Dr. Honts' July 14^th Polygraph Testimony

THE CLERK: May I call the case, Your Honor?

THE COURT: Please.

THE CLERK: Case Number 97-433, Commonwealth versus Louise Woodward. Counsel introduce yourself to the Court and whom you represent.

MR. JALELIAN: Good morning, Your Honor. My name is Lincoln Jalelian for the Commonwealth. I'm an Assistant District Attorney in Middlesex County.

THE COURT: Is your appearance in, Mr. Jalelian?

MR. JALELIAN: I have submitted an appearance, Your Honor.

THE COURT: Thank you very much.

MS. ROONEY: Good morning, Your Honor. Assistant District Attorney Lynne Rooney for the Commonwealth.

MR. LEONE: Good morning, Your Honor. Gerard Leone for the Commonwealth.

MR. GOOD: Good morning, Your Honor. Andrew Good for Louise Woodward.

MR. CORMIER: Good morning, Your Honor. Philip Cormier for Louise Woodward.

THE COURT: Is your appearance in, Mr. Cormier?

MR. CORMIER: No, it's not.

THE COURT: Would you submit it before the end of the day, please.

MR. CORMIER: Yes, Your Honor.

THE COURT: Mr. Good, let me ask you a few questions. What do you seek with respect to the results of the examination, the polygraph examination, that's already been conducted?

MR. GOOD: What do I seek?

THE COURT: Yes.

MR. GOOD: I seek to have the Court permit Dr. Raskin to testify before the jury.

THE COURT: No, but what do you want --

MR. GOOD: Oh, do you mean today?

THE COURT: No, no, no.

MR. GOOD: I'm not understanding your question, Your Honor.

THE COURT: Well, see, I don't want to ask a leading question. What are you going to do with the evidence of the results of the -- what would you like to do with the results of the evidence of the polygraph test previously administered to the defendant?

Oh, by the way, excuse me for interrupting, I'd like the record to show the defendant is not here, and a written waiver of the defendant's right to be present, has been filed with the Court.

MR. GOOD: That's correct, Your Honor. If I understand your question now, Your Honor, we would seek to offer the results of the test in order to support the credibility of the testimony of Louise Woodward in the event that she gives testimony at the trial.

THE COURT: All right. So, just so I understand, you seek to introduce the evidence in corroboration of the defendant's testimony, is that correct?

MR. GOOD: Support her credibility, yes, Your Honor. I don't know what the word "corroboration" is, but it's to support her credibility, yes.

THE COURT: I don't want to chop words with you, but the common expression, when the evidence from witness B is introduced in support of the evidence adduced by witness A, that the common term for that is corroboration. And indeed, under the aegis of the case called Juvenile I, that was the purpose for which polygraph evidence was permitted. Am I not correct?

MR. GOOD: You are, Your Honor.

THE COURT: Just so there's no confusion, you are not seeking to introduce the polygraph evidence as evidence other than in support of or corroboration of the testimony of Louise Woodward.

MR. GOOD: That's correct, Your Honor.

THE COURT: So that, just again so that all the positions are clear, that would mean that, everything else aside, and obviously assuming that the Court allows the introduction of that evidence, that is the polygraph evidence, the polygraph evidence would only come in after Louise Woodward testifies.

MR. GOOD: That's also correct, Your Honor.

THE COURT: Very well.

Now, another question for you - sorry to put you on the griddle so early, but somebody has to do it --

MR. GOOD: Go ahead, Your Honor.

THE COURT: Who has the burden of persuasion?

MR. GOOD: At this hearing, Your Honor?

THE COURT: Yes.

MR. GOOD: I believe we do, Your Honor.

THE COURT: And by what measure?

MR. GOOD: Well, I think the preponderance of the evidence is the general --

THE COURT: Do you agree, Mr. Jalelian? I assume, Mr. Jalelian, you're going to be conducting these proceedings?

MR. JALELIAN: Yes, I am, Your Honor. I don't know what the level of the burden is. I go by Stewart, and Stewart doesn't say what the burden is, it's by "proposed proof of scientific evidence." So I don't know if it's by a preponderance.

THE COURT: Well, that's a, as my friend the late Professor John Kaplan used to say, "an intelligent guess," but what do we do?

MR. JALELIAN: I believe that's all it is. I don't believe that the defendant could be held to proof beyond a reasonable doubt.

THE COURT: Plainly.

MR. JALELIAN: But I think that preponderance would --

THE COURT: All right, we're all in agreement, a preponderance. All right.

Now, I guess we can proceed. Now, ordinarily what we would do is have opening, but since the purpose of opening is to tell the Court what the evidence is, and the Court, I can assure you, knows what the evidence is, let's proceed on then. I don't mean to commit the heinous sin of ever depriving lawyers' vocal cords of some activity, but --

MR. GOOD: I'm satisfied to proceed in that manner.

THE COURT: Mr. Jalelian, I take it you don't need an opening either?

MR. JALELIAN: I do not, Your Honor. The only thing I would say at this point is, it's the Commonwealth's position that this motion can be denied on the papers. In support of that, I would cite Commonwealth versus Stewart, where it says nothing about any type of hearing. And that, based on the submissions of the defendant and the submissions of the Commonwealth, I filed a motion that it be denied on the papers, or alternatively, after --

THE COURT: Don't you think that Daubert-Lanigan requires a hearing, if nothing else, on the science?

MR. JALELIAN: I think that the requirements established by Daubert are met by the submissions in this case if you read Daubert in light of Stewart.

THE COURT: Well, but the submissions are just preliminary to a hearing. Just so there's no mistake, I believe that I am required to hold a Daubert hearing, a Daubert-Lanigan hearing, call it Daubert-Lanigan-Stewart hearing. I believe that the issues for me to decide - and we've gone over this before, but just so everybody agrees - the issues for me to decide are, number one, is the polygraph, and polygraph tests, are they sufficiently scientifically reliable so as to merit the consideration of the Court? Put another way: Is the theory and practice of polygraphy sufficiently advanced so as to merit standing as a science?

And the second question is - it's a sort of a combination - it's, first of all -- and I'm quoting now from Stewart -- "Was the test administered by a qualified tester," Professor Raskin in this case, "who conducted the test?" That is, had he in similar circumstances, demonstrated in a statistically-valid number of independently verified and controlled tests, a high level of accuracy of the conclusions that Dr. Raskin reached in the tests he conducted.

Now, just so again we're all leaving the station on the same train, is the Court's statement of the issues before it correct? Mr. Jalelian?

MR. JALELIAN: My understanding, Your Honor, is that we are here for the first part, the scientifically, the scientific aspect of it, the Daubert portion of it. And if the Court finds that there is no scientific reliability, we don't even have to address the so-called "second prong" of Stewart.

THE COURT: No, that's an incorrect assumption. I did not contemplate holding two hearings.

MR. JALELIAN: I understand.

THE COURT: With that correction, or should I say that "adjustment," I take it you are not in disagreement with the Court's statement of the issues?

MR. JALELIAN: I'm not, Your Honor.

THE COURT: Mr. Good?

MR. GOOD: Well, I would assume, Your Honor, that there are, that when Your Honor speaks to the "scientific reliability" --

THE COURT: Excuse me one moment. The rules are one still camera. Gentlemen, decide which of you it will be.

MR. GOOD: May I proceed, Your Honor?

THE COURT: Carry on.

MR. GOOD: With respect to the statement of "scientific reliability" that Your Honor mentioned, that's correct so far as it goes. I simply want, without referring extensively to the case law now, unless Your Honor wants me to, that there are elements to that, that is, that there are components of what makes up the validity. "Reliability" is one word, and it's a term of art in this context, "validity" is another. And I think the question is validity, reliability being a necessary but not sufficient component of validity.

THE COURT: Well, yes. I mean, for example, if somebody said, "By having a person squash a fly and then looking at the pattern that the squashed fly makes, I can tell you whether the person has an I.Q. of a thousand or is subnormal." That would go to, that is, an assay of that test would go to both validity and reliability, wouldn't it? I think they're really all combined, and I don't think we need to get hung up.

MR. GOOD: I'm not proposing to get "hung up," I just want to make that point, Your Honor.

THE COURT: All right, then. Now, as we've gone over before, the way that the proceedings will go is that your first witness, whoever that might be, Mr. Good, will present me with, as he already has, with his testimony; and then, that will be presented to me in the form of the affidavit, and then cross-examination can begin.

I guess one other thing we ought to deal with. There have been some objections. Under the circumstances, Mr. Jajelian, unless you have further argument that you wish to make, it is my normal practice in judge-tried cases to take the evidence. What weight I may give to it is something else, but at the moment I'm going to overrule the objection.

MR. JALELIAN: I understand that, Your Honor. My last name is pronounced Jalelian.

THE COURT: Oh, I am terribly sorry. Please, thank you, and correct me whenever - any of you - whenever I make a pronunciation mistake. You don't have to worry about correcting any errors of law, that will be done elsewhere.

All right, Mr. Good, who's your first witness?

MR. GOOD: Yes, Your Honor. The first witness will be Dr. Charles Honts, H-O-N-T-S. And, Your Honor, there is in the record --

THE COURT: Two affidavits.

MR. GOOD: -- two affidavits from Mr. Honts. And I have handed up to the clerk this morning a bond-paper copy of the second affidavit.

THE COURT: That's fine.

THE COURT: Can you tell us, please, your full name.

THE WITNESS: Yes, sir. It's Charles Robert Honts: H-O-N-T-S.

THE COURT: And your date of birth, please.

THE WITNESS: 17 September 1953.

THE COURT: All right. And Dr. Honts' affidavits can be marked Exhibit 1 and Exhibit 2.

MR. GOOD: And just so we're clear, Your Honor, Exhibit 1 is the first affidavit submitted.

THE COURT: Yes.

MR. GOOD: And 2 is the second one.

THE COURT: The first affidavit with attachments, and Exhibit 2 is the second affidavit.

MR. GOOD: Thank you, Your Honor.

THE COURT: And I take it that Mr. Honts has copies of his affidavits available for his own reference.

MR. GOOD: I have them here, Your Honor.

THE COURT: And, Mr. Jalelian, you have them as well?

MR. JALELIAN: I have copies of it. I don't have copies of it for the witness.

