Dr. Honts' Testimony Continued

Q On paragraph twelve of your affidavit, page nine, you indicate that in a recent review of Professor Raskin and his colleagues - meaning yourself - and Professor Kircher, examined field studies related to the control question technique. This is table two of your "North Dakota Law Review," is that correct?

A With minor changes, yes, some of the publication dates change, but the numbers are the same.

Q And of those field studies, two of them are your own, is that correct?

A Yes.

Q And one of them is a study of the validity of polygraph examinations in criminal investigations, a final report to the National Institute of Justice, with a grant number.

A Yes.

Q It's a 1988 grant, is that correct?

A Yes.

Q To your knowledge, has that ever been published in its entirety anywhere?

A No.

Q Okay. So that's an unpublished study.

A Yes.

Q And commensurate with it being unpublished, it hasn't been peer reviewed for any scientific journal.

A Not for a journal, no.

Q And then, so that two of the studies are your own, one is Professor Raskin. Were you involved in that one?

A Yes.

Q So three of them are your own, and then the fourth one is by Professors Patrick and Iacono, is that correct?

A Yes.

Q And that third one dealt with the problem of sampling bias, is that correct?

A That's one of the issues that were dealt with, yes.

Q And it was a result of that third one, the Patrick and Iacono study, or partially as a result of that, that studies, field studies, moved from confession rates as the sole determination, to confession rates plus extra, other evidence, is that correct?

A No.

Q It was that way before?

A Yes.

MR. JALELIAN: Your Honor, rather than going over that paragraph again, that is all contained in table two of the "North Dakota Law Review." I believe it's on 1019. I went over one of them, so I think Your Honor is perfectly capable of reading that evidence.

THE COURT: Yes. Just one minute, please.

MR. JALELIAN: I have another copy if the Court would prefer.

THE COURT: I have the article, but somehow the last two pages got separated. I have it. All right, carry on.

MR. JALELIAN: Thank you.

Q On page eleven, about, paragraph thirteen, about halfway down, where it says, "Thus, accuracy rates based on the decisions of independent evaluators may not be the true figure of merit for legal proceedings."

A Yes.

Q Could you explain that please. Before you do that, by "independent evaluators," you mean not the original tester, a person who's come after the original test and evaluated the test?

A That's correct.

Q And when you say "may not be the true figure," you mean may not be the most accurate figure?

A Yes, for that use.

Q When you say "of merit," meaning they're not as valuable, is that fair to say?

A Yes.

Q For legal proceedings, isn't that correct?

A Yes.

Q Now, in this case, you were the independent evaluator of Dr. Raskin, is that correct?

A Yes.

THE COURT: In the present case, that is, the Woodward case.

MR. JALELIAN: That is correct.

Q And on paragraphs, paragraph thirty, subparagraph A through subparagraph H, is all your evaluation as an independent evaluator of David Raskin's test of Louise Woodward, is that correct?

A Paragraph thirty? Yes, that's correct.

Q So it's your independent evaluation of David Raskin's test of Louise Woodward.

A That's correct.

Q And you say yourself in paragraph thirteen, that, "It may not be a true figure of merit for legal proceedings."

A That's correct.

Q So by your own affidavit, your independent evaluation shouldn't be used in a court proceeding, is that correct?

A No.

Q Well, how do you interpret "may not be the true figure of merit for legal proceedings"?

A Well, for an independent evaluation, table two, would be appropriate for judging the accuracy of my evaluation. Table three would be the appropriate one for judging David Raskin's testimony.

Q Is it your testimony, sir, that the accuracy rates of your decision should be used in a legal proceeding?

A Yes.

Q Well, why do you say "may not be the true figure of merit"?

A You didn't read the previous sentence.

Q "It is usually the original examiner who gives testimony."

A Yes. So the true figure of merit for evaluating the --

THE COURT: I'm sorry, what are you reading from right now?

MR. JALELIAN: Paragraph thirteen of the first affidavit of Charles Honts, page eleven, about halfway down.

