday?
11 Are you in Santa Fe? Are you sitting down? Well, these
12 don't provide any potential concern for that subject.
13 They are not a meaningful comparison. Therefore, there
14 is only one type of question that is important in the
15 test and naturally everybody will react to some degree.
16 And typically to a greater degree than to any of these
17 irrelevant questions.
18 There is no reasonable and standard way to
19 interpret such a test and the research shows that the
20 false positive rate, the rate of finding a truthful
21 person deceptive on the test
22 Q When you say "positive" that means a
23 deceptive outcome?
24 A Yes, positive outcome is a deceptive outcome.
25 Just as a test for cancer a positive outcome is you have
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1 cancer.
2 Q Even though
3 A It's not something you feel good about but
4 it's something that's there. And the same thing is true
5 on a polygraph test. A positive outcome means you've
6 been found deceptive on the test. False positives are
7 innocent people being found deceptive on the test. And
8 the research shows that the relevantirrelevant test has
9 a false positive rate somewhere between 80 and 100
10 percent. And so even though it detects all the guilty
11 people, it falsely labels almost all the innocent people
12 as deceptive. It's a useless test.
13 Q How do you construct control questions then
14 to provide these kinds of comparisons that you were
15 talking about to avoid that problem of the nervous or
16 tense reaction to the relevant questions overriding
17 everything else?
18 A There are two general ways of doing this.
19 The more traditional way the one that Dr. Barland
20 discovered when he attended the Military Police School
21 in 1970 is called the control question or probable lie
22 question.
23 Q How does that work?
24 A That is a question that is designed in such a
25 way that virtually everyone answering it will either be
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1 misleading in some way, withholding something about it
2 or not sure that they are telling the truth. These are
3 very general questions. They cover a long period of a
4 person's prior history and they are vague.
5 And they would be things suppose if we
6 took the example here of an alleged attempt to defraud
7 the Internal Revenue Service. A control question would
8 be posed to the subject in this way: "Now, John, since
9 this is a question of alleged dishonest behavior and
10 trying to cheat the Government and so on, I need to ask
11 you some questions, some other questions" and this is
12 after reviewing the relevant questions "Some other
13 questions that go to your basic character, your basic
14 honesty to see if you're the kind of person that's done
15 anything like this in the past, to see if you're the
16 kind of person that would cheat the IRS and lie about
17 it.
18 So I need to assess you in that regard and I
19 have to ask you these important questions, also. So if
20 I asked you before 1980" suppose we're going back to
21 the time prior to the alleged incident, we want to
22 separate these in time "Before 1980 did you ever do
23 anything that was dishonest or illegal? Did you ever do
24 anything did you ever take something that didn't
25 belong to you? You'd be able to answer that no,
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1 wouldn't you?"
2 And they often look at you and squirm a
3 little bit and many people would say, "Well, yeah, I
4 have done something like that."
5 And you'd say, "Oh, what was that?"
6 And they'd say, "Well," they usually start
7 with something very minor "Well, I remember when I
8 was a kid, I stole a candy bar from the store."
9 "Oh, yeah, but you were a kid then, weren't
10 you? You wouldn't do anything like that now that you
11 know better, would you?"
12 And your attempt is to put them off
13 psychologically and put them in this bind of being
14 embarrassed or reluctant to make any more admissions to
15 you because you'll think that they are a thief and
16 therefore did this thing of which they are accused. Or
17 they just, you know, they are embarrassed and they don't
18 want to say anything more or something like that.
19 And you try to get them in that situation now
20 and they think, "Oh, my goodness, even though I didn't
21 do the thing of which I'm accused, when he'll ask me
22 that on the test, I'm going to have a problem, but I
23 don't want to tell him because he'll think already that
24 I am guilty."
25 Or they may not know. They'll have to search
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1 their memories and say, "Well, what applies here? What
2 does it mean? Dishonest or illegal? Is he talking
3 about serious talk or whatever?"
4 And you try to keep it as vague as possible.
5 Most people have a problem with that question. And
6 therefore on the test if they are truthful on the
7 relevant issue, they should be concerned about failing
8 the test because they have a problem with that question.
