THE COURT: Dr. Raskin's direct testimony will be Exhibit No. 6.
(Document, as above, received
and marked Exhibit No. 6.)
THE COURT: I have Dr. Raskin's direct, but we don't seem to have the original. However, that won't stop us. That will be Exhibit 6.
DAVID RASKIN, Sworn
THE COURT: Please give us your full name.
THE WITNESS: David C. Raskin: R-A-S-K-I-N.
THE COURT: And your date of birth please.
THE WITNESS: July 28th, 1935.
THE COURT: Thirty-five?
THE WITNESS: Yes.
THE COURT: All right. And Dr. Raskin's direct testimony is Exhibit 6, and you may cross examine.
MR. JALELIAN: Thank you, Your Honor.
CROSS-EXAMINATION BY MR. JALELIAN
Q Doctor, you have a Ph.D. in psychology from the University of California at Los Angeles that you obtained in 1963, is that correct?
A Yes.
Q And was it in any sub-specialty within the field of psychology?
A Well, the general field would be experimental psychology. My specialization was in human memory and human psychophysiology.
Q And at the time, was that a recognized sub-specialty of psychology?
A Yes.
Q You neglected to include that in your affidavit, is that correct?
A If it's not in my affidavit, it's not.
Q So the answer to my question is yes, I neglected to --
A I wouldn't consider it "neglect," it's just not there.
Q You stated that you're a licensed polygraph examiner in the states of Utah and New Mexico, is that correct?
A Yes.
Q Are you licensed to conduct polygraphs in Massachusetts?
A As far as I know, there is no licensing requirement.
Q If I were to tell you that the licensing requirement required by the State of Massachusetts is that you be a private investigator, would that determine whether or not you were licensed in Massachusetts to conduct polygraph examinations?
A The -- I'm sorry?
Q Are you a licensed private investigator in the State of Massachusetts?
A No, I am not.
Q Okay. Are you aware that, to be a licensed polygrapher, you need to be a licensed private investigator in the State of Massachusetts?
A I'm sorry, I'm confused.
THE COURT: Excuse me. The doctor says that he understands that you don't need a license to be a polygraph examiner in Massachusetts. If you wish to call to his attention that he's in error, please feel free to do so.
Q Are you aware that to be a polygraph examiner in Massachusetts, you need to be a licensed private investigator?
A In Massachusetts?
Q Yes.
A I am not aware of that.
Q You have no medical background, do you?
A No.
Q And do you have any graduate degrees in statistics?
A My degrees are in psychology; one of my specializations in my Ph.D. was in statistics and measurement.
Q Do you have a degree in statistics?
A Not a separate one.
Q Now, have you -- it's true, is it not, that you have always testified for the general validity of polygraphs?
A No, it is not.
Q When have you testified against the general validity of polygraphs?
A The very first time I testified about polygraphs.
Q When was that?
A 1970.
Q Where was that?
A Salt Lake City, Utah.
Q And that, you've only testified once against the general validity?
A Well, I have to clarify the answer, I can't answer it just yes or no.
Q Have you testified more than once for the general validity of polygraphy?
A If I could explain my answer.
Q Sir --
THE COURT: Excuse me. In 1970, did you testify for or against the general validity of polygraphs?
THE WITNESS: Against.
THE COURT: And you say that's the only time you've done that?
THE WITNESS: The only time I've done that in that way in terms of a specific polygraph test in a criminal investigation. However, I have testified against polygraphs' general validity with regard to other types of polygraph tests.
Q Have you ever testified against the general validity of the polygraph test as it falls within psychophysiology?
A In part, that's the problem I'm having answering your question, because --
Q Well, let me ask you this --
A -- there are different types of polygraph tests that fall within the general concept of psychophysiology.
THE COURT: Have you ever testified against the validity of the science that underlies polygraph tests PDD?
THE WITNESS: No, not the science.
Q Never.
A Well, yes, that one very first time.
Q Except that one time. And then after that, you've always testified for the validity of the science underlying polygraph.
A Yes, except as it applies to certain kinds of polygraph --
Q Not specific tests.
MR. GOOD: Your Honor, the witness is trying to answer.
THE COURT: Well, no, the witness -- I'm sorry, but the question is a specific one and the witness is giving a general answer.
THE WITNESS: I'm sorry, Your Honor, I couldn't hear you.
THE COURT: I've overruled the objection.
Q On paragraph two of your affidavit -- is your affidavit before you?
A No, but I'll get it out if you'd like.
Q Do you have it before you now?
A Yes.
Q In paragraph two, you testified, "Polygraph techniques for assessing the credibility of individuals" --
THE COURT: Slow down.
A "Polygraph techniques for assessing the credibility of individuals are derived directly from basic scientific principles and research in psychology and human psychophysiology." Is that correct?
A Yes.
Q What "basic scientific principles" to begin with?
A The basic scientific principles have to do with human psychophysiology, how the body generates physiological reactions.
THE COURT: No, no. I think "basic principles" means a listing of the principles, a specification of the principles.
THE WITNESS: I'm sorry, Your Honor.
A You're talking about even more general questions?
Q What basic scientific -- it's your affidavit, Mr. Raskin, you'd know -- "basic scientific principles."
A Very well, if you want me to get to that now, sure.
"Basic scientific principles" have to do with the development of empirically testable hypotheses as they are derived from theories and concepts of the science, the --
THE COURT: "Basic scientific principles" is like this. If I take two canon balls, one big and one small, to the top of the Tower of Pisa, and drop them down, they'll both land at the same time. That's a "principle."
To say, "If I go to the top of Tower of Pisa, I'll explore general ideas about gravity," that's not a basic principle.
I'd like the former and not the latter.
THE WITNESS: Yes, Your Honor, that's why I was answering it in terms of the principles of psychophysiology.
THE COURT: It might be helpful if you did it this way: Principle number one is, principle number two is, principle number three is.
THE WITNESS: Yes, that's what I was --
THE COURT: Okay. What's principle number one?
THE WITNESS: Principle number one is that, our bodies function in a certain way, such that if we present stimuli, certain reactions will occur. Now, there's certain control conditions. Those reactions can be measured with instrumentation such as polygraphs.
Number three, when one does that, and does it in a structured situation, one can make these measurements and make interpretations on the basis of the pattern of reactions observed that allow us to distinguish between individuals who are being truthful and individuals who are being deceptive.
Q It's a basic scientific principle that allows an individual to make a determination of truth-telling, is that your testimony?
A In the sense that His Honor posed that, yes, because it becomes an empirical question ultimately as to whether or not one can apply those principles and verify that finding empirically.