THE COURT: Yes, thank you.

Q Sir, either accuracy rates based on decisions of independent evaluators should be used in legal proceedings, or they should not be used, isn't that true?

A The purpose of that sentence however is, usually the original examiner gives testimony. Thus, you're evaluating the original examiner, and you want data from original examiners.

Q What, in terms of legal proceedings?

A Yes.

Q Well, in this case we have the original examiner, isn't that correct?

A That is correct.

Q And we also have you, isn't that correct?

A That's also correct.

Q So since we have the original examiner, since the Court has the original examiner, based on this sentence in your affidavit, the Court does not need your opinion.

A That does not follow. It's a non sequitur, sir.

Q "Independent evaluators may not be the true figure of merit for legal proceedings," is that correct?

A When you're considering the testimony of the original examiner.

Q Which we are, isn't that correct?

A He's not here at the moment.

THE COURT: Well, look, gentlemen --

MR. JALELIAN: I'll move on, Your Honor. I would at this point though, make a motion to strike paragraph thirty in its entirety from the affidavit based on paragraph thirteen.

THE COURT: Oh, no, I don't think so. I don't think it needs to be stricken. It certainly may be subject to appropriate comment at the time of argument.

MR. JALELIAN: Thank you, Your Honor.

THE COURT: Am I correct in my understanding - and either side may feel free to object to this question by the way - am I correct in my understanding, Professor Honts, that part of the evaluation that an examiner undertakes depends, again in part, on the examiner's visual reaction and auditory reaction to the subject? That is to say, in evaluating a tracing, in evaluating the machine's record of the various autonomic responses, does the evaluator take into account what the evaluator sees and hears of the subject during the test?

THE WITNESS: Not explicitly, no. But the research shows that the original examiners are more accurate than people who don't have access to that information. So they must be using it.

THE COURT: I thought I saw in some of the voluminous material - and I'm sorry I can't put my finger on it right now - that the interpretation of polygraph data is an art as well as a science. In fact, I can put my finger on it oddly enough, it's in the University of Illinois Law Review. And it's at, the text at footnote 268. And it's citing an article by the Major John J. Cannon, Jr., in which he says, in essence, "A polygraph machine is not a lie detector. The most important factor in polygraph examination is the individual examiner's ability, experience, and education. Interpretation of polygraph is almost an art form."

MR. GOOD: Your Honor, may I show the witness?

THE COURT: Yes, of course.

MR. GOOD: You're reading from footnote 268, Your Honor?

THE COURT: Yes, at page 54 of the print.

MR. GOOD: I don't believe the witness has the question in mind about that, Your Honor.

THE COURT: So does that take into account also what the examiner sees and hears during the test? Or is that, when we're talking about it as an "art form," are we just talking about the bare interpretation of the tracing?

THE WITNESS: I would not characterize it as such, so I'm in disagreement with this author.

THE COURT: Very well.

MR. JALELIAN: Thank you, Your Honor.

Q Professor, on page 15, paragraph 16, you refer to "countermeasures." You're familiar with that term?

A Yes, I am.

Q And you're familiar that there are two types generally of countermeasures, physical and mental, is that correct?

A Yes.

Q And physical countermeasures are just that, methods by which a subject physically does an act that is an effort to counter the machine, is that correct?

A Yes.

Q And that includes biting one's tongue during the, either relevant -- at a certain time during the test?

A Yes.

Q Or pushing a foot down on the floor, against the floor?

A Yes.

Q And in some of the folklore is a tack underneath a shoe --

THE COURT: Not "underneath a shoe," in the shoe, according to what I read.

A His Honor is correct.

Q And does the tack have the same effect as pushing your foot down?

A I don't know.

THE COURT: A sharper effect perhaps.

Q Now, you indicated that the original examiner is more accurate than a subsequent examiner, is that correct, or the independent evaluator?

A The research shows that, yes.

Q And is that your opinion?

A Yes.