9 If they are deceptive on the relevant issue,
10 this is a relatively minor question and will provoke
11 much less reaction than their deception on the issues
12 that put them in great jeopardy, mainly cheating the
13 IRS.
14 So you see a differential reactivity and that
15 works generally quite well. The problem with it is that
16 it's very manipulative, it can be very evasive and
17 intrusive and the federal government has been looking
18 into the problem of that kind of invasion of privacy and
19 so on and it's cumbersome to use.
20 Q You are basically trying to trick the
21 polygraph subject?
22 A You're manipulating them into sort of being
23 concerned about something for a reason that is exactly
24 the opposite of what you're using it for. And also it
25 gets them thinking about things. It can be upsetting to
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1 people and furthermore you can't be certain that they
2 are, in fact, lying. That's why it's called a probable
3 lie. It's not an absolute known lie and so there is
4 that possibility too that may not work.
5 Q What is the other method of formulating
6 control questions?
7 A That's called the directed lie.
8 Q Could you explain that.
9 A In that test instead of manipulating the
10 subject that way, you do it much more straightforwardly.
11 You first conduct which should be done with any
12 polygraph test what is called a stimulation or number
13 test where you explain to the person you need to get the
14 instrument adjusted. Everybody's reactions are
15 different. Everybody's pattern is different so that you
16 need to see what their reaction looks like when you know
17 they are telling the truth and when you know they are
18 lying. So you can see what the difference is and you
19 can then use that to interpret the main test.
20 And then you say, "I want you to pick a
21 number between three and six. Tell me what the number
22 is."
23 "Five."
24 "Okay, on the test I want you to answer no to
25 all the numbers that I ask you and that way you will be
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1 telling the truth on all the numbers except five and
2 when you say no to five that will be a lie and then I
3 can see what your pattern of reaction looks like when
4 you lie and when you tell the truth."
5 So you run this test and then you review the
6 questions on the main test. And you say, "On this test
7 I also need to have some questions that I know you're
8 truthful to and ones that I know you're lying to so I
9 can make sure that I continue to see what your reaction
10 looks like when you lie and then I can use that to
11 compare to the other questions about the fraud or
12 whatever it is and see if the reactions to those are the
13 same as when you lie to this or different so I can
14 interpret that test."
15 Very straightforward. And then you
16 Q Let me ask first on the peak of tension test
17 you talk about you run through with them is there ever
18 any doubt about which number they picked from looking at
19 the chart?
20 A Oh, yes, sometimes there is a doubt. Usually
21 it is very clear but some subjects don't show much
22 differential reaction or what they do is they show their
23 big reaction before you ask that because they know it's
24 coming next. You do them one, two, three, four, five,
25 six, seven.
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1 Most of time there's a decent reaction, but
2 it doesn't matter. It's what you tell the subject that
3 really counts. Creating expectations in this situation
4 that they are going to fail the test if they lie and
5 they are going to pass the test if they tell the truth
6 and you will be able to see which it is from this test.
7 That expectation is what focuses their concern on the
8 relevant or the comparison questions when they are
9 taking the main test because that is what they have been
10 led to expect.
11 And, in fact, that procedure then is what
12 produces the effect that helps you to be accurate on the
13 main test. So as I was saying before then you say to
14 the subject, "Okay, now, these questions I need you to
15 answer truthfully. Is your name John? Do you live in
16 New Mexico?"
17 "Now, the next three I want you to answer
18 with a lie. These are things that everyone has done.
19 So I want you to answer no and when you answer no, I
20 want you to think of a time you did this but don't tell
21 me what it is. So when you answer no, you will be
22 certain that that's a lie."
23 And then I ask, "Before 1980" say that is
24 the cutoff date "Did you ever make even one mistake?"
25 Often they will sort of laugh and say, "Well,
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1 sure I did."
2 And you say, "Well, don't, I want you to lie.
3 I need to have you lie to that question."
4 "Oh."
5 "So I want you to answer no."
6 And then, "Okay."
7 "I want you to think of a time you did that.
8 You got something in mind?"
9 "Yes."
10 "Fine." Next question, "Before 1980 did you
11 ever do something that you later regretted?"
