Dr. Raskin's Testimony Continued

THE COURT: All right, Dr. Raskin, I just remind you you're under oath. You may continue cross-examination.

MR. JALELIAN: Thank you, Your Honor.

Q When you gave Louise Woodward the exam, you gave it to her at the Framingham prison, is that correct?

A Yes.

Q And you went into a room. What was the size of the room?

A I would estimate it was about twelve by fifteen maybe.

Q Who was present in the room?

A Ms. Woodward and myself.

Q Anyone else?

A No.

Q Was there any corrections officers?

A Inside the room?

Q Yes. Were they in the next room?

A Yes.

Q Who was available at the -- who else was in that next room?

A Well, the adjoining area is not exactly a room, it's a sort of an area where one can circulate, and it was next to the door that went into the area. And then there was another room that was some distance from the room I was in with a, you know, it's like a circulation area. I was in one room, then there was a space, then there's another room across from there that was out of sight.

Q Where were the corrections officers?

A Well, the only one I know would be the one that I could see through the window or sometimes hear that would have been circulating near that room. There may have been others going in and out, but I wasn't paying attention.

Q Did anybody enter or leave the room during the course of the examination?

A Not that I can recall.

Q I'm sorry?

A Not that I can recall.

Q But that would have been significant in the course of the examination, would it not?

A I certainly would have made note of it, and if it interrupted at the wrong time it would have been very significant, but it didn't happen.

Q And was Attorney Good at the correctional facility when you were there?

A Yes.

Q Was anyone else from the defense team there?

A Mr. Silverglate was also there.

Q Anyone else?

A No.

Q And where were they relative to you before the test?

A Before the test? Well, we all came in together.

Q And where were they during the test?

A In that other room that I described in this, separated from where I was by some large circulation area.

Q When I say "test," I mean pretest, test, and those types of things.

A The whole thing, the examination would be the best term.

Q And did you have any consultations with either Mr. Good or Mr. Silverglate before you gave the test?

A Yes.

Q And how much consultation did you have, in terms of meetings or phone conversations?

A Well, I had some phone conversation prior to my coming down. I had conversation after I arrived in Boston. I can't tell you the exact duration of those, but I might have something to indicate roughly, if you'd like me to look.

Q Just generally. What you're looking at, is that a ledger of your expenses?

A Well, it's time. I probably had a couple hours consultation at least. We drove out together to the prison and discussed the case also on the way out there.

Q But at some point they gave you that package, is that correct?

A That was sent to me prior to my coming there.

Q Okay. And do you charge by the hour or by the case?

A I charge generally by the hour. But if I travel out of town, and I have to spend full days working, I charge by the day.

Q What do you charge by the day?

A Three thousand dollars a day.

Q Three thousand dollars a day. And is that for out-of-court testimony, or out-of-court activity, or in court?

A It doesn't matter to me. If I have to spend a full day, like presumably this is a full day, actually working, then that would be regardless of whether it's in court or doing tests or whatever.

Q And approximately how many days have you spent on this case?

A One, two, three, maybe four.

Q And when you consulted with the defendant's counsels, did you have any consultations prior to the administration of the test as to what the questions on the test would be?

A We did discuss that, yes.

Q Did you discuss them specifically? Did you go over specific test questions, rather specific relevant test questions?

A We went over drafts of questions as I recall.

Q And was there any effort made to include in questions both, first questions that were absolute, you did or did not commit the crime?

A There is a question like that, yes.

Q Okay. Were there also questions designed so that the response could negate the level of guilt, rather than first-degree murder, second-degree murder, or questions designed in terms of deliberation?

A Absolutely not.

Q Was that even discussed?

A No.

Q Now, you're familiar with countermeasures?

A Yes.

Q The term "countermeasures," both physical and mental countermeasures?

A Yes, I've done the surveys.

Q And included in one of the 1988 study -- I'm sorry, not a 1988 study -- a study that you've done recently includes physical and mental countermeasures, is that correct?

A Yes.

Q And in that study, you did that with Dr. Honts?

A It was Dr. Honts' doctoral dissertation.

Q It was Dr. Honts' doctoral dissertation?

A Yes. I assume that that's the one you're referring to.

Q I believe so. It's entitled, "Physical and Mental Countermeasures."

A The 1994 "Journal of Applied Psychology" article?

Q Yes, that's correct.

A Yes.

Q And that was a doctoral dissertation, and you supervised him?

A Yes.

Q And so you oversaw both the research and the writing of that, true?

A I had to approve all of it.

Q And was Dr. Kircher also involved?

A Yes.

Q Is he one of your students, or was?

A He's a former student. He's on the faculty at the University of Utah in the Ed. Psych. Department.

Q Now, with physical countermeasures, that study determines that there's a failure to detect physical countermeasures eighty-two percent of the time, is that correct?

A Eighty-two percent of the time? I don't believe that's correct.

Q Would Dr. Honts have a better idea of whether or not that was correct?

A The publication would indicate exactly whether it's correct.

Q That wasn't my question, sir. Would Dr. Honts have a better idea than you as to whether or not that is correct?

A I don't think he has a "better idea." If he says it was eight-two percent, I would disagree, but I don't believe that's the correct number, if we're talking about the same study.

Q And would you agree that with mental countermeasures, there was an inability to detect mental countermeasures a hundred percent of the time?

A Not in that study, no.

Q Is that the same study where forty-seven and a half percent of the population beat the polygraph?

A Yes, so it couldn't be the numbers you said because those don't come to forty-seven percent.

Q No, I'm talking about detecting. The two numbers that I just specified were the detection by the examiner, not in the success rates for beating it.

A Well, you're confusing me, Mr. Jalelian. If what you're talking about is the percentage of errors, which is what I assumed you were talking about --

Q That's not what I'm talking about.

A Oh, well then, you're confusing me.

Q I'm sorry to confuse you. With physical countermeasures --

A Yes.

Q -- the percentage of ability by examiners to detect physical countermeasures was eighty-two percent.

A Oh, I misunderstood you, I'm sorry, I thought you were talking about detecting subjects. I misunderstood.

The inability of them to actually identify which subjects were using countermeasures, both?

Q Yes.

A Then the numbers are correct.

Q So physical is eighty-two percent, mental is one hundred percent.

A Yes, there's no way to detect mental countermeasures.