THE COURT: Very well. Cross-examination may begin.

MR. JALELIAN: Thank you.

Q Dr. Honts, you have a Ph.D. in experimental psychology from the University of Utah, Salt Lake City, is that true?

A Yes, that's correct.

Q And did you receive that -- getting a Ph.D., do you have a specific professor under whom you study?

A Yes, you do.

Q And was that Professor David Raskin?

A Yes, it was.

Q And how long have you known Professor Raskin?

A I've known Professor Raskin since 1982.

Q And that was four years when you first started at the University of Utah, or before that?

A I knew him a little bit before that. We met at the psychophysiology meetings in 1982 I believe.

Q Was that -- in 1982 you received a Masters in Science of Experimental Psychology, is that correct?

A That's correct.

Q And that was from the Virginia Polytech Institute and State University of Blacksburg, Virginia?

A That is correct.

Q And was it as a result of your meeting with Dr. Raskin that you decided to pursue your Ph.D. at that point, or had you already made that decision?

A I was already in a graduate program.

Q If I may, had you already made that decision at that time?

A Yes, I was pursuing a Ph.D. at Virginia Tech and met Dr. Raskin -- well, let me correct myself. I believe I actually met him in 1981, at the meetings in 1981 in Washington, D.C., and discussed, we discussed, we had common interests in polygraph testing. And I had applied to the University of Utah, it was a much more prestigious program than Virginia Tech. And he accepted me as a student. And I went to Salt Lake City in 1982.

Q What kind of polygraph program or polygraph study within the Department of Psychology did the Virginia Polytechnical Institute have, if any?

A Well, they had, there were two psychophysiologists at Virginia Tech when I went there in 1980.

Q What were their names?

A I'm sorry?

Q What were their names?

A Robert Hodes and William Scheck.

Q And could you spell the last names if you know?

A The first one is H-O-D-E-S, Robert Hodes. William Scheck, I am not exactly sure I remember how to spell his name. I think it was S-C-H-E-C-K.

Q And your Masters Degree, did you have to write, not necessarily a dissertation, but something below a dissertation to obtain a Masters?

A Yes, you write a thesis.

Q And what was the general topic of that thesis?

A The general topic was, "Countermeasures Used Against Polygraph Tests."

Q So at that point you had already been interested in countermeasures.

A That's correct.

Q And was that ever published in a peer-review journal, that document -- is it a dissertation, or what is it?

A It's called a "thesis."

Q Was your thesis ever put in a published form?

A Yes, it was.

Q Was it put in the complete form that it was when it was completed for your Masters Degree?

A No.

Q Were there substantial edits between the two?

A The documents are substantially different, and the journals would not publish the length of document that you would write as a Masters thesis.

Q Now, it's true, is it not, you have no medical training of any kind?

A That's correct.

Q And do you have any background in statistics?

A Yes.

Q What statistical background do you have?

A I have a fairly extensive statistical background. I have --

THE COURT: I think what that means is, do you have a degree in statistics; and if you don't, what courses did you take in statistics.

THE WITNESS: Yes, Your Honor.

A I do not have a degree in statistics. I took a number of courses in graduate school on statistics. There was a year-long sequence at Virginia Tech. In addition to that, I took another semester's-length course. I had additional training at the University of Utah. I've been to several workshops on --

Q When you say "training," what do you mean by that?

A A course.

Q How many courses have you had with "statistics" in the title?

THE COURT: Well, these days, titles don't always describe --

Q Where the main focus of the course curriculum was the study of statistics.

A Without looking at my transcript it would be difficult for me to say, but five or six.

THE COURT: And are those semester courses?

THE WITNESS: Yes, Your Honor.

Q Now, you're currently a professor of the graduate faculty of Boise State University in Boise, Idaho?

A That's correct.

Q And that's a four-year university?

A It is, yes.

Q And it gives both Bachelors degrees, Bachelor of Science and Masters and Ph.D.s?

A There are all levels degrees awarded at the university, but not in my department. My current department only gives Bachelors degrees.

Q So it's fair to say - and I don't mean any disrespect - you're a professor of undergrads.

A At this time, yes.

Q Okay. And you've had an opportunity over the course of your career to study the polygraph, is that correct?

A That's correct.

Q And you've studied that predominantly under Dr. Raskin, is that correct, for your Ph.D.?

A Yes, that's correct.

Q And is it fair to say that you know that he has a long history of polygraph study, approximately twenty-five years?

A That's correct.

Q And he's now a Professor Emeritus.

A That's correct.

Q And you are more towards the beginning of your career, is that correct?

A Probably more toward the middle of it I would say.

Q The middle of it. And is it fair to characterize yourself as a protegee of Dr. Raskin?

A Absolutely, yes.

Q And you have a great deal of respect for his views.

A I do.

Q In fact, you've authored numerous articles with him and he with you.

A That's correct.

Q And you share the same viewpoint on the general validity of the polygraph, is that correct?

A Yes, we do.

Q And that viewpoint is that it is generally valid, is that correct?

A That's correct.

Q And how many times, approximately, have you testified for the general validity of the polygraph?

A Approximately?

Q Just a ballpark.

A About twenty.

Q How many times have you testified against the general validity of the polygraph?

A I don't believe there are any against the general validity of the polygraph.

Q Have you testified against the specific validity of specific tests?

A I'd have to look at my C.V. to see if I've actually testified. I know I've been involved in cases where I gave advice that a specific test was not valid.

Q But you never testified to that in a court of law to your memory.

A To my memory, I don't believe I have.

Q Okay. So it's fair to say that you have never under oath encountered a polygraph, or testified under oath to a polygraph that you have not believed in.

A That's correct.

Q Now, and you understand the process by which the polygraph, the measurements, and you've outlined them in your affidavit, is that correct?

A Yes.

Q And what you say in your affidavit you signed under the pains and penalties of perjury.

A That's correct.

Q Now, on paragraph three, you state that, quote, "Polygraph tests" --

MR. GOOD: Which affidavit? Excuse me.

MR. JALELIAN: The first affidavit. Just so the Court is clear and the record is clear, I'm going to do the affidavits in order.

Q Regarding Exhibit A, "Polygraph tests have gained general acceptance in the scientific fields of psychology and psychophysiology, and in the areas of those disciplines devoted to credibility assessment. The polygraph has long passed the experimental stage." That's what you said in your affidavit, is that correct?

A Yes, it is.

Q Now, do you recall an article that you wrote that appeared, entitled, "Psychophysiological Detection of Deception"? I believe it was in 1994 in the American Psychological Society.

A "Current Directions" perhaps?

MR. JALELIAN: If I may approach the witness, Your Honor?

THE COURT: Yes.

A Yes, that appeared in a journal, it's a journal that's owned by the American Psychological Society. The journal is called "Current Directions."

THE COURT: In nineteen ninety --

THE WITNESS: Ninety-four.

Q And the letters "PDD," that stands for psychological detection of deception, is that correct?

A Psychophysiological.

Q And that is a longhand for polygraph, is that correct?

A Yes, it is.

Q And in the article that you just referred to, did you write, "All the applications of PDD, or psychophysiological detection of deception examinations are controversial. Since the early nineteen seventies, a polemic debate has persisted in the scientific literature concerning basic and applied questions about using psychophysiological measures for the purpose of detecting deception"?

A Yes, there is a polemic debate.

Q There is a polemic debate. And, again, do you recall writing in "Law and Human Behavior," an article called "Polygraph Admissibility: Changes and Challenges" with Marion B. Perry?

A Yes, I do.

Q And again you stated, and correct me if I'm wrong, "The accuracy of the control question is a matter of contentious and polemic debate in the scientific literature."

A Yes, it is.

Q Now, if it's a matter of "contentious and polemic debate," isn't that inconsistent with the general acceptance in the scientific community?

A Not at all.

Q Polemic debate is not inconsistent with --

A No.

Q There are two sides on a polemic debate, is that correct?

THE COURT: Well, why don't we define "polemic debate."

THE WITNESS: Yes. Well, there are individuals within the scientific community who believe --

THE COURT: No, excuse me. One scientist's polemic may be another scientist's earnest advocacy.

THE WITNESS: My definition of "polemic" is that it's heated, and often goes beyond the scientific.

Q So there is a heated debate is what you state in those two articles essentially?

A Yes, sir.

Q And you're saying that there is only a heated debate -- there's no heated debate about the general validity?

A Oh, no, there is heated debate about the validity.

Q But there is general acceptance nonetheless?

A Yes. And that depends upon how you define "general."

Q Well, general acceptance -- you're not a lawyer, is that correct?

A That's correct.

Q And you're not a judge.

A No, I'm not.

Q And your view of "general acceptance," when you wrote this affidavit, "general acceptance," did you pick those words particularly?

A Yes.

Q And did you pick them because they are a scientific standard and a legal standard?

A Because they're a legal standard, they're not a scientific standard.

Q So you're making a legal conclusion in your affidavit, despite the fact that in other articles you said, "There's a heated debate," is that correct?

A Yes.

Q And to your mind there is no contradiction between those two.

A No, there is not.

Q Now, on page two of affidavit number one, paragraph five, you state, "Any conscious effort at deception by a rational individual causes involuntary and uncontrolled physiological responses" --

THE COURT: "Uncontrollable."

MR. JALELIAN: Thank you, Your Honor.

Q -- "uncontrollable physiological responses, which include measurable reactions." Is that correct?

A I believe it is.

Q Now, what you're talking about there, and correct me if I'm wrong, is that the theory is that, when asked a so-called "relevant question," or question about the crime, there is some kind of response in the "autotomic" nervous system, meaning the heart rate, the breathing rate, and it's an uncontrollable response, is that correct?

A Some of the things you've said are correct. It's the autonomic nervous system. And, yes, the autonomic nervous system, there are uncontrollable responses. Heart rate may not be one of them, in fact, heart rate is not a useful independent measure, but that's a quibble I think.

Q Heart rate is something that is not controllable by an individual, you wouldn't assert that.

A No, I would not.

Q Now, the polygraph itself measures respiration, sweat, and blood pressure, is that correct?

A Yes. And peripheral blood flow in the surface of the skin.

Q The tip of the fingers, is that correct?

A Yes.