Q Where is that basic scientific principle written?
A There is an entire body of human psychophysiological research in the basic textbooks.
Q What textbook; just name one.
A Well, any of the textbooks on principles of psychophysiology that start --
Q Do you have a title?
A -- with Greenfield, for example, the Greenfield text --
Q That textbook says it's a basic scientific principle that a polygraph can detect deception?
A No, you didn't allow me to finish my answer.
THE COURT: Excuse me, but I think, Professor Raskin, what you are doing is, inadvertently perhaps, slipping from the specific to the general.
An example of what I assume will be a basic principle here is that blood pressure changes in response to stimuli. It's not a basic principle that a skillful examiner can tell whether somebody's being deceptive. That's maybe the result of application of the basic principles. But when you say in your direct testimony, that "polygraph techniques for assessing credibility are derived directly from basic scientific principles," that invites, in response to a question as to "what do you mean by basic scientific principles," a statement of principles, not a statement of use of principles.
I think it would be helpful, at least I know it would be helpful to me, if you could, if I can put it this way, catalogue what you meant when you said "basic scientific principles."
THE WITNESS: I understand, Your Honor. I guess I want to clarify. The term "derived" here, of course, means the whole process. And then when you said that you could drop the balls and you could see if they land at the same time, that also implies the end result. So if you'd prefer that I not get to that last stage, that's fine with me. I just am not quite clear on what the question is, but the basic --
THE COURT: Well, "derived" means, if you apply the principles, you come up with a result, you come up with a theory, or you come up with a technique. And what we are asking you to do is to tell us what the building blocks are in which you established a technique, or whatever it is you established.
THE WITNESS: Yes, I understand, Your Honor. And it's the techniques that are derived and not the result. So the techniques are the techniques that I mentioned, up to the point of saying one can then make an inference. So the techniques involved the autonomic --
THE COURT: Excuse me, I don't mean to interrupt you but I want to keep you on the point.
THE WITNESS: Yes.
THE COURT: The question is what are the principles.
THE WITNESS: Yes. The principles are, as I stated before, that the human body responds to certain stimuli in certain ways. If you present various types of stimuli, there are certain kinds of reactions that occur automatically that are controlled by the autonomic nervous system. Those include a number of things that are measured by polygraph techniques: changes in electrodermal activity, or sweat gland activity in the palms of the hands; changes in blood pressure; change in respiration. Those then can be measured with instrumentation. These are standard procedures of psychophysiology.
THE COURT: You seemed to have gone over, that is, elited one principle that I assume is basic. And that is - and I wish you would correct me if I'm wrong - but it seems to be a principle, at least in the materials that I've read, that when somebody is deliberately being deceptive, changes in autonomic responses occur. Is that a basic principle of --
THE WITNESS: No, that's an empirical question. That's something that then can be measured. It's an application of these principles. So the technique involves the measurement, and then whether or not that actually occurs is an empirical question to be determined by scientific tests.
THE COURT: Are you saying it's not a basic principle underlying the polygraph that when a person is being deceptive, there are changes in the autonomic response that do not occur when a person is not being deceptive, is that what you're saying?
THE WITNESS: No, I'm not saying that, Your Honor. I'm saying that is a part of polygraph theory, it's not a part of the basic principles of psychophysiology, it's an application. It's derived from the -- it's a special application.
THE COURT: So it's not a scientific principle, is that right? Do I have this straight? It's not a scientific principle that when somebody is telling a fib, the blood pressure goes up, for example?
THE WITNESS: It's a scientific fact.
THE COURT: It's not a principle. At least, it's not one of the principles that you were talking about in paragraph two of your direct testimony. I just want to be sure that I know what you're saying.
THE WITNESS: Yes, Your Honor. And I want to be sure that I'm not being unclear here. There are two issues that are embodied in these questions: one has to do with the underlying science, and the other has to do with the application of that science when it comes to a particular problem, namely assessing credibility or truth in deception.
THE COURT: No, I'm not talking about --I'm getting to the very basics. As I understand it, and I want to be corrected, it's basic to the whole idea of the validity of the polygraph --
THE WITNESS: Yes.
THE COURT: -- that physiological changes occur in response to mental activity. Or put another way: When you lie, your blood pressure goes up.
THE WITNESS: That's one example of those kinds of involuntary reactions, yes.
THE COURT: Carry on.
MR. JALELIAN: Thank you, Your Honor.
Q You're familiar with an X-ray, isn't that correct?
A I'm sorry?
Q An X-ray, you're familiar with that?
A Yes.
Q Picture of a bone, compare one picture of a bone with another picture of a bone?
A Yes.
Q And you're familiar with the term "ground truth," is that correct?
A Yes.
Q Now, the responses that you get when you come to a conclusion on a polygraph that a person is not being deceptive, is certainly not like an X-ray, where you can quantify it and measurably compare two pictures, is that correct?
A The process is different, but the ultimate principles are the same.
Q The ultimate principles are, you can verify an X-ray, isn't that correct, you can compare an X-ray taken today with an X-ray taken a month from today, or ten years from today, of the same bone. And compare those through independent observation and independent corroboration based on quantifiable data, isn't that correct?
A Yes, although you have --
Q And you cannot do that with the polygraph, can you?
A Excuse me. You have to make inferences as to what those data indicate.
Q And the inferences are based on bone structure, and calcium deposits, and human anatomy, isn't that correct, with an X-ray?
A The inferences are based on that and also the measurements you obtained to obtain the basis for the inference. And the same is true in a polygraph.
Q The same is true in a polygraph. Your testimony is that you can compare a quantifiable known result on a control question, with a quantifiable known result on a relevant question, and draw the same type of inferences that are as accurate as two X-rays?
A That's a different question. The accuracy is an empirical question. The other question is --
Q You're saying that the inferences --
THE COURT: No, let him finish.
A One is a question of process, how you go about doing it, and they are fundamentally the same type of process applied to different problems. The question is how accurate is the X-ray interpretation, and how accurate is the polygraph. Those are empirical questions.
Q And empirically, you can test by quantifiable data, known quantifiable data, by a control being the first X-ray, against the second X-ray, isn't that true?
A You can do that, yes.
Q You can't do that with a polygraph, can you?
A Yes, you can.
Q Because, is it your assertion that the control question provides the baseline?
A Well, it is my assertion that the observed pattern of differences and reactions that are quantifiable, provide the information.
Q Well, what is the foundation against which you measure the responses?
A I'm not sure I understand your question.
Q Isn't it true that the foundation against which you measure the responses is within the same test, the control question responses versus the relevant question responses, isn't that correct?