12 That's the nature of the questions.
13 Everybody can then answer no and know that they are not
14 telling the truth because everyone has done these
15 things. And then I'll be able to see on the test your
16 reaction to those questions and see if the reactions to
17 the questions about the IRS are the same or different.
18 And the underlying theory is that the guilty
19 person is still going to be most concerned about the
20 relevant questions. That's where the jeopardy is. And
21 then they will be saying, "Oh, he knows what my pattern
22 looks like when I'm lying because he can see it on that
23 question that he told me to lie to and he's going to see
24 that this is the same and I am going to be in big
25 trouble."
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1 On the other hand the innocent person should
2 be sitting there saying, "Well, I know I only reacted
3 when I lied on the number test and I shouldn't have any
4 problem with that, but, boy, I hope that he can see the
5 difference."
6 And their concern gets focused on those
7 directed lie questions and they often think very hard to
8 make sure they have something in mind when they answer
9 no and that produces reactions.
10 Q Whether you use the probable lie or the
11 directed lie control question, is there any fundamental
12 difference in the underlying scientific theories and
13 scientific facts upon which they are based?
14 A No. The only difference is the simplicity
15 and straightforwardness of the actual running of the
16 test and the certainty you have that they are lying to
17 those questions.
18 Q Have labortory and field studies been
19 conducted on the control question technique?
20 A Yes.
21 Q And have studies been conducted on both the
22 use of the directed lie control question and the
23 probable lie control question?
24 A Yes.
25 Q And why don't we start with the early
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1 studies, can you tell us how those studies were
2 conducted and what the results were?
3 A Well, there are two types of studies. There
4 are laboratory simulations where you set up a mock crime
5 as we call it which simulates a real life situation and
6 gets the person psychologically in a similar state as
7 they would be in an actual polygraph on a real test. We
8 try to make that as realistic as possible if it's done
9 well.
10 And there you have control over all of the
11 variables in the sense that you know ultimately who is
12 guilty or innocent so you can verify every case. The
13 disadvantage of a laboratory study is it isn't an actual
14 case and we don't know with certainty that people are as
15 emotionally involved in it as they would if they're
16 accused of a crime.
17 Q You have to test the hypothesis?
18 A You test that hypothesis that way and you can
19 explore a lot of things but in order to then generalize
20 it to the real field situation as we call it, actual
21 polygraph tests in real cases you also need to gather
22 information and do studies in the field settings where
23 you have tests that are run on actual suspects in real
24 cases and then try to independently verify those using
25 criteria independent of the polygraph such as
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1 confessions, incontrovertible physical evidence and
2 things like that to determine who was, in fact, telling
3 the truth on the polygraph and who was, in fact, lying.
4 Q I believe you have established that the
5 polygraph is based on undisputed principles of
6 physiological reactions of the human body through the
7 autonomic nervous system that are caused when threats
8 are present?
9 A Yes, threats or concerns.
10 Q And the scientific hypothesis of the
11 polygraph is that the threat of detection of deception
12 will cause those reactions in a measurable fashion; is
13 that correct?
14 A Cause them in a measurable fashion and the
15 subject will be unable to inhibit those reactions.
16 Q And the hypothesis of the control question
17 technique is that by comparing the important lies
18 against the unimportant ones, you can separate the
19 guilty from the innocent? The lying from the nonlying
20 by measuring and comparing their reactions? Is that
21 essentially the hypothesis of the control question
22 technique?
23 A Yes, except that I need to correct one thing
24 that was implied by your question and that is saying
25 that separating the important lies from the unimportant
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1 lies in this sense that's true for the guilty person
2 because if they are lying to the relevants or lying to
3 the controls or comparisons, the lies on the relevants
4 are the important lies for them and they will produce
5 the biggest reactions.
6 For the innocent people there is only one set
7 of lies and that's the lies on the comparison or the
8 control questions. They are telling the truth on the
9 relevant questions and so that is why the controls
10 should produce the bigger reactions.
11 Q And were your laboratory studies to test the
12 application of those underlying scientific principles to
13 the hypothesis we just talked about conducted according
14 to the scientific method?