Q So it does not measure, the machine in no way measures detection or lying, is that correct?

A That's correct.

Q So it is not, the term "lie detector" is a complete misnomer, is that correct?

A In that sense, yes.

Q Well, either it is a misnomer or it's not a misnomer.

A Well, it can be considered a lie detector in that the inferences that are drawn --

Q That's not what I asked you, sir. The machine itself does not detect lies.

A In the sense that you're saying that, yes, you're correct.

THE COURT: Well, just so we can move on, it isn't as though there's a machine that has two, that has a needle that swings from a pole marked "truth" to a pole marked "lie."

THE WITNESS: Yes, Your Honor, that's exactly correct, it does not read minds.

Q When you say "it does not read minds," the test itself is a method by which -- you've administered tests?

A Yes, I have.

Q And are you aware of the concept within the field of polygraph that it cannot test intent, but it can test actions? What I mean by that is --

A Yes.

Q -- so it cannot test intent.

A I'm aware of that concept.

Q Do you subscribe to that concept?

A No, not necessarily.

Q In your affidavit, do you indicate anywhere that you do not subscribe to that concept?

A Not that I recall.

Q So it could be in here, you just don't remember?

A I don't recall.

Q Have you written anywhere in any of your writings that polygraph tests intent?

A Well, you need to be very careful about how you define "intent."

Q That's not what I asked you, sir. Have you written in any of your writings that polygraph testing does not test intent?

A It's possible that I have.

Q It's possible. Do you know where it is?

A No, I don't.

Q So, either yes or no, either you know you've written it, or you know you haven't written it?

A It's possible that I've discussed it, I don't recall. I've written a large number --

THE COURT: All right, he said he doesn't recall. Let the rabbit out of the hat if you would.

Q Now, the single best way to design a polygraph test is a test that tests past actions, is that correct?

A Yes.

Q As an example: "Did you shoot," or, "Did you stab," or, "Did you do a specific act."

A That's certainly the simplest, yes.

Q Is it also the most effective from your training and experience?

A I don't know that it's the most effective, no.

Q Have you given or participated in any studies or tests where there has been tests that have included intent questions - "Did you intend to do a certain act?"

A Yes.

Q And have the results been better or worse, in general, regarding the specific act questions as opposed to the specific intent questions?

MR. GOOD: Your Honor, if I may just interject.

THE COURT: What's the grounds of the objection?

MR. GOOD: Just the "better result," if the question were to state what he means by "better."

THE COURT: Overruled.

A We've never run statistical tests to see if I recall.

Q You've never run statistical tests on an intent-type question?

A No.

Q Is that because the intent-type questions are invalid in the field of polygraph?

A Not at all.

Q But you've never tested them.

A Yes.

Q So you're testifying now that you've never had a test on an intent-type question; but, despite that, they're valid.

A Mr. Jajelian --

Q Yes or no, sir.

THE COURT: No, just --

A If you'll let me answer the question.

The field studies that I have authored and co-authored, have included questions that address certain elements of intent, and those questions have been shown to be valid. But what I was saying is that we have not separated questions such as, "Did you deliberately," or, "Were your acts sexual in nature," from, "Did you shoot." So we have not tested that hypothesis specifically. But --

Q So then you don't know whether or not a question on --

MR. GOOD: Your Honor, if we could avoid interruption, it would be very helpful.

THE COURT: Well, here's what's puzzling me, and you gentlemen are perfectly free to disregard it and go on your own way or address it.

If you ask somebody, "Did you shoot somebody," that's a past fact which presumably can be verified one way or another. If you ask somebody, "Did you intend to do something," i.e., "What was your state of mind," I think the question is, how can the polygraph verify that.

Now, if that's not what you're asking, Mr. Jalelian, you just go right ahead.

MR. JALELIAN: That's very helpful, Your Honor, thank you.

A There are certain states of mind that will be clear in a person's memory. If I might give an example --

THE COURT: No, no, excuse me, just so you understand what my puzzle is. Plainly, what we're talking about now is, if I say to you, "I intended to have Corn Flakes this morning, but I had Rice Krispies," you could verify - assuming you had evidence - that I indeed had Rice Krispies. But how would you verify that I intended to have Corn Flakes?

THE WITNESS: I could not.

THE COURT: That, I think, was what Mr. Jalelian's question was.

THE WITNESS: Perhaps I misunderstood what he meant by "intent."

Q You'd agree, would you not, there is no specific pattern of physiological reactions that occur when and only when a person is practicing deception?

A Yes.

Q And you would also agree that there is no known physiological response, or pattern of responses, unique to deception.

A Yes.

Q Because you can have a measurement of the autonomic nervous system, does that mean necessarily that you can predict deception? Is there any causation between the two that you know of?

MR. GOOD: That's two questions. If we could have --

THE COURT: Yes.

Q Just the latter question: Is there any causation between predicting deception and recorded measures on the autonomic nervous system? If you don't understand the question --

A I don't understand the question.

Q It's true, is it not, that other stimuli, not deception, that can cause the reactions that occur, that are measured by a so-called "polygraph machine"?

A Yes.

Q Okay. That could be from full-blown fear, to concern, to apprehension, to even a stomach flu, is that correct?

A All of those things can cause an autonomic response.

Q Okay. And the only thing that the polygraph machine measures is the autonomic responses.

A That's correct.

Q So when you see a polygraph chart, for instance, there'll be, what are there, four lines?

A Usually.

Q Usually. And each one of those lines is a measure of -- is blood pressure one of them?

A Yes, it is.

Q And it would be measuring the blood pressure.

A Yes.

Q Okay. Now, is fear -- you state in footnote fifteen of affidavit number one that "fear is not an important part of the test."

A It's not an important part of the theory of the test.

Q But it's an important part of the application of the test.

A No.

Q It's not an important part at all?

A It can be. It's sufficient, but not necessary.

Q What is necessary?

A Any number of things may produce -- the polygraph is --

Q "May produce" what?

A -- can produce the responses that we see.

Q Including --

THE COURT: Just let him answer, thank you. Carry on.

A The responses that are seen in polygraph tests are very likely multiply determined.

Q And what are the factors that go into it?

A Fear could certainly be the case, fear of detection of deception.

Q If I may --

A Anxiety.

Q So fear, that is an important part.

A It may be.

Q Well, either it is or it isn't.

A It may be.

Q So you can't say one way or another about how fear of detection is an important part.

A It may be.

Q Okay, fear. What else?

A Anxiety, attention.

Q Attention?

A Yes.

Q Meaning whether or not a person's paying attention to the question?

A That's correct, and what questions they're paying attention to. Effort.

Q Effort? What do you mean by that?

A Mental effort - how much thinking is going on during one question versus another.

Q So are you suggesting that the machine measures the effort, mental effort, that a person's putting in?

A Oh, it certainly can, yes.

Q How does it do that?

A Because mental effort produces autonomic responses.

Q And what -- how do you know that?

A It's empirical. There's tremendous literature that indicates that mental activity produces autonomic responses.

Q Is there also a tremendous amount of literature --there's a tremendous amount of literature presented by yourself that deception produces autonomic responses, is that correct?

A Yes.

Q And there's also a tremendous amount of literature on the reverse side that says it's not, is that correct, that it does not produce it?

A That deception does not produce?

Q That's correct.

A No, there's not.

Q There's not?

A There is not.

Q Are you familiar with the writings of Leonard Saxe?

A Yes, I am.

Q And are you familiar with the writings of Professor Iacono?

A Yes, I am.

Q And are you familiar with the writings of Dr. Lykken?

A Yes, I am.

Q And are you prepared to testify under oath that their writings in general do not state that there is no correlation between autonomic nervous system activity and the detection of deception?

A No, their writings state that. You said, "Is there evidence?" And there is very little data in the writings of either Dr. Saxe or Dr. Lykken. Out of the three names you mentioned, Dr. Iacono is the only one who actually has a very active research program. And I believe his research actually supports the detection of deception more than it shows that it doesn't work.

Q Now, in order to show that it doesn't work, in effect, the three doctors, except Iacono, have to prove negatives, isn't that correct? They have to prove that something doesn't cause something else, isn't that correct?

A Yes, that's correct.

Q And isn't that impossible to do?

A No, it's not impossible to do.

Q Isn't it very difficult to do?

A It's more difficult.

Q Isn't it the most difficult scientific undertaking to do in the laboratory and field studies, or laboratory studies?

A You've used a superlative, in that you say it's "most difficult." I'm not sure I agree with that. But it's very difficult.

Q Can you think of anything that's more difficult in your training and experience as a scientist than that it is to prove a negative?

THE COURT: Yes, testifying in court probably.

THE WITNESS: Thank you, Your Honor, that might be one of them.

THE COURT: I don't think we need to get into comparisons of difficulty. The witness has said the obvious, that it's difficult to prove a negative.

Q Now, with a polygraph test, you're comparing the reaction of one question as compared to the reaction of another question, the control question versus the relevant question, is that correct?

A That's correct.

Q Now, the reactions that you're comparing are the reactions on the graph, the measurements of the reactions that are being measured, is that correct?

A That is correct.

Q You compare the two graphs.

A Yes, sir.

Q And the graphs only measure the physiological responses.

A That's correct.

Q And then at some point you have to make an inference based on what you read on the graph as to whether or not there is a stronger reaction to the relevant questions than there is to the control questions, is that correct?

A That is correct.

Q In essence, if someone's blood pressure goes up during one question, it goes up, and doesn't go up on the other question, then you make an inference based on that. If it goes up on the relevant question, you make one inference; if it goes up on the control question, you make another inference, is that correct?

A Yes.

Q So you're assuming for the purposes of it, that the blood pressure reaction is correlated to lie, that assumption.

A That is the inference you make, yes.

Q And that's the assumption implicit in the polygraph examination.

A Yes.

Q And the same with sweating, is that correct?

A Yes.

Q The same with all four of the measurements: You're assuming that the reaction that is measured is correlated to lying, in fact is caused by lying.

A In that particular testing situation, yes.

Q Well, isn't the control-question technique the vast majority of the type of polygraph that's used?

A Yes.

Q So, I mean that's the test that was used in this case, too, is that correct?

A That's so.

Q So the assumptions that I've just underlined that you've agreed to, apply to this case today.