A That is how you quantify the result on a given test, just as you would make measurements on an X-ray. It's a different set of data, but it's a process of measurement and quantification.
Q And the data itself in an X-ray is verifiable and quantifiable and testable, by walking up to the patient and touching their arm, isn't that correct?
A Not necessarily.
Q It is verifiable though, isn't that correct, physically verifiable?
A There are various indices that could be used to confirm your inference from the X-ray.
Q One of which is actual verification, isn't that correct?
A I'm not sure what you mean by "actual verification."
Q Looking at the patient.
A Yes, but then you have to make an inference then also.
Q Well, if you have a bone sticking out of an arm, you don't have to make much of an inference, isn't that correct?
A No, and you don't need an X-ray to know that it's broken.
Q But it would certainly help you in verifying it.
A I don't think it would help you in verifying it, it would help you to know how to treat it.
THE COURT: Well, take it this way. A person has an ache in his arm after an outside blow. Nothing's visible and you can't, there's no crepitus, or anything like that. That an X-ray then shows a fracture.
THE WITNESS: Yes, sir.
THE COURT: Now, that's verifiable. I think that's what Mr. --
THE WITNESS: An X-ray gives you strong evidence of what we think is causing the pain.
THE COURT: And if you have an X-ray that was taken of the same patient and the same arm six months ago, and it doesn't show a fracture --
THE WITNESS: Yes.
THE COURT: -- that fortifies your --
THE WITNESS: Then you would assume the person did not have a broken arm at that time, yes.
Q Could you define "control group" please in the scientific sense.
A A control group in a scientific study is a group that provides some basis for comparison with some manipulation of experimental conditions.
Q And the control group is, in a sense, controlled, isn't that true? You know what are the characteristics of the control group, is that correct?
A To some degree.
Q Like a placebo, for example, would that be a control group? That the control group was given a known drug.
A The treatment of that group would be known. The other characteristics may or may not be known.
Q But that, in a sense, you know what the control group is being treated with. It's a control group because you know what it's being treated with, is that correct?
A That's right, it's a basis for comparison.
Q It's the baseline. And in the polygraph, the so-called "control group" is the control question, isn't that correct?
A No, that's a total misinterpretation of the meaning of a control group.
Q That's a total misinterpretation of the meaning of a control group?
A It's a completely different concept. It is not a group, it is not an experimental condition. A polygraph test is not a scientific experiment. That's completely wrong.
Q So you're saying that it's not a scientific experiment.
A A polygraph test is not a scientific experiment, just as if you went to a doctor's office and had an EKG, that's not a scientific experiment, it's a diagnostic procedure based upon a scientific experiment.
Q When you give a polygraph test, what is your baseline against which you're determining truth? Is it not the responses to the relevant questions and the control questions?
A Well, there are two things implicit in the question that you asked.
Q Sir, is it not -- I'm asking yes-or-no questions. If you can't understand them, or you can't respond to them, please say it and I'll rephrase the question. But if you want to give your own answers --
THE COURT: No. Look, it's pretty simple, Doctor. The question is, how do you know what's true for this subject, that is for the individual, how do you figure out when the person is being truthful, as a step to figuring out when the person's being deceptive. So that's the question. How do you find the baseline of truth?
THE WITNESS: The problem I have with that question is, Your Honor, that that's not how a polygraph is done, and that's not how the inference is made, and that's where we're having the problem. The baseline, as we were talking about it is, what are the data that allow you to make this inference. And then what measurements do you make that allow you to make an inference in this instance that is the same type of inference that's done in collecting the scientific data that are the referents.
In a polygraph test, you're measuring a pattern of reactions, and it is the difference between the control and relevant questions, in terms of how big and which way it goes, that provides the basis for the inference. And that is then referred to a set of scientific data that tells you when the pattern is consistently this way, it's likely to have been associated with deception; and when the pattern is consistently that way, it's likely to have been associated with truthfulness.
The same is true of an electrocardiogram. When you measure the individual's heart function, you are not measuring directly their cardiac, whether or not they have heart disease. You make a measurement, you find certain features, and then you make a reference to a set of data collected over a large number of people who did or did not have that disease. And if that characteristic is associated with that disease, and in this EKG that characteristic appears, then you can make a scientific inference that that's likely to be an indication of that disease. That's how the polygraph is done.
THE COURT: Yes. But in the polygraph, you're not measuring the individual against a series of other individuals who have the same characteristics. What you're doing, at least as it's been disclosed to me in the voluminous materials, you're deciding what this individual does physiologically, when this individual is telling the truth. And you decide what this individual does physiologically when this individual is being deceptive. And then you take the relevant questions, that is the questions that mean something to the issue to be decided, and you hold up, as it were, the reaction of the individual to those questions against the data that you've developed on what the individual's picture looks like when the individual is either telling the truth, or on the other hand, being deceptive. Isn't that what the process is? If it isn't, tell me.
THE WITNESS: In part it is that process. But it is that process, and the result of that process in relation to having done that in a larger group to determine what kinds of findings then would allow you to make the correct inference about truth or deception with that individual. So it is the differences, and how the differences appear over a set of individuals that allows you now to say, "When I do that with this individual, if the pattern goes this way, it's associated with that group of people who showed that pattern who were, in fact, truthful. Or if it goes that way, it is associated with the differences observed in a group of people that were being deceptive."
THE COURT: Don't you have to develop data for this individual first before you can start comparing this individual with others?
THE WITNESS: No, you have to gather it in the application, but the application is based upon the large set of scientific data that allow you then to make an inference about the data from this individual. Just as the X-ray is: The X-ray is based upon a large amount of experience showing that when certain lines appear, and certain shadows appear in the picture, it is associated with certain kinds of conditions.
THE COURT: Look, when you -- a cardiologist will take an EKG at a time when there's no heart problems. Then, and we refer to that as the "baseline." And then when you go in for your annual physical, a cardiologist will do an EKG again and will compare the later EKG with the original one.
Now, what is the analogue to the baseline original EKG, what is the analogue to that in the polygraph of an individual?
THE WITNESS: Well, Your Honor, that is not the analogue with regard to the EKG. The analogue with regard to the EKG would be that, first of all, we don't have a prior EKG, we have this individual who presents with symptoms. And your problem is to diagnose what those symptoms mean. You bring the individual in and you give him a stress test. You measure his electrocardiogram before he steps up and down the stairs a hundred times, and then you measure it afterward. And you look at the pattern before and the pattern after. And then you see if certain characteristics appear which allow you now to make an inference about his condition right now. Because we know from a large set of data, that when people have a certain condition, you see certain things appear.