Q And you indicated earlier today that you had not listened to the audio tape of the Louise Woodward polygraph, nor had you seen a video tape because none either exists or was made -- none exists. But you had read a transcript, is that correct?

A That's correct.

Q Now, we also talked about the DeLorean case, where you indicated that you were aware that you could see Mr. DeLorean moving around, and that's the subject of some criticism, is that correct?

A That was the subject of criticism, yes.

Q And would you agree that a video tape is a better method for an independent evaluator to examine the original test than is an audio tape because you get to see the subject during the test?

A No, I would not agree with that.

Q You would not agree that seeing a subject during a test would help you do an independent evaluation of the validity of a specific polygraph test.

A There's absolutely no evidence that that's the test.

Q I'm not asking if there's any evidence. Do you believe that it would be helpful just in common sense?

A But I'm a scientist, and I base my belief on data, and there's no data.

Q So you don't have a common-sense attitude about whether or not it would be more helpful to see a subject, than merely just to hear them?

A Common sense is often wrong.

Q So your answer is that you do not have a common-sense attitude about that.

THE COURT: No, he didn't say that. What he says is he chooses not to intuit rather than to rely on data. Let's just leave it at that.

Q You've given polygraph examinations yourself.

A Yes.

Q And you've had an opportunity to see a subject while you're doing it obviously, because you're sitting right next to them, is that correct?

A Yes.

Q And you can see the expressions on their face.

A Yes.

Q And you can see the way they move in a chair or don't move in a chair.

A Yes.

Q And the level of concentration on their countenance.

A Yes.

Q Everything that you can draw a conclusion about seeing a person while you're standing next to them.

A Yes, sir.

Q Now, in this case, all you listened to, all you read was a transcript of the Louise Woodward polygraph, is that correct?

A That's correct.

Q So you did not have the opportunity to see anything about Louise Woodward while she was given the test.

A That's true.

Q And you did not have the opportunity then to see whether or not countermeasures were done, physical countermeasures, is that correct?

A That's correct.

Q And physical countermeasures are observable by a trained -- there is training of polygraphers that would help them become aware if physical countermeasures are being utilized by a subject, is that right?

A No, there is not.

Q There's no training by anyone to train polygraphers --

A There's none that's effective.

Q I asked you if there's training to make examiners aware that physical countermeasures are utilized and how to recognize them.

A There may be training.

Q Okay. There's certainly data though in -- you've written data about what physical countermeasures are.

A Yes.

Q Okay. So if you read the data, you become aware of what the physical countermeasures are just by reading it.

A Yes.

Q Such as I'm aware of it by pushing your toes, and His Honor is aware by the tack in the shoe.

A Yes, certainly.

Q Okay. And it's your testimony that a video tape is no more helpful than nothing, is that correct?

A That's what the evidence shows.

Q And that's what your experience also shows?

A Yes.

Q Now, you have no idea whether or not Louise Woodward, based on personal knowledge, whether or not Louise Woodward has read anything about polygraphs.

A No.

Q Or knows anything about polygraphs.

A No.

Q Or has had any training regarding polygraphs.

A No.

Q So you have no information based on anything about Louise Woodward's level of information concerning polygraph tests.

A No.

Q Now, are you aware -- what else, aside from the transcript, did you read in your independent evaluation of the Louise Woodward polygraph?

A I read Dr. Raskin's written report to Mr. Good.

Q About two pages single-spaced?

A About two pages, yes. And I've looked at the question list, and I had his score sheet. And I believe that's all.

Q Now --

A And the chart of course.

Q -- mental countermeasures are simply things that are done, subjects who do mathematical computation in their head to, during a question, to have the same effect as a physical countermeasure, is that correct?

A That's one that we tested.

Q Okay. What are the other ones?

A Well, there are many things that you might think of - imagery, you can think about excited images -anything that would involve mental activity would be in the general category of mental countermeasures. But the only one that we have tested, there's been no arithmetic.