15 A Oh, yes, very scrupulously.
16 Q Did it differ in any substantial degree from
17 other kinds of tests of scientific hypothesis to
18 determine the theories of the applications of known
19 science to a particular application would prove to fit
20 the hypothesis?
21 A No, it was the same effect. That's why I
22 felt that I was particularly suited to do this research
23 that I thought would put it to rest when I first got
24 interested in it because my training was in
25 psychophysiology and science and nobody had done this
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1 kind of work applying those scientific principles prior
2 to that time.
3 And so we set out to do that 25 years ago and
4 did it very carefully. And others have followed suit.
5 I think our research to be, you know, to risk not being
6 too humble set a standard and created an interest in the
7 psychological and psychophysiological community that
8 stimulated a tremendous amount of research in this area
9 and it became a major interest in the society for
10 psychophysiological research.
11 Q And were the results of the research
12 published?
13 A Oh, yes, we published them in many scientific
14 journals.
15 Q How many laboratory tests of the control
16 question technique have been conducted since the first
17 one that Dr. Barland worked with you on?
18 A Well, I don't know an exact count. Perhaps
19 Dr. Barland keeps track better than I do but I would say
20 there are references in the literature of hundreds of
21 reports and studies, but the ones that are I think high
22 quality studies number among many dozens at least. And
23 that would include the laboratory studies and the field
24 studies.
25 Q And do those studies on a whole support the
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1 underlying hypothesis of the control question
2 application or the underlying scientific principles?
3 A Yes, they do with this one clarification and
4 that is when the results show a fairly high rate of
5 inaccuracy, that is expressed in terms of false positive
6 errors. Namely, some studies show and these studies
7 tend to be the weaker studies methodologically but some
8 studies have reported that innocent people failed the
9 polygraph test, the control question test to a degree
10 that causes some concern. Maybe 30 to 40 percent false
11 positives, but the better studies don't show that
12 effect.
13 They show a slight difference in false
14 positives as opposed to false negatives. The latter
15 being guilty people passing the test such that the error
16 rates are approximately 5 percent perhaps on guilty
17 people and 10 percent on innocent people. But the
18 principles I think are generally established with
19 virtually all the studies except for that one thing that
20 the false positive rate varies but they still show the
21 results in the predicted direction.
22 Q You've mentioned generally what your goal was
23 in setting about in the laboratory studies that you
24 initially conducted. Can you tell us just in a
25 narrative way how you set about physically doing it?
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1 A Well, with the mock crime studies what we do
2 typically is we set up a situation where we recruit
3 people from the general community. We try not to use
4 college students. Dr. Barland used college students
5 because they were available and it was our first study,
6 but we try to use people from the general community or
7 prison populations. People that you would expect to see
8 in a real polygraph test. We want a sample from that
9 subset of people.
10 And then what we do is we put an
11 advertisement in the newspaper where we put it in the
12 help wanted column. Parttime help wanted. Participate
13 in an experiment for pay and possible bonuses. Call
14 this number at the university.
15 They call up and the secretary makes an
16 appointment for them after asking some screening
17 questions. We don't want people who have had polygraph
18 tests before because we don't know how that affects
19 later results. And then they are given an appointment
20 and are told to come to the university at a certain time
21 and a certain place.
22 One way we have done this is when they
23 arrive, there is a note on the door. There is nobody
24 there. And the note says, "Go into this room. There is
25 a tape recorder there. Put on the headphones and play
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1 the tape. You will get your instructions by tape
2 recording."
3 They're in a strange place they have never
4 been in before and people are anxious about that anyway,
5 and now this is a sort of Mission Impossible scenario.
6 They put on the headphones and they hear their
7 instructions. Now, if they are a guilty subject
8 assigned to the guilty condition, what they would hear
9 is a description of a theft that they are going to
10 commit. A quote, "mock theft" but it's done very
11 realistically.
12 They are told, "On another floor in a
13 secretary's office there is a cash box in a desk drawer
14 that contains an envelope with a ring in it or a rare
15 coin or money. Your job is to go to that place. Make
16 sure no one is around and no one observes you. Go in
17 and find that cash box and find that envelope and take
18 the ring out of it and conceal it on your person. Make
19 sure nobody sees you.