Q And fifty percent, a little less than fifty percent of the population of that study, beat the polygraph.

A Yes.

Q And those individuals were taught physical countermeasures for no longer than thirty minutes. That was the maximum time, is that correct?

A Yes, unless somehow we made an error, but that's my understanding, that's what it says in the study, right, that was used the maximum amount of time.

Q Thank you.

Now, when you -- you follow certain guidelines when you administer a polygraph test, is that correct?

A Yes.

Q And the test that you use is different from the directed-lie test that's used by the Federal Government, isn't that correct, in terms of scoring?

A I don't believe so in any fundamental way.

Q Is it exactly the same?

A Well, there are variations in their scoring procedures in general compared to ours, although I think ours are now very similar to theirs.

Q Well, isn't it true that at some point you came up with your own scoring method that was independent; you invented your own scoring method.

A No, we didn't "invent" the scoring method.

Q When you say "we," who do you mean?

A Well, you said "you," so --

Q "You," I'm talking about you as opposed --

A Well, all of this work is a collaborative effort; I don't do any of it just myself. I have graduate students, I have associates and colleagues. And so I always say "we," because we all work on this thing together.

Q Have you personally, or anyone within your group at the University of Utah, ever invented any type of new scoring method?

A Well, the computer approach is something that was developed in my laboratory with Dr. Kircher.

Q You've had an opportunity to read Professor Honts' affidavit, haven't you?

A Yes.

Q And did you notice that he indicated that the method used by you to score is similar to the directed-lie method used by the federal agencies that he refers to earlier in the affidavit?

A Well, I think that's where the confusion is. It's similar to the method they used to evaluate polygraphs, whether it be directed lie or a probable lie.

Q But it's not the same, is that correct?

A Right, it's not identical, no.

Q And there could be variations between methods of scoring, isn't that true?

A Yes, although the results are essentially the same.

Q Well, but isn't it true that when an examiner scores a test, it's a very subjective score when you look at the graphs?

A No, it is not.

Q It's a purely objective method of scoring?

A No, it is not absolutely objective either. It is primarily objective, yet it's extremely reliable which indicates that it's objective.

Q That's not what I asked you. Is it subjective based on the examiner?

A No, it is not subjective. It is --

Q So one examiner must --

A May I explain my answer? Maybe it'll be quicker.

Q No, it was a yes-or-no question.

One examiner will score a test one way, and another examiner may score the test a different way and call it a different score, isn't that true?

A Well, there are two questions there, one is the scoring and the way it's scored. They may use different methods. If they use different methods, they might produce different scores. If they use the same methods, there might be a slight variation in the scores. Even the same examiner might have a slight variation. But they are not substantially different, they're highly reliable, and the evidence indicates that they are primarily objective.

Q Sir, you looked at the charts in Louise Woodward's exam, is that correct?

A Yes.

Q And you scored it.

A Yes, I did.

Q And then Dr. Honts looked at it.

A Yes.

Q And then he scored it.

A Yes.

Q And there is certainly a subjective element when you have two different individuals scoring two different graphs, isn't that true?

A They have to make some judgments.

THE COURT: Well, is it subjective or not?

THE WITNESS: Well, judgments are subjective, but they are primarily objective using the set of rules, just as scoring an intelligence test is primarily objective but people have to decide whether it's a one or a two score based on a set of rules.

Q So certainly it's possible for one person to score a plus one, let's say, and another person to score plus two on the same reaction.

A That's possible, yes, because there are choices.

Q Based on -- that's fine.

Now, the guidelines that you follow when you're doing the same test, every test you give you follow it generally the same way, or is there an exact protocol that you follow?

A In terms of scoring or the administration?

A Well, let's talk about the administration first.

A Do I use the same protocol?

Q Yes, do you have a check list?

A Yes. Well, I don't need a check list, I've done it so many times. I have materials I use, but it's standard procedure.

Q Did you ever have a check list?

A I might have when I was in training, or when I was relatively inexperienced, I'm sure. I remember now I made one.

Q Do you think a check list might be helpful for anyone?

A For a training device, yes.

Q But not as a practical device to standardize the process.

A When you've done it a thousand times, it's not necessary.

Q However, everyone has not done it a thousand times, isn't that true?

A That's why I said --

THE COURT: Have you conducted a thousand of these examinations?

THE WITNESS: Yes, Your Honor, about, well, nine hundred and seventy-five in my log, and probably some others in the lab.

Q You've conducted that many?

A Yes.

Q Nine hundred and seventy?

A Nine hundred seventy-five I think is the last number of actual criminal cases, plus quite a few more.

Q And that's the number, when you say "conducted," you mean actually having an individual in your presence hooked up to the machine.

A Conducting a polygraph examination myself with a subject, the whole procedure, and an actual case.

Q Now, you have a polygraph examination information sheet, isn't that correct?

A Yes.

Q But you don't have -- and you have a rights sheet.

A I'm sorry, a what?

Q A statement of consent for a polygraph examination?

A Yes, I mean those are part of my outline of the exam; I have to fill them out.

Q But a check list is not.

A Well, in a sense that's a partial check list. The rest of the procedure doesn't require a check list.

Q For you.

A Yes, and for most examiners.

Q But you can't speak for "most examiners," you can only speak for yourself.

THE COURT: No, no, don't argue with the witness.

Q Now, part of your check list you followed the New Mexico guidelines, is that true?

A Well, I'm not sure what you mean.

Q The New Mexico guidelines?

A What I do is completely consistent with the New Mexico Rule of Evidence which I have to follow.

THE COURT: Well, am I correct in understanding that New Mexico is the only state that has authorized, unqualifiedly authorized the polygraph?

MR. JALELIAN: That's my understanding, Your Honor.

THE COURT: Is that your understanding too, Doctor?

MR. JALELIAN: Yes, Your Honor.

Q And, in fact, there is a rule of evidence that facilitates the standardization process.

A No, the rule of evidence is there to set requirements for its admissibility in court.

Q And part of that is that there is either an audio tape or a video tape that's required?

A Some form of tape recording.

Q And if you had your choice of the two in a perfect world, would you want an audio tape or a video tape?

A For me, the audio tape is totally sufficient.

Q "Sufficient."

A Yes.

Q Is it better to have a video tape?

A Not necessarily, because then camera angles have to be taken into account, and it doesn't really supply a great deal of useful information. It's also a distraction for the subject to have a camera pointed at them.