The analogue on the polygraph is, you present him with control questions, or comparison questions, and you observe his pattern of reaction to that. And you present him with relevant questions, and you observe his pattern to that. Then you make a comparison of the change or the difference and where the balance of reaction lies. You then compare that difference in pattern to those two types of questions to the differences observed in a set of people who are known to have been deceptive, and a set of people who are known to have been truthful, and you see which one it matches.
THE COURT: Well, what is the analogue to, and what -- excuse me, let me start again. What, in the polygraph context, is the analogue to the EKG that's taken just before starting the step test?
THE WITNESS: It would be the control questions or comparison questions. They provide the baseline for that individual. But they cannot be interpreted in isolation because you have to know what kinds of patterns then, in comparison, indicate which state, deception or truthfulness.
THE COURT: Yes, but what started this part of the discussion, and what is puzzling me is, control questions include questions as to which you know that the response is truthful.
THE WITNESS: No, Your Honor, the contrary. The control questions, or comparison questions in the control-question test, are designed to elicit deception, or concern about deception if you're using a probable-lie question, or are actually instructed to elicit deception if you're using a directed-lie question.
THE COURT: Well, they're questions that are based on truth one way or the other: Either they're based on truth because they're true, or they're based on truth because they're known to be false.
THE WITNESS: Generally, they're known to be false; particularly with a directed lie, they are established to be false.
THE COURT: Well, I'm sorry, but you haven't explained it to clear up my mind, but I'll let counsel carry on.
THE WITNESS: I'd be happy to try to do that, Your Honor.
Q You indicated that the baseline, or the analogue, is the control question, is that correct?
A The comparison is often called the "control question," it's a comparison question.
Q A comparison question would be a better term.
A Yes.
Q It's not a control, certainly it's not a control in the scientific sense.
A No, it's not a scientific experiment.
Q So "control question" has become a misnomer over the years, is that correct?
A In fact, it wasn't originally called the "control question," it crept into the literature, and that's an error in the literature.
Q But it's commonly known as a "control question."
A Yes.
Q Now, you indicated on cross-examination about five minutes ago, that it is a scientific fact that a person's blood pressure increases when they are telling a fib, I believe, to the question of the Court.
A That's a demonstrable phenomenon.
Q It is a scientific fact.
A Yes.
Q A raise in the blood pressure is a physiological response, isn't that correct?
A That's correct.
Q And you wrote, in 1986, you wrote a law review article for the "Utah Law Review"?
A Yes, I did.
Q Is that correct? And in that, you also testified in February of this year, in a case, Commonwealth versus Graham.
A Yes.
Q And in it you said, "It's true, as a matter of fact, that there is no specific pattern of physiological reactions that occur when and only when a person is practicing deception."
A That is correct.
Q "And also, there is no known physiological response, or pattern of responses, unique to deception."
A That is correct.
Q So how then is it a scientific fact, that when a person's blood pressure increases when they lie, if there is no known specific pattern, isn't that a pattern?
A No, you have left out an important thing in your restatement of it. "Unique" is the term that's operative here. The pattern that occurs in a rise in blood pressure when a person is deceptive, does occur; but it also occurs in other situations. Therefore, it is not unique.
Q So it's your testimony that it is an absolute scientific fact that someone's blood pressure increases when they are telling a fib.
A In general. Not everybody's does, but most --
Q It is not a scientific fact.
A Pardon me?
Q It's not a scientific fact then, is it?
A Oh, yes, it is, it's a question of probabilities, not in variance.
Q Sir, if it doesn't occur in certain circumstances, it's not a fact.
A The fact is that it does occur in most circumstances, that is the fact.
Q It is a fact that it occurs in most circumstances now? So it is not a scientific fact that a person has an increase in blood pressure when they're telling a lie. It's a fact that it occurs most of the time.
A Any given individual may show that, but not absolutely everyone will. That's why more than one thing has to be measured.
Q Now, in the course -- other stimuli can cause the changes, isn't that correct?
A Yes, that's what I just said.
Q That stimuli would include a stomach flu.
A It could.
Q Or a heart, a heart murmur, or something like that.
A Possibly.
Q Heart disease, high blood pressure or low blood pressure.
A Well, not general state things like that, no.
Q But a stomach flu could.
A If a person has high blood pressure all the time, then --
Q Intermittent blood pressure though then could.
A Pardon me?
Q If they have intermittent blood pressure, a condition that gives them intermittent blood pressure --
A In other words varying blood pressure. Yes, like erratic blood pressure. Yes. Then it might occur by chance at that point in time, yes.
Q And if they have a stomach flu at the time, that would affect it.
A That's possible. They might have a pain or something like that.
Q If they have some kind of condition that would affect their sweat glands, that would affect it, too.
A It could.
Q And the information that you get when you take a polygraph test, substantially comes from the subject, isn't that correct?
A Not necessarily, no.
Q In this case, where did you get your information, in the case of Louise Woodward?
MR. GOOD: Which information are you referring to?
MR. JALELIAN: Any information he used in taking the test.
THE COURT: Fair enough.
A I had a very extensive set of documents.
Q What was contained in that document?
A Medical reports, the police reports, reports of interviews of various witnesses, including Ms. Woodward, all of the basic case facts available with regard to the investigation.
Q Now, you state that, in paragraph three on page two, "Physiological measurement techniques for the detection of deception have been developed and subjected to scientific evaluation for almost one hundred years. And the most commonly used polygraph tests are based on generally accepted scientific principles."
A Yes.
Q "Almost one hundred years." So there are scientific studies dating back to 1897 surrounding the polygraph?
A I believe the first one was published by Cesare Lombroso in Italy in 1895, and Benvenucci in Italy in the late 1890s also.
Q Now, you state that, "It's based on generally accepted scientific principles." Which ones?
A The principles of psychophysiology that I enunciated before.
Q Despite the fact that there's no specific pattern of physiological reactions that occur when and only one a person is practicing deception.
A Right. In fact, polygraph techniques have never relied upon that concept, except, the earlier version of the polygraph, called the relevant-irrelevant test that did not recognize the lack of such a concept. And that's what I testified to the very first time I testified in 1970.
Q Now, on page three you indicate that, "It's well established that deception to such a question as, 'Did you deliberately inflict the injuries that resulted in Matthew's death?' would be highly likely to produce substantial physiological reaction during the polygraph test."
A Yes.
Q To whom is it "well established"?
A To anybody that knows that scientific literature.
Q So anybody, including Professor Saxe, Professor Iacono, Professor Lykken, would agree with that, is that correct?