20 If somebody comes in, the secretary might
21 come in, you'd better have been alibi ready. If you
22 don't have an alibi that convinces that secretary, you
23 are going to be disqualified and you won't even be paid
24 for your participation."
25 Of course, we always pay them. We want them
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1 to feel motivated to get away with this. And also, you
2 know, "You are to do this, not be observed and come back
3 and then somebody will come and get you. And then an
4 experimenter comes to get them and you will be given a
5 polygraph test by an expert. He won't know whether
6 you're guilty or innocent. Some of the people are
7 innocent. They just left the floor and came back. Some
8 are guilty like yourself.
9 And you are going have to take a polygraph
10 test and your job is going to be to convince that
11 polygraph examiner that you didn't take the ring or
12 didn't take the rare coin. If you do that, you're going
13 get a bonus." In fact, we've offered bonuses anywhere
14 from $10 to $500 for being successful in passing the
15 polygraph. The amount of money doesn't seem to matter.
16 It's very compelling. They get very involved.
17 "But if you fail the test or you admit
18 anything, you're not going to get that bonus and if you
19 confess, you're not even going to get paid."
20 That's the guilty person scenario and then
21 they are given this polygraph by an examiner who doesn't
22 know whether they are guilty or innocent using standard
23 polygraph techniques, standard interpretation techniques
24 like the numerical scoring you described earlier and
25 makes his decision based only on the polygraph charts
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1 and the information he has from that.
2 The innocent person just leaves the floor and
3 comes back. They are told generally what the theft was.
4 They didn't do it. And they are also told that their
5 job was to convince the examiner that they didn't do it.
6 And if they do, they will also get the bonus. But if
7 they fail, they aren't going to be paid. So both
8 subjects, guilty and innocent subjects, are motivated to
9 pass this test just like in real life. And it is a very
10 effective procedure. We have used it repeatedly and
11 others have used it and it generally produces accuracy
12 in access of 90 percent on the polygraph tests
13 themselves.
14 Q So the scientific laboratory test confirms
15 the hypothesis that the polygraph machine can detect
16 deception reactions on nervous testimony?
17 A Yes, and does it with a high degree of
18 accuracy. And each of the measures we have talked about
19 have been analyzed extensively and each one contributed
20 significantly to that decision.
21 Q Are there some that are better than others?
22 A Yes. The skin conductance response is the
23 most productive and the respiratory and the
24 cardiovascular are about equally productive but that
25 varies from one person to another. That's why we
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1 measure a number of things.
2 Q And in addition to measuring a number of
3 things, you measure one person's reaction against that
4 same person's reaction?
5 A That's right. What we call within subject
6 comparison.
7 Q Why is that important as opposed to having
8 numbers on a chart that are used for everybody?
9 A Because there is no standard that could be
10 developed that way. Each person is different. Every
11 set of physiological activities are somewhat different
12 from everybody's elses and you have to make that
13 comparison so their idiosyncrasies are factored out and
14 what you're left with are the pure comparisons.
15 Q You said the accuracy rate was 90 percent?
16 A The accuracy rate is 90 percent. It usually
17 runs about 95 percent on the guilty people that we
18 detect the greatest majority on. On the innocent people
19 we have somewhat more false positives than false
20 negatives in the laboratory, also.
21 Q So the accuracy rate all together is
22 somewhere between 90 and 95 percent for all test
23 subjects?
24 A That's right. But what I should point out
25 when a person passes a test, we have higher confidence
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1 in the accuracy of that result than we do when a person
2 fails because more innocent people fail than guilty
3 people pass.
4 Q In coming up with the accuracy rates you have
5 to score the examination; is that correct?
6 A Yes.
7 Q What is the method used for scoring an
8 examination?
9 A The primary method and the one that has been
10 in use the longest and has the most research in is the
11 numerical scoring system. And that involves making a
12 set of comparisons according to a set of rules. And our
13 research has helped to develop the rules and refine them
14 such that you inspect the relative size of reactions to
15 the relevant and the control questions for each of the
16 physiological measures separately and you assign a
17 number to that comparison that reflects the amount of
18 observed difference.