Q But it's not a distraction in your experience to have an audio tape recorder?

A That's correct.

Q A video tape would give the ability of other individuals who are examining that video tape, the time and opportunity to observe the subject while the test was going on, isn't that correct?

A That is correct.

Q And it would frankly just put another person in the examination room at the time.

A Well, the audio tape does that, too, except it doesn't give a visual image.

Q But a visual image would aid in the informational-gathering process, would it not?

A There's no evidence to indicate that.

Q That a video tape wouldn't aid informational gathering?

A Not for the purposes of this kind of an examination.

Q Would it in any purposes?

A Yes. And we've done that in the laboratory under a specific purpose, where we're trying to assess whether or not one can analyze video tapes for behavioral indicators that is a question of scientific interest but not part of the polygraph exam.

Q Now, when you, when you administer a test, you are aware that physical and mental countermeasures could be used, is that correct?

A Yes.

Q And a video tape would record better than an audio tape physical countermeasures, wouldn't it?

A No, it would not because physical countermeasures that are observable are observable not only by the examiner, but show up clearly as artifact on the polygraph recordings. It is very sensitive to physical movement.

Q Despite the fact that forty-nine percent beat a polygraph when a hundred percent of the undetectable mental countermeasures?

A Well, that's exactly the point: They're undetectable when they're performed properly. So that procedure, that requires training. And what you're suggesting is a situation without training, and where you're saying that you could see it with a video. Well, if you could see it with a video, it's going to be ineffective.

Q You certainly can't see it with the audio tape, though, can you?

A No, but you don't need to see it, the audio tape or the video. Because if they're not effectively trained to be unobtrusive and unobservable, then it will show up clearly on the polygraph recordings.

Q Did you have any conversation with Louise Woodward about her knowledge of the polygraph?

A I don't recall a specific conversation, other than to ask her if she had ever had a polygraph examination before.

Q And that was the only source of information about the proficiency or knowledge of the polygraph that Louise Woodward had, was from Louise Woodward, is that correct?

A Yes, there were no other sources of information out there, and I'd be very surprised if she knew anything.

Q I didn't -- but you have no idea, is that fair to say, other than her response to, "No, I've never taken a polygraph"?

A Oh, no, I have an idea. My idea is that she has never --

Q Is that based on any personal knowledge?

A That's based on my interaction with her, and based upon the sources of information she would have available.

Q What scientific evidence do you have?

A Scientific? I don't have scientific evidence, it's not a scientific question.

Q What physical evidence do you have?

A It's not a physical question.

Q So it's just based on your interaction with her to that one response, is that correct?

A That, plus all of the information we have over the years of research that we've done with a cross section of the community of people who have taken polygraphs and the kinds of information that they have.

Q How much information refers to nineteen-year-old British nationals?

A Well, I wouldn't say that we had a lot of nineteen-year-old British nationals in our studies, but we've probably had one or two.

Q Which study?

A Well, we've done hundreds and hundreds of studies.

Q And which studies have you had British nationals in?

A That's why I say I would say "probably," but I couldn't tell you.

Q So you don't know.

A It's not important.

Q It's not important.

A No.

Q When you're dealing with a specific example of a specific test and the results, it's not important to you to know whether or not you've had prior individuals who have had the same background and experience as the person that you're testing in the instant case, that's not important.

A No, relevant background and experience. Being a British national is not the probative issue. It's knowledge of the polygraph that is.

Q Now, you prepared an audio tape of your entire interaction, is that correct, with the defendant?

A I made an audio tape, yes.

Q Now, did you turn the audio tape machine off at any point during the course?

A Only to flip the cassette over.

Q But you never paused it or stopped it.

A No.

Q And so far as you know, the audio tape that you provided to Mr. Good is full and complete with no edits.

A There are no edits. There are, as I understand it, on the second side in the later part of the test, there were some distortions because of the way the cassette was functioning in the tape recorder. But there are no "edits."

Q And then are you aware of whether or not a transcript was made?

A I understand there's a transcript, yes.

Q Do you have a copy of that transcript?

A I believe I have one, yes.

Q May I see it, please.

MR. GOOD: Your Honor, this is a transcript that my office prepared. We would take the position that it's work product. It's not prepared by a stenographer, it's just the secretary trying to write down what she heard on the tape as best she could.

THE COURT: Well, it was apparent that the witness utilized the transcript. I will not order you to produce it. But I will tell you in fairness I will take into account in evaluating this witness' testimony that I have not seen the transcript. It's up to you to decide.

MR. GOOD: What I'm saying to the Court is that I don't know what you mean by "used it." Dr. Raskin has a copy. I don't know what you mean by "used it."

THE COURT: In his testimony to me, he indicated that, in evaluating, that is, that in preparing his testimony for today, or put another way, in the course of preparing himself for testimony today, he reviewed the transcript. Now, you don't have to show it to the District Attorney, and you don't have to show it to the Court. Whether it would be of assistance to the Court in evaluating the witness' testimony is something for you to decide.

MR. GOOD: Very well, Your Honor. May I reserve judgment on that momentarily?

THE COURT: Certainly.

MR. GOOD: Thank you.

THE COURT: I suggest that, as long as Dr. Raskin is here, that we mark the transcript with a letter for identification, and then you can hang onto it.

MR. GOOD: Very well, Your Honor.

THE COURT: We'll mark it A for Identification, please. And the record will then reflect that it's been given to Mr. Good.

THE WITNESS: I believe it's in my briefcase, Your Honor, if I can check.

THE CLERK: For the record, may I count the pages, Your Honor?

THE COURT: Yes.

MR. JALELIAN: Your Honor, for the purposes of the record, I have a copy of the audio tape which I have attempted to listen to, but I couldn't.

THE COURT: Oh, you have a copy of the tape?

MR. JALELIAN: I couldn't hear it.

MR. GOOD: They have the tape.

MR. JALELIAN: It's inaudible to me, I couldn't hear it.

MR. GOOD: He's saying he couldn't make it out very well.

MR. JALELIAN: I can't make it out at all.

THE COURT: Well, giving a tape to somebody that can't be heard is, in a literal sense "keeping the word of promise to the ear," so to speak, "and breaking it to the hope."

MR. GOOD: Your Honor, the tape is the tape. There's air conditioning systems going on in the prison. It's not a terrific tape. But it's the best, it's all there is. We spent the effort of trying to make a transcript out of it.