Q Okay. And it's just simple math computations, subtracting sevens from a number above two hundred, is that correct?

A That's correct.

Q Now, as of 1986 -- strike that. You did a study in 1994, is that correct?

A It was published in '94.

Q Okay. And that was a study related to mental and physical countermeasures, is that true?

A Yes.

Q And that, in fact, I believe is both a defense exhibit and a commonwealth exhibit.

THE COURT: Which particular article?

MR. JALELIAN: It's on tab eight of Exhibit 2, "Mental and Physical" --

THE COURT: Yes, I have it.

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

THE COURT: Well, it's in evidence.

MR. GOOD: It's my understanding that all of those are in.

MR. JALELIAN: That's fine.

THE COURT: Look, just so we can all understand. Exhibit 2 is the second affidavit. It includes, as part of the exhibit, all of the tabs. And that's true for anything that's an exhibit; it takes with it everything that's --

MR. JALELIAN: My only concern, Your Honor, is that some of the Commonwealth's admissions, while not technically labeled "exhibits," I would like to be included in part of the record of this case.

THE COURT: I understand. That's why I said this afternoon I want you and Mr. Good to sit down and make a pile of the other things that need to be marked as exhibits.

MR. JALELIAN: Thank you.

THE COURT: Thank you. Anything more of this witness?

MR. JALELIAN: I do have some more, Your Honor.

THE COURT: All right.

Q In the study that you undertook, you determined that physical countermeasures were unable to be detected in eighty-two percent of the study subjects, is that correct?

A I'd have to see the table, but it sounds correct.

Q Okay.

A But if you're reading it from the table, I'll accept that.

Q And mental countermeasures were unable to be detected in one hundred percent of the subjects, is that correct?

A That's my recollection.

Q So everybody who was taught a mental countermeasure was undetectable in it.

A That's correct.

Q And based on these countermeasures, forty-seven and a half percent of the study fooled, beat the polygraph, is that correct?

A That's correct.

Q So nearly half of the people who you taught countermeasures, who utilized them, beat the test.

A That's correct.

Q And you taught these countermeasures in thirty minutes, isn't that correct? There was no more than thirty minutes of --

A Yes.

Q Okay. Now, it's still, based on that, it's still your assertion that it's not helpful to view a video tape?

A No, there's no evidence of that.

Q There was no evidence. Well, there's evidence that it's easier to detect physical countermeasures than it is mental countermeasures.

A Yes, but those are from the charts.

Q Now, at the conclusion of that article, you say that, "A statistical model may be developed to minimize the risk or error caused by effective countermeasures. And that, furthermore, if a model is found, the adoption" --

THE COURT: I'm sorry, what page are you reading from?

MR. JALELIAN: I'm reading from the --

THE COURT: Oh, I see, 258 at the top of the page.

Q "If a model is found, the adoption of the model is uncertain because the polygraph community hasn't" --

THE COURT: If you're going to read, read slowly. If you just want me to read, tell me what you want me to read and I'll read it.

MR. JALELIAN: Just that portion that I just indicated, Your Honor, thank you.

THE COURT: All right, I have it.

Q Physical and mental countermeasures are the single biggest threat to the detection of deception during a polygraph test, is that true, an accurate test?

A I think that's probably true, yes.

Q Are you familiar with the case of Aldrich Ames?

MR. GOOD: Objection, Your Honor.

THE COURT: Well, what is Aldrich Ames going to teach us?

MR. JALELIAN: Your Honor, the Commonwealth would just put an offer of proof that there was --

THE COURT: Oh, go ahead. And I'll tell you why: Among other things, because the witness referred to the "CIA" in his affidavit.

Q Are you familiar with that case?

A I've had no personal involvement with it; everything I know is from the media.

Q Are you aware that there were two polygraph tests administered to Mr. Ames?

A I know he was tested. I really know very little about that case.

THE COURT: Well, other than that Mr. Ames is a prominent individual who appears to have, in the slang expression, "beaten the machine," what else do you want to know about Mr. Ames?