A No, that's not what I said. I don't believe Professor Saxe agrees with that because I don't believe Professor Saxe is conversant with the literature that allows him to do that. Professor Iacono, in his own research, demonstrates that that's what happens.
Q It's your position that Professor Saxe just doesn't understand, not that he disagrees.
A Well, there may be other reasons why he says that, but it's clearly --
Q But you've said --
A Excuse me. It's clearly inconsistent with the scientific literature.
Q You have testified, have you not, that Professor Saxe has a fundamental misapprehension of the information?
A I think he confuses --
Q Sir, have you testified to that?
A Yes, he confuses fundamentally the concept of a unique pattern of reaction when one is lying, with the actual underlying principles of a polygraph test.
Q And it's your understanding that he doesn't understand it, not that he disagrees with you.
A His writings indicate --
Q Yes or no.
A -- he does not understand it.
Q That's your interpretation, that he doesn't understand it.
A Well, I think --
Q Is that correct?
A I think it's obvious.
Q "It's obvious." Is it obvious to the "Journal of Applied Psychology," a peer-review journal that publishes his work, that he doesn't understand it?
A I don't believe he's ever published an article on polygraph in the "Journal of Applied Psychology."
Q Have you read any of his articles?
A I've read all of them that I know of.
Q Every article you've read by him?
A All the ones that I know of, and there are not very many.
Q "He hasn't written very many articles," is that your testimony?
A He's written, I would estimate, about --
Q I'm talking about "articles" in general.
A Pardon me?
Q I'm talking about "any articles." You said --
A I'm talking about polygraph articles.
Q Well, you need to state that in your answer, sir.
A Well, I thought that's what you were asking me.
Q Now, you indicate that, "since the relevant questions are very important and potentially threatening to an examinee, many persons might react to the relevant questions, even when answering truthfully."
A Yes.
Q "Threatening" in what sense?
A That these are questions about important issues, in that the consequences of reacting to them could have, could be serious for the individual.
Q In terms of incarceration, or if it's a death-penalty case, death?
A Or even in terms of just you or I not believing him, depending upon the circumstances.
Q Well, certainly the threat is greater if incarceration is the potential penalty, than disbelief by a person on the street, isn't that true?
A I suppose in that extreme situation, yes. But there are people --
Q Well, these tests are given in circumstances where the threat, especially this test, is the possibility of life without the possibility of parole.
A Yes.
Q So the threat from that is the threat from being found deceptive and having that response potentially being inculpatory, and causing the person to potentially be incarcerated.
A Yes, in this situation it would be potentially an extreme threat.
Q So it's a threat or fear of being caught in a lie, isn't that correct?
A Yes, if there is a lie.
Q But that's the whole basis of the test, is that you instill upon the examinee that they have to tell you the truth on certain questions because you're going to know whether or not they're giving you a proper response, isn't that correct? You're going to be able to determine whether the response is truthful or not. So you actually --
A I instill in them the attitude that I am there to determine if they're telling the truth on the issues.
Q And that, in fact, instills the threat or the concern about the responses, is that correct, to relevant questions.
A It certainly reenforces it. They probably had that concern even before I walked in the room, that they know that's what we're going to be doing.
Q Have you ever polygraphed on behalf of law enforcement agencies?
A Yes.
Q Now, is the dynamic between a subject who's a suspect in a case when you're polygraphing on behalf of law enforcement, different from a subject who you're polygraphing on behalf of their counsel?
A In terms of the polygraph testing?
Q In terms of your approach.
A No, it's no different at all.
Q In terms of, based on what you know from the literature and your studies in terms of the responses.
A Not the way I do the test, no.
Q What about when other people do the test?
A Well, it would depend on how they do it. If they're confrontive and abusive, then it could be different.
Q Is the fundamental purpose when an individual -- strike that. You state that, "With either type of control question" - on page three of your affidavit - "it is expected that deceptive or guilty subjects will show stronger reactions to relevant questions because of concern about being discovered in deception on the important issues of the test."
A Yes.
Q "Concern." Is that also fear and the threat that we just talked about?
A Well, it could be full blown fear. "Fear" is a technical term that we use that means certain kinds of things that are generally not fully present in the polygraph. "Fear" is a very intense emotion. But "fear" in a more general sense of being apprehensive, being concerned, being worried, being anxious, that type of fear.
Q That's, in fact, the dynamic that you want to have in the polygraph test, is that correct?
A Well, you want to have that appropriately focused.
Q I understand that. But that's what you want to instill in the subject to a certain extent.
A Well, you usually don't have to; they come in with lots of it. The biggest problem is actually to get it down to a manageable level.
Q So that the reactions can be -- well, what difference would the level be? If the control question and the relevant questions are going to give equal responses, what difference does it make if they're a high level of threat or if they're a low level of threat?
A If the person is so anxious and fearful during the examination process, their attention may be so scattered and unfocused, you may not be able to conduct the test properly if they're so fearful and anxious. You have to get them focused on the task. And an overriding level of fear might make it impossible to even conduct a proper test if they're so afraid and anxious.
Q You stated that, it's true, is it not, that if someone has a heart condition, the heart condition will show up throughout the whole test.
A Not necessarily.
Q Could it?
A High blood pressure would tend to. But certain heart conditions, such as ectopic beats, and, you know, premature ventricular contractions, tend to come and go during the polygraph test.
Q High blood pressure. You can work within the polygraph test itself the fact that the individual has high blood pressure.
A Oh, yes.
Q So that wouldn't be a bar.
A No.
Q But you're saying that fear or concern would be.
A Well, overriding fear, to the point where the person is disorganized and unfocused would be an impediment to any kind of a psychological evaluation or even a medical evaluation --
Q So and you indicated --
A The person would not be suitable for measurement.
Q You indicated that that full-blown fear is very rare and extreme.
A It's unusual, yes.
Q So can you factor in for a high level of concern based on a strong threat?
A I'm sorry, could I "factor in"?
Q Could you factor in your test as an impediment, is it an impediment to a test if the person has a high level of concern or fear about the potential threat?
A No, as long as it does not interfere with --
Q But beyond extreme levels.
A No, most people have that, and of course, your whole examination procedure is designed to get that to a manageable level.
Q Now, you testified in 1989 in the Commonwealth of Massachusetts, isn't that true, in the Commonwealth versus Mendes case?
A I think I probably testified in '88.
Q Did you testify in the Commonwealth versus Mendes case?
A I testified in that case, yes.
Q And you testified for the defense, isn't that true?
A I was called by the defense.
Q And you testified for the defense.
A Well, they called me as a witness.
Q And as a result of your testimony, certain statistics were entered into evidence, isn't that true?