19 If there is no noticeable difference taking
20 into account the variabilities of tracing for that
21 subject, if there is no noticeable difference, you
22 assign a zero. If there is a noticeable difference, you
23 assign a one, two or three depending on how strong the
24 difference is. Three being the max and being a very
25 dramatic difference. And one being a noticeable
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1 difference but not really huge. And you assign a
2 positive number if the reaction to the comparison or
3 control question is greater and you assign a negative
4 number if the reaction to the negative question is
5 greater.
6 You do each for the relevant question by
7 comparing to the control or comparison questions and you
8 do it for each of the physiological measures and you do
9 it for one chart which is one representation of the
10 question sequence which may have three or four relevant
11 questions. And you repeat the process for the second
12 chart and the third chart. We always run at least three
13 charts, and then we add all the numbers.
14 Q Why do you run three charts?
15 A Well, because like any psychological system,
16 and here we have a biopsychological system which makes
17 it more complex, there is variability from moment to
18 moment. The person's attention and reactivity may vary.
19 And what goes through their mind at any given instance
20 may be a little different than what goes through their
21 mind the next time.
22 So to get a steady and consistent estimate,
23 you repeat the procedure several times so that the noise
24 factors, those random variations tend to be averaged
25 out. And what emerges is what should be the true
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1 response of that person to those questions.
2 Q Is it an accepted procedure in the field to
3 judge the outcome of a polygraph by simply one of the
4 charts or one of the questions or one of the
5 physiological responses?
6 A No. In fact, it would not be admissible as
7 evidence in the State of New Mexico. It would not be
8 accepted procedure. It would be a violation of the
9 licensing regulations both here and the State of Utah to
10 do such a thing.
11 Q What is the global scoring technique?
12 A It is a procedure whereby somebody just looks
13 at the charts, gets an impression and says, "I think
14 this person is deceptive or I think this person is
15 truthful." And doesn't go through a systematic
16 procedure of applying a set of scoring rules and writing
17 down numbers and adding them up to come to a conclusion.
18 Q It's subjective rather than objective?
19 A That's correct. And even people who have
20 been trained in numerical scoring if they don't
21 systematically use the numerical scoring in a test make
22 as many errors as people who have never been trained in
23 it and used a global system. So the application of the
24 system itself is crucial. You can't just look at the
25 charts and say, "Well, I know how to do numerical
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1 scoring, I don't have to do it here." Because you make
2 just as many errors if you've never learned how to do it
3 and have always done global scoring.
4 Q Which of the two scoring methods is the
5 accepted accurate method in the field?
6 A The numerical scoring. And, in fact, the
7 rules of evidence in New Mexico specifies it has to be
8 scored quantitatively by an accepted method.
9 Q Now, how many laboratory tests have you
10 personally been involved with yourself? Each one
11 involves a number of tests I assume?
12 A Sometimes we run 120 subjects in a given
13 experiment. I have been directly involved in I would
14 have to estimate probably 15, 12 to 15 studies in my
15 laboratory and often in collaboration with other
16 colleagues and students and former students. That is
17 just laboratory and I have been involved in field
18 studies, also.
19 Q Let's go to field studies then. How do field
20 studies work?
21 A The reason you do them as I mentioned before
22 is because the laboratory studies, even with all the
23 control they have, cannot be taken as certainly
24 representing the psychological factors present in an
25 actual criminal investigation. And so we need to be
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1 able to generalize the results to the real situation and
2 you have to verify it by seeing if it works in the real
3 situation.
4 You give up a certain amount of control when
5 you do that because you can't determine in advance who
6 is going to be guilty and innocent and you can't
7 randomly assign them to those conditions like you would
8 in a laboratory study. And you often have some
9 difficulty determining was this person really telling
10 the truth or lying. If we had a sure fire way of doing
11 that, we wouldn't need polygraphs or court trials so it
12 is much more difficult but it can be done.
13 It is very difficult to do a study. It takes
14 a long time so what you do you have to find a source of
15 cases where you can go back and retrospectively
16 determine who was, in fact, lying and who was, in fact,
17 telling the truth. We do that by inspecting case files
18 to find confessions where there is no indication that
19 the person confessed as a result of a plea bargain or
20 confessed falsely or something like that. And those
21 confessions can be useful to determine whether a person
22 was deceptive.