A Those are inferences, yes.

Q The assumptions do too, though.

A Yes, if the assumptions are empirically-based.

Q That's not what I asked you. The assumptions are what you're basing the polygraph test on. That's a yes or no.

A Yes.

Q Now, if there is a greater response to a relevant question - for instance, "Did you shoot Joe?" - that is a question that poses a greater threat to the individual, the subject, is that correct?

MR. GOOD: He hasn't stated whether the person did shoot or didn't shoot yet.

THE COURT: I'll allow the question.

A Would you re-state the question, please?

Q If the relevant question on a hypothetical polygraph test is, "Did you shoot X," and if there is a greater response to that question, that relevant question, than there is to a control question, then the inference that you draw is that the person is lying, is that correct?

A Well, let me --

Q If they deny it.

A You're saying "a relevant" and "a control," and, of course, we would not make a decision based on just "a relevant" and "a control."

Q I understand that, sir. For purposes of the relevant-type question and the control-type question, you draw your inference from the relevant question as compared to the control question. And you look at what question, whether it be the control or relevant question, that poses the greater threat to the person.

A I'm not trying to be difficult, but if you put that in the plural I'll agree with you.

Q Okay, that's fine.

A All the relevants in some, as compared to all of the control.

Q But you also do it on a test with each one because you score each question individually.

A Yes. But it's possible that you might have one anomalous response, and then everywhere else, the predominance of reaction is in the opposite direction.

THE COURT: I think the question directs you to consider what it is that makes you regard an answer as "anomalous," or a response as "anomalous," to use your word. When you're looking at the tape --

THE WITNESS: Yes, Your Honor. The point I was trying to make is that, that Mr. Jalelian was saying that as a "single" relevant and a "single" control.

THE COURT: He conceded that you have to look at the whole tape before you reach a conclusion. But he is saying, when you look at one response, and it's anomalous - that is, it's out of line, the blood pressure's gone up --

THE WITNESS: I see.

THE COURT: -- does that mean something to you? I think that was what his question was.

MR. JALELIAN: That wasn't exactly my question, but I'd like you to answer that question.

Q You compare the response to relevant questions with the response to the control questions.

A Yes, that's correct.

Q And what you look at is reactions, when you're analyzing the data, you look at the reactions, which is a greater reaction, is that correct?

A Yes, if the preponderance is to the relevants, then the inference is that the relevant questions are what is bothering the subject.

Q And you look to the reaction of the question that poses the greater threat to the individual, is that correct?

A I would not use the word "threat," because I don't believe threat is, I don't believe we had any evidence to label the underlying psychological state as "threat." What we know is that their psychophysiological responding is isolated on that type of question.

Q And in cases where there's a criminal prosecution, or a criminal act, in which there is a potential penalty of incarceration or possibly death, chances are that there's going to be a threat from that question, is that correct?

A Chances are.

Q So it is threat, threat is one of the factors.

A It is one of the factors.

Q And fear is another of the factors.

A It may well be.

Q And "fear" and "threat" would go hand-in-hand to the person, the subject of the test, isn't that correct? If they are threatened by incarceration, certainly they fear it.

A They might.

Q They might? You're not prepared to say anymore than "might"?

A Well, I'm not willing to buy into absolutes like that.

Q More than "might"?

A There are certain types of people who might not.

Q That might not fear incarceration or death.

A They might not. There's an enormous amount of variability --

THE COURT: I don't think we have to get into that particular branch of philosophy.

Q Now, in paragraph five, you also outline the type of control question, control question technique polygraph test that we've been just discussing. And has there been any substantial change to what has been outlined in your affidavit -- was what you said in your affidavit accurate to polygraph tests that were administered in 1987? Has there been any substantial change in the theory as outlined in paragraph five of your affidavit?

MR. GOOD: Can he be shown paragraph five?

THE COURT: I thought he had a copy, Mr. Good.

A And your question to me is has the theory changed since 1987?

Q If you had written this in 1987, would it have been accurate?

A That particular section, yes.

Q So the question, the way you outline the control question is the same that it has always been since 1987, it hasn't changed.

A That's correct.

Q How far back does this go?

A The probable-lie section would go back a very long time, probably --

Q 1940-1950?

A Well, the first written description of the probable-lie control is 1947. It evolved certainly to 1960.

Q So from 1960 until today, the control-question technique has not changed.

A The theory underlying it, the rationale has not, no.

THE COURT: "Has not" what?

THE WITNESS: Has not changed.

Q Now, in paragraph six you indicate the directed-lie comparison question. That is similar to, but somewhat different from the control question. Is it a subset of the control question technique?

A Yes, I believe that it is.

Q And you indicate that it's used, has been used by the Federal Government for at least twenty years, is that correct?

A Yes, sir.

Q And you indicate ten different federal agencies that have used it.

A Yes.

Q That you're aware have used it. You don't include in this list the Federal Bureau of Investigation, is that correct?

A No, I do not.

Q And you don't include in this list the National Security Agency, is that correct?

A That's correct.

Q Now, is it true that the National Security Agency does a large majority of polygraphing within the Federal Government?

A I don't know for certain, because the actual number of tests that they run is classified. But they run a lot of polygraph tests, yes.

Q Comparatively, do you believe, based on what you've read, that they've run at least as many, or not more, than all of these ten other agencies combined, if you know?

A I don't know.

Q Now --

THE WITNESS: If I might --

MR. JALELIAN: There's no question before you.

THE WITNESS: I'd like to get a copy of my affidavit, it might make things more easier.

MR. JALELIAN: I have no objection to that.

Q Now, again, going back to the article called "Psychophysiological" --

THE COURT: Just a minute.

MR. JALELIAN: Your Honor, if I may, I've just noticed that Professor Raskin is in the courtroom. He is also a witness. And I would ask that the witnesses be sequestered.

THE COURT: Are any of your witnesses in the courtroom?

MR. JALELIAN: No.

THE COURT: If you wouldn't mind. All right, carry on.

MR. JALELIAN: Thank you.

Q Paragraph six on page four of your first affidavit.

A Yes.

Q Bearing in mind what we just spoke about, the federal agencies. Now, your article on the "Psychological Detection of Deception" that we talked about, the 1994 article --

A Yes.

Q -- the end of that article you say, "Current research on the use of polygraph tests in national security points out that many serious problems still exist in the field. The surprising find that most of the errors made in the screening context are false negative errors, suggest that a great deal of additional research is going to be needed before polygraph tests can play a useful role in that setting. Until that work is done, it would seem prudent to limit rather than expand the use of polygraph as a screening device."

A Yes.

Q Have you changed your views regarding that paragraph?

A With regard to screening, no.

Q And paragraph six talks about "screening," is that correct?

A That's correct. It talks about both, but there is "screening" mentioned.

Q Well, what other purpose is used -- do some of the investigative services use it for criminal prosecution?

A Yes, they do.

Q And paragraph six, are you making an implicit statement about both uses?

A Yes.

Q But they're very different uses, isn't that correct?

A That's correct.

Q And, in fact, from your position, do you believe that it's inappropriate to use polygraph testing for national security?

THE COURT: Well, "for national security," that covers a lot.

MR. JALELIAN: For purposes of screening.

THE COURT: No, I mean what do you mean by "national security"?

MR. JALELIAN: National security screening purposes.

THE COURT: I'm still frankly confused. "National security" can mean how many airplanes we have. It can mean what the content of a decrypted message is. It's too vague.

Q In terms of screening out applicants or investigating current employees of federal agencies, for example, the Central Intelligence Agency. Is it your position, based on your 1994 article, that it is inappropriate to use polygraph for that purpose?

A It's very difficult to give a yes-or-no answer to that question.

Q Well, certainly, you say, "It's prudent to limit rather than expand the use of polygraph as a screening device," you wrote that in 1994.

A Yes.

Q Has your view changed regarding that?

A Somewhat.

Q When did it change?

A It changed somewhat as a result of the papers that Dr. Sheila Reed gave.

Q When did it change?

A I'm trying to recall when she gave those papers.

Q Well, but sometime between 1994 and today.

A Yes. And practice has changed since then, particularly in the CIA.

Q Well, you're not talking about, in your article you don't talk about the Central Intelligence Agency, you talk about polygraph screening, "polygraph as a screening device in a national-security context," is that correct?

A Yes.

Q And at that point, in 1994, you said, "it would be prudent to limit," is that correct? That's what you wrote.

A That's what I wrote, yes.

Q That's what you believed.

A Yes.

Q And now you've somewhat changed that. Have you published any articles indicating that that is no longer your view?

A No, I haven't had the chance to.

MR. GOOD: If Your Honor please, if we could just --

THE COURT: What's the objection?

MR. GOOD: My objection is that we're talking about the use of a device for screening. I hope Your Honor understands what that means.

THE COURT: What is the objection?

MR. GOOD: My objection is that we're talking about a use of a test that is not pertinent to this case.

THE COURT: So your objection is on grounds of irrelevance?

MR. GOOD: It's irrelevant here.

THE COURT: Overruled.

Q You haven't published anything that has indicated that you've changed your view.

A No, I have not.

Q Now, screening for the purposes of national security, and a polygraph test that's administered to a criminal suspect, are entirely different, is that correct?

A That is correct.

Q Because of the purposes, but not the structure and the function of the test, is that correct?

A In some cases, structure and function's quite different.

Q But in the main, the structure and the function of the test are remarkably similar, isn't that correct?

A No, I would not agree with that.

Q You would not. Then paragraph six has nothing to do with this case, is that correct?

A No, that's not true at all, because some of those agencies use it for law enforcement purposes.

Q But the Federal Bureau of Investigation does not.

A No, it does not.

Q And --

A At least not to my knowledge. I don't know of an incident --

THE COURT: I must say I was curious when you talked about "federal law enforcement agencies," that you included the Central Intelligence Agency as a law enforcement agency, and the Department of Energy as a law enforcement agency. Did you mean to do that in paragraph six?

THE WITNESS: That would be a mistake for the Central Intelligence Agency. But the Department of Energy does have law enforcement duties and law enforcement officers.

THE COURT: Very well.

Q Now --

THE COURT: The Office of the Secretary of the Air Force, that's a law enforcement agency, other than in interpersonal matters?