THE COURT: Well, it may be marked and sealed and given back to Mr. Good.

MR. JALELIAN: Your Honor, also for the record, my recollection is that Professor Honts did not listen to the tape, but did review the transcript as an independent evaluation.

THE CLERK: It's twenty-four pages, Your Honor, and it's been sealed.

THE COURT: Thank you.

MR. JALELIAN: Thank you.

Q During the course of --

THE COURT: Just a minute. All right, the record will reflect that it's been given to Mr. Good and we can proceed.

Q During the course of your examination, you had conversations with the defendant, isn't that true?

A That's correct.

Q What did the defendant say?

A She told me her recollection of the events.

Q What did she say?

A Do you want me to start right from the beginning?

Q Yes, from the first words that she said to you.

A Oh, I can't remember them verbatim obviously, it was a long interaction, but I'll do the best I can.

She told me that she was caring for Matthew Eappen. She told me that on the morning in question, the day in question, Matthew was acting strangely early in the morning, and that he was "out of sorts," I think maybe was the expression that she used. That Matthew's mother was concerned because he didn't seem to want to eat. And he was not his usual self, that he was sort of cranky, and somewhat difficult to manage because of that. That she was asked by the mother to do some things, try to feed him - I can't remember what it was exactly - maybe some cereal. That she was to give him a bath, as I recall.

She also told me that his older brother, I believe his name is Brandon, was present, and he was in her care. That both parents were working that day. That they went off to work. That Matthew was acting unusually from the beginning of her interaction with him on that day and throughout that day. That I recall she told me at some point she did feed him some food, although he wasn't eating well, I think she said. And at one point, he regurgitated some food, and she was concerned because he seemed to be acting strangely, and she thought he might be choking on the food, and she had cleared his mouth and maybe throat area with her finger, for fear that there was food caught in there. And I think she also told me that Matthew's mother had indicated to her at some point, had given her an instruction about doing things like that in case there was that type of a problem.

She told me about bathing him, and also about changing his diaper, which I think the diaper-changing took place perhaps in the bedroom, and bathing him, and then redressing him and drying him. The drying him anyway took place in the bathroom on the bathroom floor. That he was placed on a mat, as I recall, on the floor.

I remember she said at some point he appeared to be having difficulty breathing. It may have been at the point where she cleared his mouth and his throat because she felt some food may have been stuck in there. I think she also talked about holding him and patting him, or something like that, as one would with a child that might be in that kind of distress. That he was cranky. I think she said he slept a little bit, or was sort of sleepy and less active than usual. She told me basically, I guess, that she was concerned about that, and the mother had expressed concern.

She told me that at some point she became very concerned because I think she said his eyes looked funny, and he appeared not to be breathing properly. And that she thought he was maybe not in a normal state of consciousness, to use my words, I can't remember how she put it exactly. And that she, in holding him, and she demonstrated to me, she sort of moved him somewhat to try to arouse him. I think maybe she used the word "clapped him," which I think in the English vernacular would be to pat him, or give him like a little spank or something, as one would do to try to arouse a child (demonstrating).

MR. JALELIAN: Your Honor, I'd just like the record to reflect that the witness put his hands out in front of him about the neck level, with both his palms towards each other, and then moved his hands back and forth in a shaking manner.

THE COURT: All right.

A Yes. In fact, she described specifically that she was holding him, and she had her hands, as I recall, around his chest, maybe near his armpits, and she was holding him and moving him up and down a little bit to try to arouse him. And we had some detailed discussion about that.

Q What was that "detailed discussion"?

A Well, the extent of it. And we talked about it in detail. And she said that she didn't do it forcibly, she did it just enough to see if he would like start breathing properly again, and arouse him. We talked about whether that was a forcible shaking or just simply for that purpose, and she said it was relatively mild, and just simply for that purpose.

She told me that at some point, and I can't remember exactly how it happened, that she realized that he was in some kind of serious distress. That she tried to call the parents, I think she told me she tried twice to reach the father, and ultimately ended up calling 911 to get help because the child appeared not to be functioning properly. I can't remember exactly how she put it.

The police came and she talked with the police. Then we had some discussion about what the police said she said, and she said something to the extent that she didn't quite say that, what they reported was not quite correct.

We talked about the issue of his head possibly hitting the floor, and that's when we got into a detailed discussion, where she said, as I described earlier in my testimony, that when he was lying on the floor, where she had placed him to dry him, or put his clothes on after the bath, something like that, that at one point she had her hand, she thinks - and she wasn't exactly clear as to whether this even happened at all - but that she had her hand under his head. And she thinks that she moved her hand out from underneath his head, and his head may have fallen, whatever the distance is of the thickness of her hand, approximately, from where it was to the mat on the floor. I think she stated that, although it was a ceramic floor, there was actually a mat on which he was placed.

I think she told me that, something to the effect that the police had interpreted that as her saying she banged his hand. And she said that's not what she said, something to that effect.

And then we got into a discussion of questions following that description, to try to make the questions fit both the allegations and also her version of it so it would be covered from both sides.

Q And it was after that conversation that you decided to ask the question, all of the questions, including the question, "Other than trying to arouse him on February 4th, 1997, did you injure Matthew by forcibly shaking him," is that correct?

A Yes.

Q Now, you asked that question because you had had some conversations with Louise Woodward, where she indicated that that might have been a problem on one incident. So you said, "Other than that one incident of forcibly shaking, other than trying to arouse him, did you forcibly shake him?" So that you could eliminate the concern she had, is that correct?

A That's an awfully long question, Mr. Jalelian, I'll try to answer it the best I can.

Q Let me rephrase it.

After you had the conversation with her, you became aware that she had certain concerns about certain activity that took place at the time which later became the alleged incident, is that correct?

A She expressed a concern to me that, if the observed injuries were the result of something she did, she was concerned that even something relatively minor, as she described, that there's the possibility that that was the cause of it, and that's why we discussed in detail what the nature of that was.

Q And that's the shaking by trying to arouse, is that what that, other than trying to arouse?

A Yes. And that was specifically because she gave a very detailed and graphic description stating that's exactly what she did. And so from her description, one had to take into account --

Q That previous --

A -- that, because the way she described it would not, in normal circumstances, produce such injuries, to distinguish that from something which would be a forcible shaking, such as a Shaken Baby Syndrome, which would be likely to produce those injuries.