23 And also in cases where there are other
24 suspects that they've polygraphed that can be used to
25 collaborate another person who took the test and was not
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1 the guilty person. Especially when there is no
2 relationship between the two individuals so you can
3 constitute a verified innocent group and verified guilty
4 group using confessions and other kinds of evidence.
5 We did a big study like that with the U.S.
6 Secret Service where we got a sample of cases from their
7 case files and we used a combination of confessions and
8 very compelling physical evidence that confirmed the
9 confession. And then you take those cases and you have
10 you can do two things.
11 You can take the original examiner's result
12 that they came up with during the investigation and see
13 how well they did because they didn't have the
14 confessions at the time. That's why they were doing the
15 polygraphs. And you can see how well they did and that
16 would be the original examiner's decision.
17 You can do blind independent interpretations
18 by taking the polygraph charts and having somebody who
19 has no case facts simply do a numerical scoring of the
20 charts and make a decision and see how well they do
21 comparing the guilty and innocent and analyze them using
22 computers. We have done all three and others have done
23 various combinations of things like that.
24 Q Let me just ask about those methods of
25 scoring you've just talked about. The original examiner
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1 may score an exam and come up with a score?
2 A Yes.
3 Q What is the advantage of the blind
4 examination?
5 A Well, there are advantages and disadvantages
6 of the blind interpretation. The advantage is that the
7 blind interpreter doesn't have any case facts and can't
8 be influenced by any possible predispositions to want to
9 believe or disbelieve this particular suspect.
10 Q They just measure the difference between the
11 control and relevant questions on the charts?
12 A That's right. They look at the charts and
13 come up with the scoring and also they don't interact
14 with the subject so they can't be influenced by the
15 subject's demeanor, which can be useful sometimes but it
16 can be very misleading. So you don't want to have the
17 influences if you want to see just what the polygraph
18 charts tell you.
19 The disadvantage is, and we have shown this
20 by research, is that an experienced examiner and
21 investigator who has the case facts at their disposal
22 actually produce more accurate interpretation of the
23 charts in general and makes more accurate decisions and
24 fewer inconclusive results than the blind interpreters
25 so you get different kinds of information from the two
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1 types of analyses.
2 Q Is there a correlation though between the
3 scores of the blind examiner and original examiner
4 assuming they are ethical?
5 A Oh, yes. And especially if they are
6 welltrained. Many have done studies where one was the
7 original examiner and the others were the blind
8 interpreters and the rate of reliability among our
9 separately assigned scorers and the accuracy rates were
10 extremely comparable and high.
11 Q To compare the reliability and accuracy and
12 validity rates of the control question numerical scoring
13 polygraph technique that is the standard in the field
14 with other kinds of psychological and psychiatric
15 evidence, you have mentioned before that the rate is 90
16 to 95 percent for the polygraph. Can you tell us how
17 that compares to other forms of evidence that are
18 accepted in court? Historically psychological tests and
19 psychological interviews that result in conclusions?
20 A Well, generally the accuracy and the
21 reliability of the polygraph is higher than most of
22 those except for the machine scored tests like the MMPI
23 where the reliability is one because the machine scores
24 it and you know it is perfect.
25 Q When you talk about reliability, you're
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1 talking about between different examiners?
2 A Or different rescoring of the same set of
3 data when it comes to validity which doesn't measure
4 what it is supposed to measure. It is often very
5 difficult to even validate many psychological tests
6 because of independent criterion.
7 Q And the things which are validated often
8 fallible for example, if you gave somebody a
9 Rorschach and you concluded they suffer from
10 schizophrenia, how do you determine that is an accurate
11 diagnosis?
12 A Well, you look at other behaviors and you
13 say, "Yes, this person in other situations showed
14 schizophrenic behavior." The problem is what
15 schizophrenic behavior? So we get in very complicated
16 processes where the criterion itself is as different as
17 the tests and that's why you get so much dispute about
18 these things.
19 "Well, no, he is not schizophrenic, he is
20 really a borderline personality." And so on so the
21 reliability of psychiatric diagnosis has been shown in
22 medical research and psychological research to be much
23 lower than what you see in polygraph tests that are
24 properly conducted. There are many other kinds of
25 evidence, intelligence tests that are probably much
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1 better but only with respect to the standardization
2 sample.