THE WITNESS: The Office of Special Investigations? Yes, Your Honor, that's a very large law enforcement agency.

THE COURT: No, no, the Office of the Secretary of the Air Force. Do you see that listed there after Air Force Office of Special Investigation?

THE WITNESS: Yes, it is, you're correct, sir.

MR. JALELIAN: Your Honor, at this time the Commonwealth would move to enter as an exhibit the article by Professor Honts entitled, "The Psychological Detection of Deception."

THE COURT: Do you acknowledge the article?

THE WITNESS: Yes, I do, sir.

THE COURT: All right, it may be Exhibit 3. I take it you have no objection, Mr. Good?

MR. GOOD: I don't, Your Honor.

MR. JALELIAN: Your Honor, for the purposes --

MR. GOOD: Other than relevance.

THE COURT: I understand. May I see it, please. Yes, carry on.

MR. JALELIAN: Just for the purposes of the record, the submissions that were included with the Commonwealth's motion in opposition, some of them are duplicative.

THE COURT: Yes, I understand.

MR. JALELIAN: Okay. And I just want to make sure that the submissions are included as evidence.

THE COURT: It's okay. I have a large suitcase to take them home with me.

MR. JALELIAN: And that the record reflect that they are, in fact, evidence in this case.

THE COURT: Well, they are articles that were brought to the attention of the Court, similarly to the article by Professor McCall that the defendant brought to my attention. And all intellectual contributions are gratefully accepted. I'm not sure that they're evidence as such. They're materials that I would consider. And to the extent that you want to make them evidence, as opposed to annexes to memoranda, at the appropriate time you can get together with Mr. Good and Ms. Goldberg and you can have them marked.

MR. JALELIAN: Thank you, Your Honor.

Q Skipping down to page five paragraph nine of your affidavit, you deal with "laboratory research," is that correct?

A That's correct.

Q And again you've cited under, you're Dr. Raskin's protege. Have you had an opportunity to read his article in 1986 called, "The Polygraph in 1986: Scientific Professional Legal Issues Surrounding Application and Acceptance of Polygraph Evidence" that appeared in the Utah Law Review?

A Yes, I have.

Q And are you aware of some of the criticisms that he himself levied against lab tests?

A Yes, I am.

Q Now, part of the problem with lab tests are a small sampling, the samples are small, is that correct, that could be a problem, if the sample of people who are tested are very small.

A It could be a problem.

Q And it is a criticism of some lab tests, isn't that correct?

A Of some, yes.

Q Of any one that is a small, any -- would you yourself criticize any lab test because of a small sampling, a small number of individuals partaking in the test?

A You've asked a very technical question. And the criticism of "small" has to do with statistical power, and the failure to find the facts. If the facts are fine, then there's no criticism.

Q But isn't, you're not looking for particular facts when you undertake a lab test, you're looking to test a hypothesis, isn't that correct?

A Yes, but your failure to support the hypothesis could be because you have insufficient subjects to give sufficient statistical power. And that's the criticism about "small."

Q That's exactly the case. As a scientist, would you rather have a large sampling than a small sampling, assuming the two samples are exactly the same for the purposes of the study? You can generalize better from a large sampling, is that correct?

A No, not necessarily.

Q The more data you have isn't helpful in terms of the number of samples?

A More data is helpful for the statistical analysis, but not for generalization.

Q But the vast majority of your studies have statistical ramifications, do they not?

A Yes, they do.

Q In fact, in this hearing we're attempting to determine statistical reliability of accuracy of the polygraph, isn't that correct?

A Yes, but it's --

Q So if you're trying to do a study --

MR. GOOD: Objection.

THE COURT: Now, let the witness finish the answer.

A If it's statistically significant, the issue of cell size is irrelevant.

Q So it's your testimony that you can have a perfectly valid laboratory study with two subjects that is the same validity as a test with a hundred and fifty subjects.

A No, because you won't get statistically-significant results with two subjects.

Q And it's less of a good study in terms of good science, is that correct?

A It would have insignificant results, and therefore there are no statements you could make.

Q At what -- is there a typical number that, below which you don't have a statistical, it doesn't come out?

A Yes.

Q What is that number?

A It depends on the statistic.

Q Well, what is that number in all of your studies?

A I wouldn't know without sitting down and running a power analysis on the particular design, and the particular size affects what we're looking for.

Q You don't have a minimum threshold number below which you cannot conduct a study?

A It completely depends upon the hypothesis and the type of statistic you're going to use.

Q Have you ever not conducted a study that you initially began to study because of an insufficient number of individuals?

A No.

Q Can you do a study, a statistical study, with one person?

A No.

Q Can you do it with two?

A No.

Q Three?

A Probably not.

Q Four?

THE COURT: What is "N," just so we don't go one by one?

THE WITNESS: It would depend upon the statistic. I don't know of any statistic that would allow you with three. There probably are some that would allow you with four. I'd be very concerned about such a study, but it's theoretically possible.

Q How about thirteen, would that concern you?

A Thirteen would not.

Q Thirteen individuals is a valid study.

A Thirteen individuals could well give you statistically significant results with a "T" test and analysis of variance.

Q So thirteen is an acceptable number.

A Thirteen could be, yes.

Q Would you prefer more?

A Yes.

Q Now, the laboratory studies that are undertaken are typically studies where students, undergraduates, one type of study is where you put an ad in the student newspaper for example, and you recruit students to come in and perform a psychological experiment in college, is that correct?

A There are such studies, yes.

Q And those were a lion's share of the studies in the past, is that correct?

A There have been a number of those, yes.

Q Were those a majority in the past?

A Define the "past," sir.

THE COURT: Well, look, I don't want to get in anybody's way, but here's what bothers me about the studies, "bothers me" in the sense that it intellectually troubles me.

If I want to know if a particular mosquito is a carrier of Yellow Fever, I breed a group of those mosquitoes, and then I have them bite somebody that I know has Yellow Fever, and then I have some volunteer, and have one of the mosquitoes bite the volunteer. And if he gets Yellow Fever, then I note that down. And I do it a number of times. And after awhile, I begin to say, "Well, the carrier, the mosquito is a carrier of Yellow Fever."

THE WITNESS: Yes, Your Honor.

THE COURT: Now, when we're trying to decide whether a PDD has actually detected deception, we have a somewhat different problem. For one thing, we have to figure out how to decide what the truth is.

THE WITNESS: That's absolutely correct.

THE COURT: And finding out the truth, leaving Francis Bacon to one side, is a difficult matter.

THE WITNESS: Yes, it certainly can be.

THE COURT: Well, if somebody says, "I was in Chicago" and it registers on the machine an abnormal registry, one of the anomalies, and you would have twelve people who know the individual who will say that on the particular date when he said on the machine, when he said during the testing he was in Chicago, he was really in Boston, you have an independent, more or less independent way of verifying it.

From the material I've read, which has been voluminous thanks to everybody, it seems to me that that particular problem that I've just outlined is the central problem in the field. That is, to decide what the truth is, so you can make an independent decision as to whether, when somebody has a rise in blood pressure or whatever, what he's saying at the time is not so.

THE WITNESS: Yes, Your Honor, that's absolutely correct.

THE COURT: All right. Now, since that is what is concerning me about the validity of the test, it might be useful - I by no means seek to compel anybody - but it might be useful to concentrate on that. However, I've learned enough in seventeen years as a judge to know that maybe it would be better - again to quote Bacon - "not to be an over-speaking judge." But I thought if I told you what was on my mind, it might be of some assistance.

Q The term "ground truth," are you familiar with that term?

A Yes, I am.

Q And what does that mean to you?

A Well, it means to know who is telling the truth and who isn't.

Q Meaning the reality of the event that occurred.

A That's correct.

Q And that is the foundation of what we're talking about today, whether or not an incident took place, is that correct?

A That's correct.

Q And it's more difficult, is it not, to determine whether or not an incident took place, than whether or not an individual person intended to do a certain act, is that correct?

A Would you define "intent" for me? That's the difficultly we've had.

THE COURT: Now, notice he's not asking for the distinction between general intent and specific intent. You used the word "intent," and I think it's fair to ask you to define it.

Q If a person forms the mental intent, makes the decision to carry out an act in their mind, that's what I mean by intent. Can you verify whether or not a person has ever formed the mental decision to carry out an act?

A And then did not carry out the act?

Q I don't know about that.

THE COURT: This is the Corn Flakes and the Rice Krispies.

A No, you cannot.

Q So it is impossible, you're saying, to verify the intention of an individual.

A In the example that His Honor gave this morning, if that's what you mean by "intent," you mean he, in fact, did not do it, no.

Q Are you familiar with the legal standard for deliberation in the State of Massachusetts?

A No, I am not.

Q Are you familiar -- you've had an opportunity to look at David Raskin's test --

A Yes.

Q -- questions?

A Yes.

Q Do you have a copy of those before you?

A I believe I do. Yes.

Q Now, you've just stated it's impossible to determine the ground truth of an intention of an individual, is that correct?

A Yes.

Q Now, I draw your attention to question number nine: "Did you deliberately hit Matthew's head against a hard object?"

A Yes.

Q "Deliberate" requires intent, isn't that correct?

A No.

Q "Deliberation"?

A Not in the way this question was reviewed with the subject. This refers to a specific --

Q Sir, that's not what I asked you. I asked you if deliberation, the word "deliberation" is such that it requires that a person make a decision to carry out an act.

A Yes.

Q So under my definition of "deliberate," it's impossible to determine the intent based on this question, isn't that true?

A Under your definition, yes.

Q Similarly, also in question eleven, "deliberately inflict." If the definition of "deliberate" is to form the idea in your head to carry out an act, then it's impossible to determine whether or not an individual has deliberately done anything.

A Yes. But that has nothing to do with these questions.

Q That's not what I asked you, sir. The question is, you're saying that you can't determine intent based on a polygraph; it's impossible to determine the intent of an individual where intent means to form the mental decision to carry out an act, is that correct?

MR. GOOD: Objection, Your Honor, that's not what the witness said.

THE COURT: Well, I think what we're talking about is, you can't decide whether it's true or not that somebody formed or didn't form an intent. You can decide on the basis of looking at the tracing, whether, when somebody said, "No, I didn't form an intent," or, "No, I didn't do something on purpose," or, "No, I didn't do something deliberately," whether or not, in answering that question, they had some particular response.