Q And then she also had some concerns about his head on the bathroom floor, is that correct?

A Well, she had concerns because of the conversation with the police where, as I recall it, it was her understanding that they said she dropped him on his head. And the only thing she could think of was the possibility of what she described to me, but she said she wasn't even sure that that happened. She just remembers that he was on the floor, she was drying him, and her hand might have been under her head, his head rather, and that she might have pulled her hand out that way. As I recall it, she expressed uncertainty about whether his head even dropped that small amount and hit the floor.

Q And it's for that reason that you didn't concern yourself with putting in a type of question like, "Other than him hitting the floor in the bathroom, did you hit Matthew's head against a hard object"?

A Oh, I did "concern" myself, but I could not put that in there because she was not even certain whether or not that happened. So to ask her about something that she wasn't even sure that happened, invites thought processes that provoke reactions that could provide a misleading result. And that's why that was not distinguished in that way because it was not a sensible thing in terms of her being able to say unequivocally take a position did that happen or not.

Q Did she ever indicate to you that she had tossed him on the bed at any point? Does that phrase ring a bell?

A She might have said something like that, when she was changing his clothes, that she sort of put him up on the bed some way, and she might have --

Q Do you recall --

A I don't recall that term "tossed." If she did, I think she used it loosely to me, that she just set him up there quickly.

Q And did she also ever indicate to you that she handled him, quote, "a little rough"?

A Yes, she said that it was a little rough because he was acting in a way, you know, it was difficult to handle him because of his condition.

Q And the dropping on the floor she addressed with the bathroom, you already addressed that, she said that to you.

A I'm sorry, I didn't understand.

Q She said that she may have dropped him on the floor, but she wasn't sure.

A No, she didn't say she "dropped him on the floor." She described having him on the floor while she was drying him, and that he was lying on the floor, and possibly her hand was underneath his head at one point supporting it while she was drying him or changing his clothes, whatever the activity was. And that she may have removed her hand and his head may have dropped a little bit. But that was not described as "dropping him on the floor." And I think there was possibly some discussion about the confusion between what the police said that she said, and what she said she told the police. But that was her description of what happened with her hand.

Q Did she indicate to you that he fell at any point, the word "fall"?

A I don't recall her describing a fall on that day. I'm trying to remember whether there was a discussion about a possible fall on an earlier day, and whether she told me that or I heard it from another source.

Q So you don't recall her saying anything about a fall.

A I'd have to look at the transcript. But I don't believe she told me anything about a fall on that day.

Q And she never said anything about the older brother doing any acts, or anything that would harm the baby, did she?

A I don't recall her saying it. I think she might have said there was a time when she had to get something, and maybe the child was out of her vision, I can't remember, like when she was changing diapers.

Q But my question was, did she say anything that the older brother --

A I was going to address that. And I can't remember whether she said she wasn't watching both of them at the same time, or something like that. But she didn't make a specific statement that I recall that the older brother did something specific. I don't recall.

Q Was the older brother even mentioned in the course of the interview?

A I think, yes, she did mention the older brother being that, and that -- I think she probably told me that he was obviously more active than the nine-month-old because he was, as I recall, three and something like that.

Q If you can recall. If you can't recall --

A It was of no significance to me, and I just don't remember.

Q And other than the transcript that has been discussed in the last ten minutes, the only thing that's been reduced to writing about the interview, the portion of the test and the test itself, is this two-page document, is that correct?

A Yes.

Q Thank you. Do you have more confidence in a photograph --

MR. GOOD: Your Honor, before he goes on, I've made the decision to provide this to the Commonwealth, the transcript. Thank you.

THE COURT: That's Exhibit A?

MR. GOOD: Yes, Your Honor.

Q Do you have -- you stated you have confidence in a polygraph that's been administered, where an innocent, a person is determined to be truthful, has been offered by a defendant, is that correct?

A Did I state that today?

Q Well, do you have that belief?

A That's certainly my opinion.

Q Do you share the same level of confidence in a polygraph that has been administered by a government agency - a prosecution, for example - where a defendant has failed?

A No, regardless of who administers it.

Q So you have less confidence in failures than you do in passes.

A Yes, the scientific evidence clearly indicates that's the proper inference.

Q So the scientific evidence indicates that the test is only good for a specific purpose when offered by a specific side in a criminal prosecution.

A No, that's at all what I said. I think that's a gross misinterpretation of what I said. In fact, I have testified on tests that were deceptive on individuals for prosecutors --

Q For their admissibility?

A -- in front of juries and for admissibility, yes.

Q How many times have you testified for a guilty-failed on behalf of the prosecution in front of a jury?

A I can't say "guilty," that's not my task. A failure in the guilt phase, but I would not say the person's guilty or innocent.

Q When you say "a guilt phase," in the court, not a sentencing phase.

A No, in the determination of guilt or innocence, the trial.

Q And how many times have you testified for a failure, on behalf of a failure of a defendant in a criminal prosecution when called by the Government?

A I'll just have to give you an estimate --

Q That's fine.

A -- because it covers many years. But I would say somewhere between eight and a dozen times, mostly on homicide cases.

Q And how many times have you testified to the mirror image of that, similar to today?

A Probably thirty, forty times. No, not similar to today, I'm talking about in a trial itself.

THE COURT: Yes, that's what we're talking about.

A Yes, not like today's hearing.

Q That's correct. On behalf of a defendant who has passed.

A Possibly thirty or forty times, in that range.

MR. JALELIAN: May I have a moment, Your Honor?

THE COURT: Yes.

Q Would you find it unusual for someone to examine a test, a Commonwealth expert, say, and find a different interpretation of a test, in effect, to find a failure on a test that you have passed someone?

A That could happen.

Q Would it be unusual?

A I'm not sure what you mean by "unusual."

Q Out of the ordinary.

THE COURT: More than one in ten.

THE WITNESS: Pardon me?

THE COURT: More than one in ten.

A I don't think that's happened in more than one in ten cases that I've done. It happens sometimes.

Q It happened in the Mark Woodward case, isn't that true?

A The Mark Woodward case?

Q The so-called "Mormon bombings"?

A Mark Woodward?

MR. GOOD: Hoffman.

Q Mark Hoffman, I apologize.