3 So we see a lot of dispute about those things
4 when they are used on groups against which they were not
5 developed. Then you have this problem of validity and
6 there is a lot of dispute in the psychological community
7 and the legal community about those things.
8 When it comes to other kinds of things like
9 the ability of people to identify other people, say, in
10 eyewitness situations, it is often used as very strong
11 and compelling evidence that has been shown to be far
12 worse in terms of its accuracy than polygraphs tests. I
13 mean it is probably the worst thing that we deal with on
14 a regular basis as an important source of information.
15 Q Is it fair to say that there is a known rate
16 of error with polygraphs as a result of the studies that
17 have been done over the years and it is 90 to 95 percent
18 valid in detecting deception or truthfulness?
19 A I would say that is a very fair statement,
20 yes.
21 Q You mentioned the computer score and I want
22 to address that. Now, could you tell us what that is
23 about?
24 A Well, that is a system that was developed in
25 my laboratory in collaboration with my former student
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1 and now colleague, John Kircher, and we actually started
2 working on this in the mid1970's. We started doing the
3 analysis with computers, developing some programs to
4 make measurements on the polygraph charts directly using
5 computers and taking the electronic signals and feeding
6 them into the computer. And when John Kircher came to
7 study with me in 1977, he started out at my urging to
8 use computer techniques so that we could analyze all the
9 stuff with the computers.
10 Q It is fed from the sensors right into the
11 computer?
12 A Yes. What we do is make electronic
13 measurements and we can extract features from the
14 recordings that may be diagnostic and do a lot of
15 analysis to pick out which things do the best things of
16 discriminating between people who are truthful and
17 deceptive by making comparisons to their reactions to
18 the control and relevant questions.
19 And over a period of time John and I
20 worked on this for about four years where we got it
21 operational and where we screened over a period of
22 longer than I think in excess of 2,000 different
23 features that we could extract from these simple
24 recordings. And we developed computer models that are
25 analytic solutions that are able to discriminate between
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1 truthful and deceptive people on these tests with a very
2 high degree of accuracy and as a result of that we
3 developed a system which is actually now in use in the
4 field.
5 That is the computerized polygraph system
6 which is the one I used in this test that is under
7 discussion here today. And others have developed
8 similar approaches although in our opinion they are not
9 based upon sound procedures and we would not find them
10 acceptable.
11 But the one that we've used have been
12 subjected to scientific investigation. It has been
13 published in first rate scientific journals and other
14 places and produces an automatic fully reliable analyses
15 that gives you the result in terms of a probability that
16 the person is truthfully deceptive.
17 Q There are advantages to using the
18 computerized system?
19 A Yes.
20 Q What are the advantages?
21 A It is completely objective. There is no
22 subjectivity in the analysis that is done. It is done
23 by an analytic solution using a standard computer
24 program that we developed and you simply run the
25 program. You may have to do some editing of artifacts
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1 if there are some things that shouldn't be scored and
2 should be discounted by the analysis that might exclude
3 certain questions or components where there are
4 distortions and then that is a matter of expert judgment
5 as to which things have to be done like that.
6 But once that is done, then in some cases you
7 have to do more than other cases and sometimes you don't
8 have to do any, depends on the recordings and subject.
9 And you do it automatically and it gives you the
10 analysis and it gives you an analysis that you could not
11 possibly do manually by inspecting the charts.
12 Q There are literally tens of thousands of
13 calculations that are done by the computers?
14 A It takes about five to ten seconds to do it,
15 but it would be impossible for a human to do that.
16 Q Could you give us examples of other
17 polygraphers or government agencies that are using the
18 computerized system?
19 A It was first available to other people I
20 think the U.S. Secret Service bought the first systems
21 and put them into operation and over a period of time
22 have used them for many years. In fact, we did research
23 with them using those systems. The Department of
24 Defense has our system. In fact, Dr. Barland's
25 organization, the Department of Defense Polygraph
BETTY J. LANPHERE
Dr. Raskin's testimony continued:
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