MR. JALELIAN: That would be it, except that there was testimony before the Senate that he received absolutely no training whatsoever. That would be it.

MR. GOOD: Your Honor, I assume I'll be permitted to redirect. I believe your facts are wrong about whether or not he passed the test, and I'll get to that --

MR. JALELIAN: Your Honor, there are submissions --

THE COURT: I don't think we should spend a lot of time on Mr. Ames, either in this part of the case or later.

MR. GOOD: That was the reason for my objection, Your Honor.

MR. JALELIAN: That's fine, Your Honor, I have no objection.

THE COURT: Let's leave Mr. Ames to history and move along.

Q On page sixteen, paragraph, footnote twenty-one, you refer to an article written in the "Journal of Police Science and Administration."

A Yes.

Q If you know, is that peer reviewed?

A Yes.

Q Do you have a copy of the masthead of the advisory board of that, the editorial board?

A No, I do not.

Q Do you know who sits on the editorial board?

A Not off my head.

Q Do you know how many Ph.D.s, if any, sit on the editorial board?

A No.

Q Then how do you know that it's peer reviewed?

A Because I've submitted to it and I know that it's been sent out for peer review, because I've received the peer reviews back.

Q Do you know who it was sent to?

A No, you never know who peer reviews go out to.

Q Do you know if the organization that has sponsored that journal is now defunct?

A No, I don't know.

Q Would it surprise you if I told you that they were?

A It would a little, yes.

Q Have you submitted anything since 1988 to them?

A No, because the journal ceased publication in 1990 I believe, for financial reasons.

Q So this journal doesn't exist anymore.

A No, it does not. There are many journals that have ceased publication.

Q But this one doesn't.

A This one does not publish anymore.

Q Thank you. You talk about, on paragraph eighteen, "Psychotic persons may not be suitable for polygraph testing, but only when they experience psychotic episodes, delusions, or hallucinations during the examination," is that correct?

A Let's see, where are you?

Q Page seventeen, paragraph --

THE COURT: Paragraph eighteen.

A Paragraph eighteen, here we are. Yes.

Q Are you aware of any evidence in this case whether or not Louise Woodward has been diagnosed as a psychotic, or, in fact, was having a psychotic episode during her polygraph examination?

A No.

Q Now, paragraph twenty goes on for a number of pages, and there is a number of footnotes. Are you aware of that?

A Yes.

Q Actually, not a "number" of footnotes, one footnote that's very lengthy.

THE COURT: I have to tell you that in seventeen years, in fact in thirty-eight years as a lawyer, I've never seen an affidavit with footnotes. I thought perhaps it was going to be submitted for peer review.

Q And in that footnote, you're very critical of an article, is that correct?

A Yes.

Q Are you aware whether or not that article has been published?

A It has just been published, yes.

Q And based on that, it's been published in a peer-review journal, isn't that correct?

A Yes, it has.

Q In fact, it's been published in a journal that, within your footnote, within your paragraph --

THE COURT: I'm sorry, which footnote now are you looking at?

MR. JALELIAN: Footnote twenty-eight, Your Honor.

THE COURT: Yes.

MR. JALELIAN: It spans about --

THE COURT: Yes.

MR. JALELIAN: -- two pages. He's critical of a survey by Iacono and Lykken.

THE COURT: Yes.

MR. JALELIAN: That survey is in evidence. It has since been published.

Q It's been published in the "Journal of Applied Psychology," has it not?

A Yes, it has.

Q And that, you determined, or you state in your affidavit at paragraph twenty-one, "is a mainstream, well respected peer-reviewed journal."

A Yes, it is.

Q And does its publication affect any of your conclusions about it?

MR. GOOD: About which?

MR. JALELIAN: About the study.

A No, it does not.

Q So despite its publication in the peer-reviewed journal, you still have the same critiques about it.

A Yes. Actually, after reading the publication, I have even more concerns about it.

Q But apparently the peer reviewers did not.