A Through my testimony, yes.
Q And then as a result of that, Massachusetts established a complete ban on the admissibility of polygraph, isn't that true?
A Not based upon the findings of the judge who heard my testimony, no.
Q That isn't what I'm asking you, sir, I'm asking you what the state of the law in the State of Massachusetts was as a result of that case.
A Oh, of that case, but not my testimony per se. They made a ruling, and the ruling was to exclude polygraphs. And the Supreme Judicial Court --
Q Under all circumstances.
A But the judge who heard the testimony made the opposite ruling.
Q Sir, I'm not interested in what the judge did.
THE COURT: All right, all right, all right.
Q Now, you determine things based on what's called "ground truth," isn't that correct?
A Yes.
Q "Ground truth" is the reality of what, in fact, took place.
A Well, "ground truth" is the best approach you can have to reality. Nobody ever knows reality with absolute certainty, in the sense I think you're talking about. That's a philosophical issue. But nobody knows the --
Q Well, the individuals who are the subjects of your tests know whether or not they committed those crimes.
A We assume they do. And we set it up so we hope that they do, and then we hope that we do.
Q So you're saying that the best you can come to as a polygraph examiner is not even that.
A No, I didn't say that. I just said, when you talk about "reality" in the sense you've put it, that's a pretty strong statement. In the laboratory, we can set it up so we can have virtual certainty.
Q I'm talking about field, from an actual test.
A In actual field cases, we obtain data and information that we use as a criterion of ground truth, which we hope is a representation of reality.
Q Now, you've also written a critique in 1986 in the "Utah Law Review," and you criticized, you had certain criticisms about lab tests, is that correct?
A Well, I'm not sure what you mean by "criticisms."
Q Well, you indicated that small samples are problematic.
A They can be, depending upon the laboratory study.
Q And also that students hired by professors such as yourself to commit mock crimes, doesn't mimic, it doesn't mirror real life apprehension.
A Well, I think you're paraphrasing what I said and --
Q Well, hold on, I'll do it, I'll get to it.
"Because laboratory situations are not real-life situations, especially in terms of the negative consequences of failing the test and the rewards of passing the tests, additional studies are required to estimate the accuracy of polygraph examinations conducted in actual criminal investigations."
A Absolutely.
Q Okay. And that was in 1986. And you've still been doing that, studies like that.
A That was my position then, and it's my position today.
Q So there's still not enough.
A No, my position is that you need field research.
Q Well, you need field research to validate the science, don't you?
A Yes, to validate its application.
Q So you're saying, you're testifying at this point that the application of polygraph isn't scientifically valid?
A No, I didn't say that at all.
Q Then why do we need more research?
A I said at the time I wrote that, there was an indication that more research would be desirable or --
Q Do you feel that now?
A Excuse me, may I finish my answer? More research is always desirable because it gives us a firmer basis in anything, and that's in any field of science. But the research today is certainly adequate to answer the question as to whether or not in the field, polygraph tests are valid.
Q So you would just like more research for the sake of more research.
A We can always find out more things with more research, and that's true in medical science and physics and chemistry; we always learn more. But that doesn't mean --
Q Is more research also necessary to eradicate smallpox?
THE COURT: Well --
MR. JALELIAN: He's making assertions that it's necessary, we might learn more about any scientific undertaking. And this is not the same.
THE COURT: Knowledge is wonderful.
THE WITNESS: That's how science works.
Q Now, you also indicate that the error rates -- do you recall the error rates in 1989?
A That's correct.
Q Do you recall the error rates in 1989 that you testified to in Commonwealth versus Mendes?
A Looking at the transcript would refresh my memory because it's eight years ago.
THE COURT: Well, why don't you put to the witness what he said.
Q Do you recall that you said that, "a ninety-seven percent confidence in a guilty rate and a ninety-two percent in an innocent rate," does that sound about right?
A That was based upon the average of studies, I believe, from the laboratory.
Q Okay. And there were also studies also presented in Mendes, where it was an eight-four percent guilty and a fifty-three percent innocent. Do you recall that?
A Some people presented data like that, and --
Q Presented at the hearing on Mendes.
A There are studies that show that. The results of the studies vary, and what we have to rely upon are averages.
THE COURT: There were three different studies presented in Mendes, at least studies on which the SJC relied. They showed widely divergent confidence rates with respect to innocence and guilt. Now, let's move on.
Q Sir, are you aware of a "North Dakota Law Review" written by Professor Honts?
A Yes.
Q And have you had an opportunity to look at the tables at the end of that article?
A Yes.
Q And if you know, do you see any variation between the numbers that were presented in Mendes, and numbers that were also available at the end of the tables?
A Yes, because there are data in those tables that did not exist at the time of Mendes.
Q But have the numbers changed?
A But more recent data show higher accuracies in the field.
Q They also indicate that there are low accuracies too, do they not? There is still a wide variety, is there not?
A Well, the old data still exists, and the new data don't erase them, but the trends in the data and the more recent data, particularly the work of Dr. Honts and our work with the U.S. Secret Service, indicate higher rates of accuracy.
Q Your work with the Secret Service. Are you referring to a 1988 unpublished study, is that what you mean when you say that?
A I am referring to a study that was done over a three-year period and the final report was written in 1988.
Q So then the answer to my question is "yes," you are referring to that study.
A I'm referring to that particular study, yes.
Q If you could take a look at the tables, do you see numbers that are substantially similar, both at the high end and the low end, over the course of table one and table two, that are comparable to Mendes?
A Are you talking about individual studies?
Q Yes.
A Or are you talking about the means?
Q Yes, absolutely.
A The individual studies?
Q And you see numbers that are as high as a hundred percent, which is greater than Mendes; and you see numbers as low as forty-nine percent, which is lower than Mendes, isn't that correct?
A There are a lot of different numbers in these tables, yes.
THE COURT: Where is the forty-nine?
MR. JALELIAN: Table two, Your Honor, "High Quality Field Studies, Weighted Means, Percentage, Correctness."
THE COURT: You're talking about page 1019 of the "North Dakota Law Review"?
MR. JALELIAN: Yes.
THE COURT: Where does it say forty-nine percent? Oh, I see, down at the bottom. Yes, all right, thank you.
Q Now, you had an opportunity, did you look at the statement by Louise Woodward before you gave her a polygraph?
A Her statement to the police?
Q Her statement to the police.
A Yes.
Q Now, I draw your attention to question eight: "On February 4th, 1997, did you hit or strike Matthew on the head?"
A Question eight?
Q Yes. I believe it's R-1.
A Question R-1, yes.