A I did not conduct that examination.

Q Professor Honts conducted that, isn't that true?

A That's correct.

Q And you independently verified that.

A Yes, and so did law enforcement examiners.

Q My question is, did you independently verify it?

A Yes.

Q And you passed Mr. Hoffman, did you not?

A I scored the charts as truthful, as did all the people --

Q And he plead guilty to two counts of first-degree murder, isn't that true?

A Second degree.

Q Second-degree murder.

A He did ultimately enter into a plea agreement on that issue, yes.

Q So that test, your outcome on that test, was totally wrong.

A Well, my scoring was correct, the test was wrong. Because my scoring was the same as all the law enforcement people that it was sent to.

Q What was your conclusion on that test?

A That he was truthful.

Q When he denied the charges.

A That's correct.

Q And there was nothing wrong with the test that was administered, was there?

A No, he was an exceptional criminal, who had fifteen years of experience with self-hypnosis.

Q Are you aware --

THE COURT: I think we've gone over that.

Q Are you aware of whether or not he had any prior criminal record at the time?

A He had never been arrested as far as I know. He had been engaged in all kinds of prior activity, criminal activity.

MR. JALELIAN: Thank you. No further questions, Your Honor.

THE COURT: All right, redirect.

MR. GOOD: Thank you, Your Honor.

Q Now, you were asked on --

MR. GOOD: May I approach the witness, Your Honor?

THE COURT: Yes.

Q You were asked on direct examination about -- or the cross-examination rather -- this table on page 1019 of the "North Dakota Law Review" article authored by Dr. Honts and another individual.

A Yes.

Q Do you recall that? And looking at that table that was referred to on cross-examination, with respect to the field studies, which is what that table concerns, there's a recording, or a tabulation, of how many times guilty people pass the test, is that right?

A Yes.

Q And there are four studies listed there?

A Yes.

Q And included in that study, or that group of studies rather, is one by Patrick and Iacono.

A That's correct.

Q And Patrick and Iacono are generally people who have been opposed to the conclusion that the test is scientifically valid, is that true?

A Well, they've raised a lot of serious questions about some aspects of its validity, yes.

Q And they found in a total sample of fifty -- how many people, fifty-two people?

A Yes.

Q That only two of the fifty-two people, two percent rather, passed the test.

A Yes.

Q Despite being guilty.

A One individual, yes.

Q One individual.

A Yes.

Q Out of the fifty-two.

A Yes.

Q And that resulted in a computation of two percent.

A Yes.

Q And the remainder of all subjects that were tested in these high quality field studies, which would number in excess of three hundred, would it not, close to four hundred people, is that not correct?

A Actually a hundred and eight.

Q That only one person out of the hundred and eight who were guilty, verified guilty, passed the test, isn't that right?

MR. JALELIAN: Objection.

A That is correct.

THE COURT: I'll allow it.

MR. JALELIAN: Just to the form. This is redirect.

Q So, and with respect to those studies, sir, those are studies that were conducted after --

THE COURT: Excuse me a moment, Mr. Good. But this is your witness and you're conducting the direct examination. So it would be best not to ask too many leading questions.

MR. GOOD: All right.

Q Now, sir, with respect to verification of what's been referred to in the literature and in the hearing as "ground truth," can you describe for the Court what is meant by the evidence used to establish the verification of ground truth in those cases where the person was guilty?

A What did it consist of?

Q Exactly, sir.

A In all of these four studies, the evidence consisted of a combination of confessions and independently-gathered evidence, often of a physical evidence nature in various combinations, depending upon the study. And also, some other types of evidence that were also considered in Dr. Honts' study published, in this table it says "1994," actually it was published in the journal in 1996. So there is in every case independent evidence from the polygraph.

Q And much of that evidence appeared, in fact --

MR. GOOD: Your Honor, if I may again approach the witness.

Q Now, what is the phrase for the rate, the term used to describe the rate at which guilty people pass the test, what's the term used in the literature?

A False negative, meaning falsely concluding negative with regard to deception, that it doesn't exist.

Q And the false-negative rate for those high quality studies is expressed as a percentage?

A Yes.

Q Is what?

A It's one percent.

Q And, now turning -- now, with respect to the table on page 1018, take the page before, what is the false-negative rate for the control question test there?

A This is on the laboratory studies, is overall rate of ten percent.

Q And when -- now, with respect to that false-negative rate, can you tell the Court why, if it's true, the Court should focus on that particular statistic as the most important statistic for determining scientific validity with respect to the result offered to the Court in this case?

A The question in this case is whether or not, or the extent to which one can rely on the result obtained. The result obtained can be one of two types, indicating truthfulness, indicating deception.

In this matter, the test indicates truthfulness. So the appropriate statistic to consider is the extent to which a truthful outcome might be wrong, namely, might be representing a false-negative error - a guilty person who passed the test. That is the concern.

And so one looks then at the false-negative rate to assess the confidence in this result that we have before us. And that is the only appropriate number to look at. Had it been a deceptive outcome, then one would look at the false-positive rate to determine the extent to which that might be a truthful person who falsely failed the test, but that's not the issue here.

Q Now, with respect to these studies that are referred, and the field studies in particular, those studies, there have been criticism prior to those studies, was there not, about the way in which ground truth was determined, is that true?

A There are other studies in the literature that had various kinds of problems, I wrote extensively about them, as well as other people, yes.

Q In what way did these studies that are referred to in the table itself, improve upon the verification of ground truth?

A They did that in a number of ways.

First of all, they improved on it in terms of the ways that the polygraphs were generated by relying upon tests used, administered, by high quality, well-trained examiners, where there was control over the administration and the record.

Secondly, they rely upon tests that were only of a control-question type, because that was the issue, and in some of the earlier studies it was hard to know exactly what kinds of tests were run by whom, in terms of their training.

Thirdly, they used criteria then of ground truth, which took into account, not only confessions by the person who was verified to have done it, but also considered other evidence along with the confessions that would strengthen the extent to which one could be sure that the person who confessed was, in fact, guilty, such as recovering the evidence that the person claimed they had, such as counterfeit money, or jewelry that was stolen from a store.

MR. JALELIAN: Objection. None of this was in his direct affidavit, and I don't believe any of it was brought up explicitly on cross.

THE COURT: Well, I'll allow it to a modest extent.

MR. GOOD: I'm sorry, I couldn't hear Your Honor.