Now, I think that's about as far as anybody is saying that you can go on a particular question of intent. But if I'm wrong, educate me.

Q You said it had no application to this test. Have you had an opportunity to examine, to listen to the audio tape that was made of the test in this case?

A I have not listened to the audio tape. I have read the transcript.

Q You've read the transcript. Is it fair to say that it would be better to have an audio tape, or even better to have a video tape when examining the results of an individual polygraph test?

A No, I don't believe it would be better.

Q More information is not going to be helpful?

A In this particular case, there's no evidence --

Q That's not what I asked you. I asked you if more information is helpful.

A In the case of polygraph tests, no.

Q No?

A I don't believe so.

Q Are you familiar with the video tape that was taken in the John DeLorean case?

A Yes, I am.

Q And have you, did you participate in that test?

A Yes, I did.

Q And are you aware of the criticism of that test, where Mr. DeLorean was moving all around?

A I am.

Q And are you aware -- did you independently verify that test?

A I scored it, yes.

Q And also did Dr. Raskin?

A Yes.

Q And you're aware that the FBI polygraph results were the opposite of your results, is that correct?

A Yes.

Q And are you also aware that Mr. DeLorean put forth the defense of entrapment?

A Yes.

Q And that the defense of entrapment is essentially one of, "I did it, but I didn't have the intent to do it"?

THE COURT: I'm not so sure that's a good definition of "intent," I mean of "entrapment." I have always --

MR. JALELIAN: I can rephrase it.

THE COURT: -- thought that the definition of entrapment was, "I did it, but the devil made me do it."

MR. JALELIAN: That's a fine definition for the Commonwealth's purposes.

Q The definition of "entrapment" is, is admission to the crime, is that correct?

MR. GOOD: Objection.

THE COURT: It's admission to the act, but not admission to the crime. It says, "Entrapment" says that, "The Government put the idea," or government agent, or government person, "put the idea of the act in the mind of the defendant. And the defendant then acted on the Government's suggestion." And the law says, "Under those circumstances it's improper to convict somebody of a crime that he wouldn't have committed unless the Government enticed him to do it." Now, what has that got to do with this case?

MR. JALELIAN: That's why I'm moving on.

Q Regarding questions, question number ten on the test, do you have it before you?

A I have the relevant questions, but they're not numbered that way.

Q The second-to-last one.

A Read the question for me.

Q "Other than trying to arouse him on February 4th, 1997" --

A Yes.

Q "-- did you injure Matthew by forcibly shaking him?" "Forcibly" implies a certain subjective element on the part of the subject, is that correct?

A Yes.

Q So if the subject doesn't believe that it was forcibly done, they would pass that test.

A Yes.

Q But if it was forcibly done, despite the belief of the defendant, or the subject, they would flunk that test.

A Yes.

Q Now, "hit or strike," the question, I believe the two questions up, "On February 4th, did you hit or strike Matthew on the head?"

A Yes.

THE COURT: "Did you deliberately" --

MR. JALELIAN: I don't --

THE COURT: Oh, I see, I see where you are. Yes, you're right. I'm sorry.

Q That does not include any type of other methods of injury, is that correct, such as dropping?

A No.

Q So if the person in fact didn't strike Matthew, but in fact dropped Matthew, then they could pass this question.

MR. GOOD: I'm going to object, Your Honor. The obvious implication of any question is that the person who answers it is answering the question and not another question.

THE COURT: Oh, I'll allow it.

A It's possible.

Q This question, therefore, allows for another type of harm to come to Matthew other than striking, is that correct?

A It's possible.

Q And other than "deliberately inflicting" you jump to the final question, is that correct?

A Yes.

Q So it allows for other methods of injury other than deliberate infliction or striking Matthew. It allows the person to pass the test if they did damage him another way, isn't that correct?

A You phrased that is that a possibility.

Q No. My last question: It allows for the person to pass these questions if they did an act other than striking, isn't that correct?

A No, I don't believe that's true.

Q What if the question were, "Have you caused harm?" That would include, would it not, striking, dropping, throwing, any type of number of things, isn't that correct?

A Yes.

Q And the likelihood, if any of those incidents that I just outlined occurred, the person -- and if they, in fact, did it, the person would not pass this, is that correct?

A Yes.

THE COURT: When you say "pass it," I think it probably would be more accurate to say the person could answer the question truthfully.

Q Well, would not give a significant response, is that correct?

A No, I don't believe that's true at all, because the specificity of this test is such that if a person had caused some harm, I think they would fail the test.

Q Exactly, that's exactly my point. If they didn't strike him, but had caused him harm, they could pass the test.

A No, I don't believe that's true. You phrased that originally as, "Is it possible?" Anything's possible.

Q So you're saying that --

A But is it likely? I think it's not likely.

Q When you fashion a polygraph question, you fashion it very specifically, don't you, to the individual individual, to the individual.

A You fashion it to the case facts, yes.

Q The case facts as you receive them from whom?

A From whomever you received them from.

Q Okay. And are you aware who Dr. Raskin got, what facts he had in his possession when he fashioned these questions?

A No, I'm not.

Q So you don't have any idea of what -- do you have any idea about the pre-test interview in this case?

A Yes.

Q Based on what, the transcript?

A On the transcript, yes.

Q And you don't know what information Dr. Raskin had when he formed, before the pre-test interview.

A No, I do not.

Q And when you formed your opinion, did you only look at the charts?

A No.

Q Did you do a blind review, or did you look at everything?

A No, I did -- if I may, I'll describe how I do my review.

Q Well, just in this case.

A In this case. I received the charts. Dr. Raskin uses a marking system I'm familiar with, so the relevant questions are marked with "C's" and the direct replies are marked with "D's." So I didn't even have to look at the questions. I evaluated the charts before I even knew what the questions were. I came up with my scoring, and then I went back and looked at the questions in his report and his scoring.

Q And you came to the same conclusion.

A Yes.

Q Have you ever reviewed a polygraph of Dr. Raskin's and later been incorrect?

MR. GOOD: I'm sorry, I don't know what the Commonwealth means by "incorrect."

MR. JALELIAN: I'll rephrase it.

Q Do you know, are you familiar with the case of Mark Hoffman?

A Yes.

Q And in that case, did you administer the polygraph or did Dr. Raskin?

A I did.

Q And it was verified by Dr. Raskin, isn't that correct?

A Yes, he scored it.

Q And you passed Mr. Hoffman.

A Yes, I did.

Q And Dr. Raskin verified your pass of Mark Hoffman.

A Yes.

Q And Mark Hoffman subsequently plead guilty. You found him truthful --

A Yes.

Q -- when he said that he did not kill two individuals.

A That's absolutely correct.

Q And he plead guilty.

A He did.

Q To killing those two individuals.

A Yes, he did.

Q So you were completely wrong in that case, is that correct?

A One test I was, yes.

Q And are you familiar with the reason that Dr. Raskin has indicated why Mark Hoffman passed the test?

A Yes.

Q And is it based on the fact that Mark Hoffman purportedly did self-hypnosis during the test and related to biofeedback?

A Yes, that's what Mr. Hoffman told us.

Q That's what he told you.

A Yes, we got permission to interview him after the plea bargain.

Q After he plead guilty.

A After he plead, yes.

Q And after the test that you passed him on.

A Yes. He worked out a plea, and gave a full confession. And we were obviously interested in why we had made a mistake. And so we went to the Utah State Penitentiary and interviewed him.

Q And he said it was because he had some dental problems, and he taught himself to, similar to going to a dentist, taught himself not to feel pain?

A No, that isn't what he said. What he said was that, at a very early age he had learned to practice self-hypnosis. And the fact that he had been practicing that through his entire adult life, and that he would use that to do things like go to the dentist without anesthetic. And also, a big part of that crime was the sale of fraudulent documents and he would hypnotize himself to believe the documents were, in fact, true. And it made him more convincing when he was selling them.

Q So he hypnotized himself at the dentist and during the commission of the crime, and that's why he passed your test.

A That's what he claimed.

Q And do you subscribe to that point of view?

A It's a possible explanation.

Q Is it a probable explanation? Or is the probable explanation also that you were completely wrong when you gave him the test?

THE COURT: Excuse me. There's a rule with respect to cameras, that you do not move unless there's a recess. Carry on.

A It's entirely possible we were just wrong.

Q And it's entirely possible that you're wrong in this case too, isn't that true?

A Yes.

Q Do you know of any other tests where self-hypnosis, or the methods used by Mark Hoffman, were used to supposedly "fool," for want of a better term, the polygraph? Have you heard of anybody else who's fooled it by that method?

A No.

Q Have you encountered in your however many years that you've studied and administered polygraph tests, any other person who did that?

A With those methods?

Q Yes.

A No.

Q So he's one in a million.

A I believe so.

Q And it's not --

THE COURT: Not in "a million," he hasn't done a million tests.

Q It's not that your methods are flawed, or the polygraph is not valid.

A Well, the polygraph has an error rate; we know that from all of the studies.

Q But the "error rate," how many times have the study's error rates been related to self-hypnosis?

A That's the only one I'm aware of.

Q Now, just regarding the lab tests, it's true you give it to undergrad, the undergrad studies that take place are students who come in, and you give them a fee, and you undertake a psych experiment, is that correct?

A Sometimes they're undergrad, sometimes there are other populations.

Q They're students.

A Not always.

Q They're student populations.

A Not always.

Q I am talking about lab tests that are student populations.

A There are some, yes.

Q So how many are the tests that you've given lab tests?

A That I have given?

Q With students.

A With students.

Q What percentage?

THE COURT: Does it really make a difference?

MR. JALELIAN: It does if he's basing his opinion on a majority of them. I just don't know what the answer is.

Q Approximately.

A About half.

Q Half. And it's true that Dr. Raskin's criticized the use of undergrad students because they're unlikely to respond as real-life criminals do, is that correct?

A Certainly, yes, he has said that.

Q Thank you. Do you share that belief?

A I don't share it as strongly as he does. But certainly there are differences between student populations and criminal defendant populations.

Q And also, the concerns of the students regarding mock crimes, in which you set up a scenario where they go and they commit a mock crime. They certainly also don't mirror real life crimes, is that correct?