Q R-1. That's the question you asked, is that correct?
A Yes.
Q Now, in her statement, the defendant indicated, quote, that she "dropped the baby." You read that, isn't that correct?
MR. GOOD: What the police say that she said it. The statement is not Louise Woodward's statement, the statement is the police officer's statement.
THE COURT: Very well.
Q You are aware that the statement that she "dropped the baby," was attributed to the defendant.
A That's what the police report said.
Q You were aware of that statement, is that correct?
A That's what I read in the police report, yes.
Q Now, the question, "Did you hit or strike" does not include "drop," is that true?
A That's correct.
Q So if, in fact, the defendant dropped the baby, and you asked, "Did you hit or strike," the defendant could pass that question but still have dropped the baby, isn't that correct?
A I think that's unlikely.
Q Is it correct that it could have happened?
A Possible.
Q Thank you.
A But unlikely.
Q Thank you.
THE COURT: Just a minute. Are you telling me that, if you said to her, "Did you hit or strike Matthew on the head," and she, in fact, did not hit or strike him on the head, but she did drop him, that she would nonetheless fail that question?
THE WITNESS: She would be likely to have a reaction to that question if she was lying about having dropped him, and if he hit his head in this drop.
THE COURT: But you didn't ask that question, that's what's puzzling me. The question is not, "Did you hit, strike, or drop Matthew," the question is, "Did you hit or strike Matthew." And a person could have listened to that question carefully, conclude that the person had not hit or struck Matthew, and answer you, "No, I didn't," knowing all the while that the person had dropped Matthew.
THE WITNESS: I'm sorry, the question is, Your Honor?
THE COURT: The question is --
THE WITNESS: Why would she have a reaction to that?
THE COURT: No. The question is, would she be able to not have a reaction to it, that is, not have a deceptive-type reaction.
THE WITNESS: There is a possibility that she might not react to that if that is exactly what happened. But one has to interpret this in the context of the entire discussion, and what those questions mean, and what she's accused of. It is true that, if the allegation was specifically did she drop the baby on the head, and you didn't ask any other questions but that one, there may be a chance that she would not react to it. But that is not what typically happens in a polygraph test. People will, if asked a question directly related to the incident, and they're accused of something serious like injuring this child, even if you didn't ask it quite the correct way semantically, if they are lying about their involvement, and they're facing serious consequences, they usually will show strong reactions. And there are documented evidence of that even in the work of Professor Iacono.
THE COURT: It seems to me that there's a difference between saying, "Did you hit or strike Matthew on the head," which is very specific --
THE WITNESS: Yes.
THE COURT: -- and a question like, "Did anything bad happen with Matthew while you were taking care of him?"
THE WITNESS: Yes. And that's why question number four is there: "Did you deliberately inflict the injuries that resulted in his death?" Because that includes any possible way of injuring him.
THE COURT: No, it doesn't, Doctor, it includes only "deliberately."
THE WITNESS: Yes.
THE COURT: And that's one of the things that is causing me concern about these questions, and I don't mind saying so. The questions are very narrow and very specific. And because they are narrow and specific, they leave room for one to think that they give extra, that they afford a fair opportunity for somebody to answer the question accurately.
THE WITNESS: I understand your concern, Your Honor. And the reason they are that way is because, if you review the pre-test interview with Ms. Woodward, she had concerns about minor things that may have happened, such as when she placed the child on the floor while she was drying him, and whether she removed her hand from underneath his head, and his head may have dropped an inch or so.
And so to ask, you know, "If you dropped his head, or dropped him on his head," would not be able to distinguish between something minor like that, which was bothersome to her, and something serious, such as a serious injury. And that's why one has to interpret these questions in the context of the discussion, because there are extraneous factors that could confuse the result if that were not attended to. And that's why the questions are worded that way, to exclude those extraneous possibilities.
THE COURT: Can you ask a person on a polygraph examination a general question, "Tell us what happened," sort of question?
THE WITNESS: No, you can't, Your Honor, the questions must be answered just yes or no. Because once you ask somebody to give you narrative answers, just the process of composing answers and thinking causes reactions. It's a very delicate psychological situation.
THE COURT: All right, carry on.
MR. JALELIAN: Thank you.
Q You indicated that, in the pre-test interview with the defendant, she indicated some concern about "dropping the baby," is that correct?
A She indicated concern that when she was drying the child, or changing diapers -- I think it was drying him on the bathroom floor after a bath -- that his head may have accidentally bumped slightly against the floor, because she had her hand under his head, and then she removed her hand - and she wasn't even sure - and she thought there was a possibility that his head may have dropped an inch or so, the thickness of one's hand.
Q But you testified just now that she indicated to you some concern about the dropping issue, is that correct?
A In that sense that I just described.
Q That's right, yes. So you took that as part of your information in formulating the questions, isn't that correct?
A That has to be taken into consideration.
Q And you didn't ask, "Other than the towel incident, or putting the baby down, did you drop the baby?"
A That's correct, I did not --
Q That would have been a proper question, though, would it have not?
A It could have created other problems, because of her concern about the possibility that something even as slight as that might have caused harm. It's a sort of "Did you stop beating your wife" question.
Q Well, you asked, on relevant question number three, you asked, "Other than trying to arouse him, did you injure Matthew by forcibly shaking him?"
A Yes.
Q And that was in response to her having concern about waking him up, isn't that correct?
A That's correct.
Q But you did not ask, "Other than placing him on the bathroom floor, did you drop the baby," isn't that correct?
A That is correct.
Q You chose, in fact, to go with the question, "Did you hit or strike Matthew," rather than going down the, "Did you drop, other than what you've told me?"
A No, in fact I used relevant question two to deal with that: "Did you deliberately hit Matthew's head against a hard object or surface," which would include dropping him on the floor.
Q But it doesn't say anything about "dropping," does it?
A Excuse me.
Q Does it say anything about "dropping"?
A It does not use the word "drop," because dropping would be clearly included in hitting his head against a hard object or surface. That's exactly why I asked that question, "Did you drop the child on his head?"
THE COURT: Excuse me, Doctor. Are you suggesting to me that the word "deliberately" connotes dropping? Or, put another way, that you can drop somebody deliberately in this context?
THE WITNESS: Yes, as opposed to lifting her hand up from underneath his head, and his head went "boomp" down on the floor an inch. That was the distinction that was made there, that that was an inadvertent thing, if it did happen - and she wasn't sure - as opposed to, if you take a child and you drop the child on its head, then that's a fairly deliberate act. And if you did that, and you injured the child that way, even if you didn't put the word "deliberately" in there, she would have failed that question clearly, because it goes to the very heart of the issue of causing the injuries and knowing how the injuries were caused.