THE COURT: I just said I'll allow it to a modest extent.

Q Go ahead, finish.

A And also other forms of evidence, such as strong witness statements or, in some instances, where the person who had reported the crime discovered the crime had not actually occurred, such as the things that were thought to have been stolen weren't stolen, and they could demonstrate that, so that would exonerate the person who had been accused. There's a variety of other types of evidence which resolved and dealt with the issues that had been raised earlier.

Q And with respect to these field studies that resulted in the two percent false-negative rate, the Patrick and Iacono study, who were the examiners that actually conducted, or what agency employed the examiners that performed the polygraph examination?

A The Royal Canadian Mounted Police of Canada.

Q And that's true with respect to Charles Honts' study as well, his field study.

A That is correct.

Q And with respect to that latter study which was mentioned in the table by Dr. Honts, associated with the Royal Canadian Mounted Police, that study was not published and peer reviewed until after the Mendes decision came down, is that correct?

A That's right, it was published just late last year.

Q And the extent of variation in the false negatives according to that table with respect to the field test, runs from zero false negative to one, is that right? I'm sorry, zero -- the numbers are either zero false negatives throughout the entire study, or one.

A There are three zeroes in three studies, and one individual in the Patrick and Iacono study, a total of one out of four studies.

Q Now, sir, can you describe to the Court what, if anything, that -- well, let me ask you this. Is the methodology used by Dr. Honts in the Royal Canadian Police study, the same as the Patrick and Iacono study, the methodology essentially the same?

A Well, it's actually improved over the Patrick and Iacono study.

Q But with respect to the verification of ground truth, the procedure is about the same?

A Well, except he also examined other criteria independent of confessions to see if those also produced high rates of accuracy, and they did. That was something suggested by Patrick and Iacono, and Dr. Honts did exactly what they suggested.

Q And could you describe for the Court what it is about that document data -- or let me put the question this way. Would you tell the Court what that scientific data indicates about the scientific validity of outcomes of tests where the person passes the test.

A Those data taken as a whole represent the highest quality and most reliable data available with regard to the issue of confidence in a result showing that the person was answering truthfully. And they show that the false-negative rate is extremely low, one percent, which means one can have extraordinarily high confidence in the accuracy of a test that indicates truthfulness.

Q And can you, Dr. Raskin, compare that error rate with the error rate for other types of tests commonly made use of in court, forensic use? For example, a horizontal nystagmus test.

MR. JALELIAN: Objection.

THE COURT: Sustained. That wasn't brought out on cross-examination.

MR. GOOD: I'm sorry, Your Honor, I'll withdraw it.

Q Now, on cross-examination you were asked about this countermeasure study that Dr. Honts developed under your supervision.

A Yes.

Q And that's a laboratory study, is it not?

A That is correct.

Q That is, the people, the subjects, the test subjects in the countermeasure study, were not actual people charged or accused of criminal activity.

A Well, if they were, we didn't know about it, it would have happened outside our purview.

Q The study was about mock crimes, is that right?

A Yes, it was a laboratory simulation.

Q And you were asked a number of questions on cross examination about the extent to which simulations do or do not provide data that can be generalized to the field, isn't that right?

A I don't recall that question.

Q Well, with respect to the laboratory data, sir, you were asked about laboratory data concerning countermeasures. Is there any, do you know of any evidence that would show that any of the countermeasures found to be effective in the laboratory study, would in fact be effective in the field?

A There are no data that bear directly on that issue, other than some anecdotal data from actual cases.

Q There's no scientific data.

A Not that I'm aware of. And if there is, it's classified.

MR. GOOD: And if I may just take the liberty of one question just to save time, Your Honor.

Q With respect to the countermeasures, the idea is to do something as the subject, to raise one's response to the control question, one's physiological response to the control question, is that right?

A The countermeasures that we studied in the lab, yes.

Q And in this case, that is in the Woodward case, the countermeasure would have to function so as to raise the control, Louise Woodward's physiological response to the control questions, high enough so that, when compared to her responses, physiological responses to the relevant questions, that she appeared to be innocent when, in fact, she was guilty, or she would appear to be truthful when, in fact, she is being deceptive.

A That would be the intent of doing it, and would have to function that way to produce the results.

Q Now, do you know, sir, does the laboratory study indicate to you, sir, does that constitute evidence that the measures, countermeasures used in the laboratory studies, would in fact be effective in the field?

A No, it does not tell us that.

Q So there is no scientific data that there are effective countermeasures in the field, isn't that true?

A That's correct.

THE COURT: You're cross-examining your own witness.

Q Now, sir, you were asked questions on, I believe by the Court during cross-examination, about Ms. Woodward being asked a question, R-1, the first question, which reads as follows: "On February 4, 1997, did you hit or strike Matthew on the head?" And the Court asked you questions about, if that question could be answered literally truthfully no, but Miss Woodward had, in fact, dropped the baby. Can you explain to the Court why it is that, if Ms. Woodward had been deceptive in answering "no," even if, that is, that her answering the question literally would protect her from being detected as being deceptive if she dropped the baby?

MR. GOOD: Have I asked the question clearly enough, Your Honor, though long?

THE COURT: I'm not the witness.

MR. JALELIAN: I don't understand the question.

THE COURT: It's not necessary that you or I understand the question, it's only necessary that the witness understand the question.

MR. GOOD: I want to make sure that Your Honor understood the question. Let me try it again.

Q Ms. Woodward was asked this question which I have read to you. And I believe the Court asked you whether or not, if Ms. Woodward would answer the question literally "no," while mindful of the fact that she had dropped Matthew Eappen on his head, whether or not, if she were literally just answering the question "no," with a literal answer to the question, but nevertheless knew that she dropped the baby on his head, would she have passed the question?

A Very unlikely that she could pass that question.

Q And could you explain to the Court why that's so, and what the science is that supports your answer.

A There is considerable scientific evidence that if a person is involved in a serious situation, and they are asked questions about their involvement, and they deny having done anything like the acts described alleged, that they will fail the test at a high rate, even if the questions asked are not precise enough to tap the exact nature of the act, as long as the result and the actions produce a similar consequence. In other words, having committed the crime, or being involved in a crime in some substantial way, such that if a person is asked about one very direct major involvement question, and they had been involved in the situation and had committed a crime that they know of by having done something that is related or similar in that situation, they will at a very high rate fail.