A Apparently they did not.

Q Okay, thank you.

On paragraph twenty-one, on page twenty-one, you indicate, "a second and equally important indicator of the acceptance of physiological detection of deception in the scientific community is provided by the large number of original scientific studies published in peer-reviewed scientific journals."

A Yes.

Q Is that essentially saying that quantity has a quality all its own?

A Yes.

Q But that's not true, though, is it? Simply because there's "a lot" doesn't mean that there's agreement.

A No, it doesn't mean there's agreement.

Q But that's what "general acceptance in the scientific community" is, isn't that true?

MR. GOOD: Objection.

THE COURT: No, I'll allow it.

A I don't know specifically how you're defining "general acceptance." If it's not, it would not be published in these journals if it was not accepted as good science.

Q There is not agreement amongst the people who put it in these journals, isn't that correct?

A Oh, absolutely there's disagreement. But there's disagreement on almost virtually everything in science.

Q There's no disagreement on gravity, is there?

A I'm sorry, I --

THE COURT: I think there's an anti-gravity society as a matter of fact.

THE WITNESS: That's right.

Q There's no legitimate disagreement on whether or not gravity works, is there?

A Oh, I think there's a tremendous amount of disagreement about how it works.

THE COURT: Well, that's a question of weight and not admissibility, so let's move on.

MR. JALELIAN: Yes, Your Honor.

Q You indicate on page twenty-four, paragraph twenty-five, that there were studies that you have evaluated, studies done by other individuals about mock juries and post-trial interviews with juries about the presentation of polygraph to the jury and the weight that the jurors give it, is that correct?

A Yes.

Q Now, paragraph twenty-five refers to a survey that you did of other information compiled by other individuals, isn't that correct?

A Yes, that's literature that I've reviewed, yes.

Q And then you indicated that mock juries have a scale from one to seven in one test, and from one to nine in another, is that correct?

A In that one study, yes.

Q And it's a three on the scale without a polygraph, and it's a four with a polygraph.

A Yes.

Q And it's a five, on the one-to-nine scale, it's a five without and it's a six with.

A Yes.

Q And then you say, "that there is a movement towards a not guilty by one on the scale with the admission of polygraph."

A Yes.

Q But then you go on to say that, "They're not inclined to give extraordinary weight to the polygraph evidence."

A Yes.

Q They give it weight though, isn't that true?

A Oh, yes.

Q And they give it weight towards a not guilty, isn't that correct?

A That's all that was offered in that study, so --

Q So you have no evidence about the other direction, do you?

A Not necessarily, no.

Q So, so far as you know, the only effect that a polygraph would have on a jury is a tendency towards a not guilty.

A If it's offered by the defense, yes.

Q That's all we're talking about.

A Yes.

Q And that's all we're talking about in this case at this point.

A Yes.

Q And you're saying --

THE COURT: Well, in terms of science, maybe we're talking about something a little bit more. You may inquire if you wish on the witness's view of the validity of the polygraph if introduced, assuming it could be introduced, by the prosecution to show guilt. That is to say, if in a situation where the defense was permitted to offer a polygraph that tended to support a finding of not guilty, if in the same case the prosecution were permitted to introduce a polygraph that showed, that tended to show guilt, would the witness's view of the validity of polygraphs and the appropriateness of polygraphs as evidence, change.

Q What do you think about that?

A I personally would be comfortable with that, as long as the jury were given the information that the errors in polygraph tests are not distributed equally. There is a larger tendency for innocent people to fail the test than there is for guilty people to pass. So the false-negative error, that is, the guilty person passing, the evidence indicates is quite low. The false-positive error, that is, the innocent person wrongly failing, is higher. And that means that you should have less confidence, somewhat less confidence, in a failed test than you do in a passed test. I would feel comfortable with either side --

THE COURT: Why should it be that, from a scientific standpoint, why should it be that a device which is purported to be capable of ascertaining whether a person is giving truthful answers, why should it tend to err more when the answer that it produces is guilt rather than when it produces an answer of innocence?