A The motivations are different.

Q Well, they're lesser.

A They're lesser, yes.

Q Because there's no stakes in the outcome of the mock crime. They're going to go all to their dorm at the end of the day, isn't that correct?

A Well, there are stakes, but they're a different sort because they're almost always, it's money.

Q Yes, they're going to get, which is how much money. They're going to get their money from the study, isn't that correct? It's just a question if they fool the polygraph they're going to get more money.

A That's correct.

Q That is not the same, however, as an individual who's facing potentially either life without the possibility of parole, or in death-penalty cases, the death penalty.

A Obviously, it's not.

Q Similarly, unpunishable crimes, such as those conducted in mock crime studies, not being punished, there's no true apprehension if you're not going to be punished, isn't that correct?

THE COURT: "Apprehension" has two meanings in the criminal law. Maybe you'd better get the correct one. Fear, nervousness?

Q Being caught.

THE COURT: Apprehension about being apprehended.

A I don't know that I can answer that.

Q Well, just from a common-sense point of view. If it's an unpunishable crime, it's not really a crime, it's a psych experiment. That is certainly different from a person who is, again, facing either life without the possibility of parole --

A I agree with that, it's different.

Q Similarly also, the lab polygraphs are given right after the test in a majority of these student tests.

A Not always.

Q Well, that was a criticism levied by Dr. Raskin in his article, was it not?

A Yes, but since then we have done other things.

Q I'm not talking about "since then," I'm talking about these lab tests.

A Oh, if you're talking -- well, we've done lab studies since then where we have not tested them immediately.

Q How many have you done?

A I personally have been involved with three.

Q Now, did you change that approach because of this criticism?

A In one study yes, and in another study we did it specifically to examine the effect of introducing longer periods of time.

Q So that, so you wanted to test the criticism.

A Yes.

Q And now, has it generally, the studies have gone the other way and is there a delay?

A I believe so.

Q So the criticism was valid.

A No, actually the criticism was invalid because the study that we did to look at the effects of time, it was found no effect.

Q There's no effect over time.

A No, there is not.

Q Is there an effect over time when an individual - and I'm not talking about a lab test - when an individual has told their version of events in a real-life crime let's say, they're arrested, or before they're arrested they tell the police what their version of the events are, they tell it over and over and over and over again. They spend months. And then they're given the polygraph. Would that have an effect on any of the results?

A I don't believe it would.

Q You don't believe that if you told the same -- have you ever told a story, any kind of story, over and over and over again?

A Yes.

Q And if it's an exciting story, it doesn't become exciting to you after the tenth time because you've told it ten times, isn't that correct?

A Yes, but I wasn't being polygraphed on it.

Q That's not what I'm asking you. I'm asking you if you told a story about an exciting event that happened to you six months ago, over the course of time you become habituated to the story.

A Oh, some stories I don't.

Q But other stories you do.

A Other stories I might, yes.

Q Fine. You might or you do? Can you affirmatively say one way or another that you believe that after a certain amount of time, you become effectively bored with the story?

A If telling a story is all you're referring to, yes.

Q Thank you. There's also the theory that, or the criticism that poorly-socialized individuals are more accurately identified than highly-socialized individuals, have you heard that?

A Poorly-socialized are more accurately identified than highly-socialized? There's a slight trend in the data to support that.

Q And that, in fact, was a statement made by Professor Raskin in his article, isn't that correct?

A I don't recall it, but it certainly could have been.

Q And how would you define a "poorly-socialized individual"?

A There are several ways that that might be defined. There are psychological tests, called "socialization scales." And in some studies, those have been used to define who is highly socialized and who is poorly socialized. There's also a concept called "psychopathy" which involves a clinical diagnosis. And people who are diagnosed as "psychopaths" are poorly socialized.

Q Does it also refer to intelligence level?

A No.

Q Does it refer to the level of sophistication of the individual?

A No.

Q Does it refer to the level of knowledge about a polygraph?

A No.

Q Could it?

A Socialized? No.

Q Do you have any information about whether or not Louise Woodward would be defined as "poorly socialized" or "highly socialized"?

A No.

Q So you can't make a judgment based on that fact either.

A No.

Q Now, in 1985, you wrote a law review article that appeared in the North Dakota Law Review, is that correct?

A 1995.

Q 1995, sorry. And at the end of that article, there are two pages of tables, is that correct?

A Actually, I believe there are three. But there are two that you've shown me.

Q The last page has a third one, is that correct?

A Yes, that's correct.

Q Now, I want to draw your attention to the last, the second-to-last page, page 1018 and 1019, there are two pages together.

A Yes.

Q And these go over, if you'll just ignore the bottom of it, "Concealed knowledge test," that has nothing to do with this, anything we've discussed or the case at hand, is that correct?

A I agree.

MR. JALELIAN: Your Honor, I don't know if you have a copy before you of this. The Commonwealth would move to enter this as an exhibit.

THE COURT: Wait a minute.

MR. JALELIAN: I mean I know you have a copy of this, just if you have it before you.

THE COURT: Yes, I have it.

MR. JALELIAN: The Commonwealth would move to enter that into evidence.

THE COURT: Any objection?

MR. GOOD: No, Your Honor.

Q On the back page of that, page 1018, it says, "List of Tables," is that correct?

A There's a table on page 1018.

Q The top table, "High Quality Laboratory Studies," table one.

THE COURT: The problem is, you gave it to me together with something from the Utah Law Review.

MR. JALELIAN: I actually anticipated that as a problem. This is a full -- I apologize, Your Honor.

THE COURT: That's all right. The North Dakota article, which is this one, will be stapled, and that will be Exhibit 4.

THE COURT: All right, carry on.

Q Drawing your attention to table one, the first study, is a Ginton study, is that correct? That's 1982.

A Yes, it's actually pronounced Ginton.

Q The "et al.," who are the "et al.," do you know? Were you?

A No.

Q Was Dr. Raskin?

A No.

Q Was Dr. Kircher?

A No.

Q That was published in 1982, or just undertaken in 1982, if you know?

A Published.

Q Okay. So that was available at the time that, that would be 1989 obviously.

A Yes.

Q Now, the study underneath that is a study done by yourself, is that correct?

A Yes.

Q A 1994 study. And the number "N," meaning number of subjects, is twenty guilty and twenty innocent, is that correct?

A That's correct.

Q Forty people were in that study?

A That's correct.

Q And you had a seventy percent guilty correct ratio?

A Yes, seventy percent guilty, twenty percent wrong, and ten percent inconclusive.

Q And then with innocent, seventy-five and ten percent correct, percent wrong, is that correct?

A Yes.

Q The study underneath that study is a 1995 Horowitz study?

A Yes.

Q Fifty-three percent correct of guilty people were identified, is that correct?

A Yes, that's correct.

Q A little bit greater than chance, is that correct?

A No, it's considerably better than chance.

Q Isn't chance fifty-fifty?

A Yes, but you have to compare that to the innocent group to test chance.

Q But in identifying guilty people, fifty-three percent of the people were correctly identified as guilty.

A Yes, that's correct.

Q So with the --

THE COURT: Fifty-three percent of the people who are identified as "guilty" were guilty, isn't that what that means? It doesn't mean that fifty-three percent of the people in the test were guilty.

THE WITNESS: That's correct. It's fifty-three percent of the guilty people were correctly identified. Twenty-seven percent were inconclusive.

Q And twenty percent who were just flat out wrong.

A Were wrong, that's correct.

Q And with the innocent, eighty percent and thirteen percent.

A That's correct.

Q Right or wrong, is that correct?

A Yes.

Q And the number of people in that study was thirty.

A That's correct.

Q Now, this Kircher and Raskin study in 1988 --

A Yes.

Q -- do you know when that was published?

A 1988.

Q What month?

A I can probably tell you.

Q Well, we'll come back to that. Skipping down to, obviously the one underneath that, the 1978 one, was available in 1989.

A Yes, certainly.

Q And the one underneath that one -- I don't know how to pronounce that.

A Podlesny.

Q Podlesny. Approximately a hundred people were in that study?

A Approximately, yes.

Q Sixty-nine percent were correctly identified guilty, thirteen --

A That's correct.

Q -- seventy-five and four for the innocent.

A Yes, virtually nothing conclusive.

Q Now, the "weighted" means, if you skip on down to the bottom --

A Yes.

Q -- seventy-seven percent were correctly identified guilty, ten percent wrong, eighty-four percent innocent and eight percent wrong and innocent, is that correct?

A That's correct.

Q That's the average of all of those.

A Right.

Q Now, you're familiar with a lot of Dr. Raskin's work.

A Yes.

Q Are you aware if he has ever published a study that has numbers that are under ninety percent, any numbers of correct identification?

A Yes.

Q Are any of them here?

A The one in '94.

Q He was involved in that?

A Yes.

Q Okay. Now --

A And the Horowitz study as well.

Q He was involved in the Horowitz study, where fifty-three percent, that one?

A That's correct.

Q So there is statistical evidence that, it goes from ninety-five percent at one end of the extreme, well, actually a hundred percent at one end of the extreme, to fifty-three percent at the other end of the extreme, is that correct?

A Yes.

Q So somewhere in the middle is where the reliability of the polygraph is. According to yours, it's seventy-seven percent, is that correct?

A Yes.

Q For correctly identifying the guilty individuals.

A Including inconclusives.

Q That's correct. And so as of 1995, the best average data was a seventy-seven percent accuracy rate.

A Yes, with ten percent actual error.

Q I understand that. But in terms of correct identification, which is what I would imagine is the main concern, and is cited in --

A No, actually -- well, go on.

Q Have you had an opportunity to read the case of Commonwealth versus Mendes?

A No, I have not.

Q Are you aware -- strike that. Moving across page 1019, going down the list of correct guilty of a hundred percent of the thirteen persons studied, is that correct?

A That's correct.

Q And that's a study done by you.

A Yes.

Q Where only thirteen people were involved, is that correct?

A In that condition.

Q What do you mean, more than thirteen people?

A Well, there were more than thirteen people in the study. There were thirteen people -- the reason the study was made was that these studies were comparable in the kind of ground truth that they used. So there were thirteen people in that study that had the same level of confirmation as confession and additional evidence as in the other studies.