THE COURT: What's wrong with her failing, from your standpoint as the detached examiner, what's wrong with her failing the question?
THE WITNESS: There's nothing wrong with it if that's what happened, but that's not what happened. If she failed it, Your Honor, I wouldn't be here today.
Q Why wouldn't you ask the question then if it gets to the heart of the matter?
A I did ask the question.
Q You just indicated that you didn't ask the question, that she would fail miserably.
A I did, but I was talking about question number two, "if you dropped the child on his head," she would have failed that question.
Q You just stated that you "know" what happened. How do you know what happened?
A I don't know what happened.
Q You just testified that you know what happened, you said, "That's not what happened here."
A On the polygraph.
Q Oh, I understand.
A Had she failed the question - that was his Honor's question --
Q I understand, thank you.
A -- would I have had a concern? No, that's what I would have reported.
Q Now, did you indicate -- are you familiar with the concept of polygraph test acts, such as, "Did you shoot," physical acts?
A Does the polygraph test those things?
Q Yes.
A That is one thing that the polygraph can test, yes.
Q Is that the most accurate type of question to ask and get a response on, which are actions?
A It's the simplest way to frame questions when that is the situation.
Q Are you familiar with -- you're familiar with the training of the Secret Service, isn't that correct?
A I have trained the Secret Service a lot myself.
Q And do you train them to act, to use action verbs with actions, like "shoot," "stab," rather than "harm," "Did you intend to harm"?
A Yes, when it's possible.
Q And you're aware that the word "deliberately" implies a level of intent, isn't that true, as opposed to "accidental"?
A Yes, it implies certain things based upon, depending upon what the context is and how it was discussed.
Q Well, the word "deliberately" is not an action verb like "shoot"; it's an intention, like as opposed to --
THE COURT: It's not a verb.
MR. JALELIAN: I'm sorry, thank you.
A It's an adverb.
Q Could you answer my question, please?
A I'm sorry, I didn't think you finished.
Q The word "deliberately" is not an action verb, isn't that correct, like "shoot"?
A "Deliberate" is not a verb, yes.
Q And when you ask the question, "Did you deliberately do X," you're asking a question about the intention of the person.
A You're qualifying the answer.
Q Whether or not they formed a specific mental decision to do an act, isn't that correct?
A No, whether they did it in a deliberate manner, as opposed to it just happening.
Q Well, a "deliberate manner" meaning a decision was made.
A Possibly, but certainly --
Q Well, how would you define "deliberate"?
A -- a description of the act is one of engaging in a specific action that results in something, and obviously when that happens, it's deliberate, as opposed to something happening that's not part of your act.
Q How do you define "deliberate"?
A Doing it yourself, as opposed to just having it happen accidentally.
Q So making a decision and carrying out that decision.
A No, not -- the decision process, you're putting something in the person's head that you don't know is there. People do things and they engage in acts. Other things happen that don't involve acts on the part of the individual.
Q And those are accidents, isn't that correct?
A That's correct.
Q If it's not an accident, it's a deliberate act.
A No, if it's not an accident, it's deliberate; you just defined it. That's exactly what that word means, to exclude accident.
Q Doesn't it mean more than that? Do you know the legal definition of "deliberation"?
A I only know the English definition.
Q Do you know whether or not it's required to have the mental process occur before the act with an act of deliberation?
A As a psychologist, I don't believe it's necessary, no.
Q You don't need to make a decision before you act to have it deliberate.
A No, a lot of people make actions without thinking it through carefully, as you know, and you end up prosecuting people who do acts that they say, "I never even thought about it," but they may be guilty of the crime anyway.
Q Sir, are you in the habit of including legal terms in your polygraph questions?
A I try to avoid it.
MR. GOOD: Objection, Your Honor. Could I just make the point that Louise Woodward doesn't know the legal term, Your Honor. The question is not what Dr. Raskin knows, the question is what Louise Woodward knows about the word.
MR. JALELIAN: No, it isn't, Your Honor. The question is what this individual did when he fashioned this test, and if this test is a proper test.
THE COURT: Define "deliberately" as you used it.
THE WITNESS: You're asking me to --
THE COURT: Define the word "deliberately" as you used it twice in these questions.
THE WITNESS: Yes. "Deliberately" means an action in which you engaged specifically, as opposed to something happening accidentally that was not part of your action as far as you knew.
THE COURT: In fairness, Doctor, I really don't think you mean that. Just engaging in something means that you're doing it deliberately?
THE WITNESS: That you specifically engaged in that act, as opposed to something happening that might be associated with something you do that was not a result of what you were attempting to do.
THE COURT: Well, does the word "deliberately" in the context in which you use it -- put another way, does your definition of "deliberately," as you used the word, mean on purpose, intentionally, something similar; or does it mean something else?
THE WITNESS: Well, I think it implies that certainly, but it --
THE COURT: It "implies" it?
THE WITNESS: Yes.
THE COURT: What else does it mean in your use of it?
THE WITNESS: It means a series of coordinated acts that are done for some purpose. So if she were drying the baby, she was deliberately doing that; that was what she was attempting to engage in. If the baby's head dropped in that process, then that's not deliberate, like as she described it.
However, if she took the child and banged his head against the floor, by taking him and banging his head against the floor, that's a deliberate act.
Q Isn't that exactly why, Doctor, that you asked the question, "Did you bang the head against the floor," rather than saying, "Did you deliberately bang the head against the floor"?
A No, that is not, because that confuses the two things that I just attempted to distinguish, and that was the problem in this test and those had to be separated. If, in fact, it happened the way she thought it might have happened - and she wasn't even sure that happened - then if I asked it the way you suggested it, she would not be able to answer it "no." She would have to say, "Well, I think maybe his head may have dropped an inch." And I had to say that's not what we're talking about.
Q And then could you not have fashioned the next question, "Other than what you just discussed to me, did you do the act"? Why you couldn't do that in a question, you did that on number --
A You had raised the same --
THE COURT: One question at a time. And I know that it's because we're so close to lunch hour that you're asking so many questions all at once. So let's take a break for lunch, and we are, I assume, gentlemen and lady, going to be able to put Dr. Raskin on his plane by the end of the day today.
MR. JALELIAN: Yes.
MR. GOOD: I hope to have an opportunity to redirect. I don't know how much longer you'll be.
MR. JALELIAN: Not that much longer.
THE COURT: All right, thank you very much. See you at two o'clock.
(Lunch Recess.)
CONTINUE DR. RASKIN'S TESTIMONY
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