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                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.  

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.  

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.

                       BETTY J. LANPHERE                     


 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                     


 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                     


 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 

                       BETTY J. LANPHERE                     


 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                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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                     


 1               The witness herein, having been sworn to 

 2    testify the truth, testified as follows:

 3                      DIRECT EXAMINATION


 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                     


 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                     


 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                     


 1               THE COURT:  Admitted.

 2              (WHEREUPON, Defendant's Exhibit B 

 3               admitted into evidence.)


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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, 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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.  

                       BETTY J. LANPHERE                     


 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, 

                       BETTY J. LANPHERE                     


 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."  

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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?

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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 

                       BETTY J. LANPHERE                     


 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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