THE WITNESS: If I knew the exact answer to that, I'd be famous. I don't know the answer to that question. I know that the data says that that is what happens. I can speculate on why it's true.

THE COURT: Well, the question that I really am wrestling with at this point on this topic is whether that means, whether this imbalance reflects some kind of weakness in the science.

THE WITNESS: I think it -- my opinion would be that it reflects a weakness in the test, and that it does not work as well on innocent people as it does on guilty. But then that turns the confidence around. When someone does pass, the evidence is quite strong that that's a correct outcome. When someone fails, there are more innocent people who fail, and the population of failed tests thus includes more error.

THE COURT: But if you had a test that was designed to show whether somebody had a particular disease, and it was more to be believed if it said they didn't have the disease, than if it said they had the disease, that is the test. I suppose people who would tend to regard that as a real flaw in the test.

THE WITNESS: Actually, Your Honor, there are many tests that are like that. And what is done in that situation is that, if you fail the test that has you have the disease, you'd go on to other tests and rely on other evidence. Whereas, if it says you don't have it, you can feel comfortable that you don't have it. Many of the cancer screening tests are, in fact, like that. So if it says you don't have it, you can go home and feel comfortable; if it says you do have it, you go have some additional tests done before they give you treatment. So it's not at all unusual for a scientific test to have differential error rates.

THE COURT: Okay, thank you.

Q Do differential error rates affect the validity of the scientific grounding of the theory?

A No, they affect your confidence in the outcome you have in front of you.

Q And so they affect the confidence in the result --they affect the answer, but not the underlying theory.

A That's correct.

Q So what you're saying is that there's a fundamental problem with polygraphing a false-negative versus false-positive differential, isn't that correct?

A Well, I wouldn't take that as a "problem," it's just something we know and we have to deal with.

Q Well, it's certainly a problem when innocent people fail the test, and if that evidence were presented to a jury, and the jury convicted an innocent person, that would be a problem, would it not?

A Yes, it's always a problem.

Q And it would also be a problem if a guilty person passed the test and was exonerated, or was found not guilty, that would be equally a problem.

A Obviously, we don't ever want to make mistakes, but nothing is perfect.

Q That's not what I'm asking. But that would be a problem, too, would it not?

A Yes, of course.

Q And the question I asked you is, you're perfectly comfortable with the error rates regarding innocent people who fail, or rather innocent people who pass, but you're not comfortable because guilty people might fail necessarily, isn't that correct?

A You've lost me.

Q Fine. Your problem is that, you have a problem with the false negatives, as opposed to the false positives, is that correct? I may have it backwards.

A No, you have it backwards.

Q Okay.

A I have a concern because the false positive rate is higher. And therefore, if you were to offer a polygraph to impeach someone that had failed it, our confidence in that is lower.

Q So your confidence in the prosecution-offered polygraph is lower than a defense-offered polygraph, is that correct?

A Yes.

Q And that to you is not a fundamental flaw in the problem with this test and the problem with its admissibility?

A No, because I believe juries can deal with that information and treat it appropriately.

MR. JALELIAN: I have no further questions, Your Honor.

THE COURT: All right, redirect. Again, let me just remind everybody, limited to new matter brought out on cross.

MR. GOOD: Yes, Your Honor. I want to propose a slight scheduling change which I've discussed with my brother. With the approval of the Court, our next witness would be Dr. Raskin. Dr. Raskin has been in the area, the Boston area, since last Wednesday. He lives in Alaska and has need to go back tonight.

THE COURT: What do you want to do? Do you want to break this witness and put on Dr. Raskin?

MR. GOOD: That's what I'm suggesting.

THE COURT: Any problem with that?

MR. JALELIAN: No, Your Honor.

THE COURT: All right. Thank you. If you don't mind.

THE WITNESS: Thank you, Your Honor.

THE COURT: But I'll ask you to wait outside, please.