Q And that was the only one that you found acceptable to include in this list by the criteria that you just described.

A Yes, those are the only --

Q That met the criteria that you established for the list pretty much.

A Yes.

Q And the list, the one underneath that, you and Professor Raskin --

A Yes.

Q -- in 1988, '92 and '62, in terms of percentage correct, guilty and innocent.

A That's correct.

Q Underneath that, Patrick and Iacono, '92, had thirty percent correct for innocent people, is that correct?

A That's correct, yes.

Q So only thirty percent of the innocent people were identified as innocent, is that correct?

A Yes, that's by the independent evaluators, yes.

Q And then underneath that, 1988, seventy-three, zero percent; sixty-one percent.

A Yes.

Q The average of this is eighty-six percent on the guilty and forty-nine percent on the innocent.

A Yes, that's correct.

Q And again --

A With only one percent error on the guilty.

Q But on the innocent, it's forty-nine percent, is that correct?

A Yes, that's correct.

Q And that's less than chance, isn't it?

A No.

Q Forty-nine percent is not less than --

A You can't figure chance with just an innocent.

Q I'm not asking you that. I'm asking you if forty-nine percent is less than chance.

A No, it's not.

Q Forty-nine percent is not less than fifty-fifty?

A Fifty-fifty is not how you calculate chance though.

MR. JALELIAN: Your Honor, the Commonwealth would move to enter this article.

MR. GOOD: I thought you already did.

MR. JALELIAN: Oh, all right, that's fine. I also offer Professor Raskin's Law Review article.

THE COURT: The Utah Law Review article?

MR. JALELIAN: Yes.

THE COURT: Any objection?

MR. GOOD: No objection.

THE COURT: That will be Exhibit 5.

Q Now, paragraph ten in the article, you deal with field studies, is that correct?

A Yes.

Q And on page seven you say, "Although field studies are plagued by numerous problems, the chief problem lies in unambiguously determining ground truth," is that correct?

A Yes.

Q Now, what are the "numerous problems" that plague field studies?

A That's a course that takes about a semester to teach.

Q Give me a list of five things off the top of your head.

A Access to cases is a difficulty. Of course I mentioned that the most difficult one is determining what ground truth is. A control over the situation in which the tests were run.

Q And by "the tests," you mean the actual polygraph.

A The actual polygraph.

Q So you're just getting the tests themselves, you're not undertaking a full range of polygraph tests themselves. You get the charts yourselves?

A We have done that, and that actually is a preferable way to do it because it gives you more control. Most of the field studies are done as archival studies which means we go into the archives and we find things that are already collected by searching through the police agency files.

Q And that's a problem.

A Yes, it's a problem in our record keeping.

Q You also say a few lines down, "It's agreed that confessions are the best available criteria for ground truth," is that correct?

A Yes, I believe that's true.

Q Now, you undertook a study of the Royal Canadian Mounted Police, where you used a sliding scale, is that correct, a 1994 study?

A Actually, the study was published in '96.

Q But it was available in 1994.

A Yes, the final grant report was written in '94.

Q Is this the study, or at least a draft of it?

A That's the final report on the grant that was submitted to the RCMP.

Q And I'd just ask you to read the title of that document.

A "Commonwealth of Massachusetts Appeals Court, Middlesex County, Commonwealth versus Francis Stewart."

Q Thank you. And just that line (indicating).

A "Record Appendix for the Defendant."

Q Okay. Now, in that study, you didn't use only confessions, you used other methods, too, is that correct?

A Yes.

Q Confession wasn't the sole determiner of ground truth.

A That's correct.

Q And you used a sliding scale -- in fact, that's also Exhibit 2 of the defendant. Have you had an opportunity to see that? I think it's the same document. The field study that I just showed you, is that the same one?

A That's the same field study, that's the actual publication.

THE COURT: Wait a minute. Now, where are we?

MR. JALELIAN: It's tab two in the defendant's --

THE COURT: Tab two of Exhibit 2, which is the second affidavit of Mr. Honts, is that what you're talking about?

MR. JALELIAN: Yes.

THE COURT: An article in the "Journal of General Psychology," 1996, is that what you're talking about?

MR. JALELIAN: Yes.

THE COURT: Entitled, "Criterion Development and Validity of the CPT in Field Applications"?

MR. JALELIAN: That's correct. And it's also in the original papers of Commonwealth versus Stewart.

THE COURT: Well, the fact is, it's part of it. For purposes of this proceeding, it's tab two of Exhibit 2.

MR. JALELIAN: Your Honor, I would move to enter it into evidence, the supplemental record, and the record appendix to Commonwealth versus Stewart.

THE COURT: Why?

MR. JALELIAN: To show that it was part of the original papers of Stewart.

THE COURT: Is it disputed that that article was part of the original papers?

MR. GOOD: It was apparently submitted as part of the appendix by the defendant, though it was not part of the record of the Superior Court proceedings, Your Honor.

THE COURT: Was it before the Appellate Court?

MR. JALELIAN: I believe it was. It was part of the supplemental record --

THE COURT: All right. Then we'll assume that it was part of the supplemental record for present purposes.

MR. JALELIAN: Thank you, Your Honor.

Q Now, in that study that was just referred to, tab two of Exhibit 2, you used a sliding scale for guilt in the truth of the studies regarding culpability, is that correct?

A We used a sliding scale for confirmation of ground truth.

Q Okay, for the reality of what happened.

A Yes.

Q So it's also culpability. I mean you're using a sliding scale to determine ground truth, and ground truth is the incident, and the incident is culpability, is that correct?

A It's not a word I would use, but --

Q Well, ground truth is the guilt or innocence of the defendant, is that correct?

A Yes.

Q And at one end, which your study is level one, would be most guilty?

A Oh, no, that's not how the scale worked. The scale worked -- there are people who, there's evidence that they're innocent, and there's people who there was evidence that they're guilty. And then the scale rates how strong that evidence is.

Q Okay. And how strong their level of culpability is regarding the ground truth.

MR. GOOD: Objection, Your Honor. He's talking only about the strength of the evidence and not how much culpability, that is, proof beyond a reasonable doubt --

THE COURT: Carry on. Your point is taken.

Q Juries don't determine on a sliding scale, do they, it's a guilty or a not guilty.

A I believe that's so.

Q So the efficacy of a study that determines ground truth on a sliding scale, is completely unrelated to what a jury would do when it determines outcome in a criminal case, isn't that correct?

THE COURT: That is argument and not questioning.

Q On page seven, subparagraph A of your affidavit, you said, "Subjects should be sampled from an actual population of subjects in which the researcher is interested." Is that correct?

A Yes.

Q How many nineteen-year-old British au pairs have been involved in your studies, women?

A There are a certain number of women, but I don't believe that there are any nineteen-year-old British au pairs per se.

Q So none.

A I don't believe there are.

Q Well, they're your subjects, aren't they?

A Yes.

Q So you would be in the best position to know, wouldn't you?

A I don't recall any. I've looked in an awful lot of case files, but there aren't any --

Q So there could have been a nineteen-year-old British au pair in one of your studies?

A I don't think it's likely.

Q Now, getting back to the tab two, how many people were involved, how many polygraph tests were involved in that study, the tab two study, "Journal of General Psychology"?

A I'd have to look at the article to be certain. I believe it's forty-one.

Q Forty-one tests?

A Yes.

Q And you determined twenty-three cases from a single polygraph examiner, is that correct?

A You mean -- I mean I'd have to see the article, but I won't -- that sounds correct.

THE COURT: It appears there were twenty-one guilty and eleven innocent, a total of thirty-two. That's what I derive, but I'm not sure that's accurate.

THE WITNESS: Yes, Your Honor, those are the ones -- I think you got that from -- there were forty-one total. Twenty-three cases. There were twenty-nine and twelve. So twenty-nine from one polygraph examiner and twelve from the other.

Q So there were a total of two different, only two different polygraph examiners took the test involved in the study, is that correct?

A That's correct.

Q So if they were doing it improperly, if one of them was doing something improper on all of the tests, then the study is invalid, isn't that correct?

A I wouldn't say that it's "invalid." It might be unrepresentative. It would be valid for those two examiners.

Q Fine. It would be -- well, but if there was something that was completely -- it's a very small sample given the fact that it's only two polygraph examiners.

A There's a small number of polygraph examiners represented.

Q Very small.

A Yes.

Q The smallest except for a single one, isn't that correct?

A That's correct.

Q And you say that a single type -- would a study of a single examiner be something that you would undertake?

A Under some circumstances, yes.

Q Would you consider it to be the optimum circumstances?

A No.

Q But two is getting better, is that correct?

A Two is better than one.

Q But obviously not as good as three. Regarding subparagraph C on your affidavit, you state that polygraph examiners, essentially that polygraph examiners are the ones who evaluate the tests.

A Essentially, yes.

Q Is that correct? And you say that that's the best method to do it, because those are the individuals who are trained in it.

A Yes.

Q And do you pay polygraph examiners to do evaluations in your statistical studies?

A I have never done so, no.

Q And are they professional polygraph examiners, or are they professional polygraph examiners who happen to be academicians?

A No, they're professional polygraph examiners.

Q So they make their living evaluating polygraph examiners solely.

A Yes. Although there have been psychophysiologist polygraph examiners also, but most of the time it's professional polygraphers and police officers.

Q Now, regarding paragraph eleven, you indicate that you, Professor Raskin, and Professor Kircher, have reviewed the scientific literature regarding high quality laboratory studies of the CQT. And then you drop to footnote eight and you outline them, is that correct?

A Yes.

Q Are these essentially the same as the North Dakota Law Review?

A I believe they are identical.

Q Okay. So everything covered in footnote eight and paragraph eleven is covered in the "North Dakota Law Review" that we just went over.

A That's correct.

THE COURT: Which review?

MR. JALELIAN: The "North Dakota."

THE COURT: The "North Dakota" or the "Journal of General Psychology" article?

MR. JALELIAN: The "North Dakota Law Review."

MR. GOOD: He's referring to the tables that he covered in the --

THE COURT: Yes. Go ahead. In fact, I think we'll take the morning break now, and we'll resume in ten minutes.

THE COURT: All right. I just remind you that you're still under oath, and you may resume.