In the instance we have here, where it is alleged that Ms. Woodward caused injuries to this child's head, and one of the suspicions is that she dropped the child - that's being raised now - then if she had done that, and knew that that had happened, and caused injuries, or likely caused injuries, when asked about hitting on the head, that would provoke the same kind of reaction, particularly when being concerned that if she's found deceptive on that, there are very severe consequences for her life.

Q Now, can you explain to the Court what the scientific evidence is that you're relying on by that answer.

MR. JALELIAN: Objection.

THE COURT: On what ground?

MR. JALELIAN: This is all -- I thought this was the purpose of the affidavit.

THE COURT: I'll allow it.

A There are two types of evidence at least. One is evidence from the laboratory.

We have conducted studies, and others have, that asked questions about different acts involved in a crime situation, or simulated crime situation. One study is one from the FBI laboratory conducted by Dr. Podlesny - P-O-D-L-E-S-N-Y - and Ms. Truslow - T-R-U-S-L-O-W - published in the "Journal of Applied Psychology," 1993 I believe, in which individuals who are guilty in that situation performed one of three roles. They either committed the theft. They were an accomplice in the theft. Or they were involved in knowledge of the conspiracy to commit the theft.

The test showed that persons who played the lesser role of either accomplice or conspirator, were detected at a very high rate. And it wasn't necessarily because they responded to that particular question; they may have responded to one of the other questions about doing the theft, and vice versa.

The point was that it is sometimes difficult to isolate in an extremely precise way exactly which role they played. But if they played any role involving guilt in that situation, they failed at a very high rate.

Similar results from our own laboratory, where we has a simulated crime, where people who actually committed the main act, taking the valuable away from the desk, would sometimes react more strongly to the question about, "Do you have that ring on you now," and vice versa. Those are laboratory data.

From the field, there are also data - for example, from the Patrick and Iacono study - with an actual criminal investigation. If a person was asked, in this specific case as an example, about a jewelry robbery, where the individual was suspected of having broken into a jewelry store and stolen a diamond ring worth about five thousand dollars, the examination asked him if he did the robbery, if he took the ring from the store. He failed that examination, although he did not, in fact, take the ring, but rather it was his brother who took the ring, and he received the stolen property. And that was all independently verified.

What it shows is, because he had an involvement in the situation, and because he was guilty of a closely-related act, even though he was not asked the precise question, and answered technically truthfully, he clearly failed the test. And that is a common thing that happens, and that's why one has to be careful to try to sample the range of possibilities. It would be picked up on one or more of the questions.

Q Now --

THE COURT: Excuse me, I don't mean to rush you at all, but how much more time will you have with this witness?

MR. GOOD: Not much more, Your Honor.

THE COURT: I'll wait until you finish with him before I take a break.

MR. GOOD: Thank you, Your Honor.

Q Now, you were asked on cross-examination questions about your use of the "other-than" formulation on one of the four relevant questions, but not on the first, that is, you used the "other-than" formulation on the fourth question -- I'm sorry --on the third question, that is, "Other than trying to arouse him on February 4, 1997, did you injure Matthew by forcibly shaking him?" Now, you did not use that, you acknowledged on cross-examination in the first question, that is -- or in any of the other questions for that matter. That is, you were not, you did not formulate a question that used this formulation other than this once.

With respect to your choice not to do so, could you explain to the Court what the problem would have been had you done so?

MR. JALELIAN: Objection.

THE COURT: I'll allow the question.

A Well, with a couple of the questions, there was no indication that it was even an issue, like, "Did you hit or strike him on the head." That was very direct, and there was no discussion about some hitting or striking on the head that could have been misinterpreted. And also, the one about -- I'm at a loss because I don't have the questions right in front of me -- about inflicting the injuries. The one place where one would have to consider that is on question R-2, "On February 4th, 1997 did you deliberately hit Matthew's head against a hard object or surface?" And there was an issue raised about why didn't I say "other than" -- and I don't know exactly how I would phrase it, "other than letting his head drop on the floor by removing your hand," or something like that, and it would be difficult to phrase -- why didn't I do that. And that was because you can't ask "other than" when the person expresses an uncertainty about whether that even happened. It creates a thought process that provokes reaction, and would risk a false-positive error. So that's why I chose the wording that I did, because it was consistent with the fact situation as I understood it.

Q Okay. So you used the "other-than" formulation in the third question because there was no uncertainty on Louise Woodward's part about shaking him to arouse him.

A Yes.

Q She was certain that she had done that.

A Yes, she even demonstrated to me how she did that.

Q But with respect to whether or not she, in any respect, the baby's head dropped on the floor, she wasn't certain that that had occurred at all.

A That's my recollection, yes.

Q Now, you were asked some questions on direct examination about, I mean cross-examination, about whether or not you measure blood pressure. Do you recall those questions about the blood pressure measurement on cross-examination, that you were asked a series of questions about blood pressure?

A There were a few questions about that, yes.

Q And just to be clear, polygraph examination is not one that includes merely a measurement of blood pressure, is that right?

A That's correct. In the examination I conducted, there are four independent systems measured.

Q So that one, just to, not to conduct redirect examination here, but your answers to those questions were about the significance of blood pressure only, isn't that right?

A I think so. They weren't always frankly clear to me exactly what they were.

Q Okay. But in any rate, in order to conduct this examination according to accepted and generally standardized technique, one would have to measure all four systemic measurements, isn't that right?

A Yes. Well, many polygraph examinations don't include the finger, quote-unquote, "plethysmograph," that's an additional measure that's not required, but we use it because it can be useful.

Q Now, you were asked some questions about differences in scoring methods. Can you tell the Court whether or not the differences in scoring methods between whatever the FBI uses and the one that you used and the RCMP used, has it ever been shown to your knowledge whether or not these differences in scoring methodologies have an impact on the consistency of results?

MR. JALELIAN: Objection.

THE COURT: Sustained. You're leading your witness.

Q Could you comment, sir, on the significance of the difference in scoring systems, that is, how extensive the differences are and what consequences they have for reliability?

MR. JALELIAN: Objection.

THE COURT: I'll allow it.

A The scoring systems that were discussed have to do with the, what's often known as the Federal Scoring System, the one taught at the Department of Defense Polygraph Institute for Federal Examiners. And the scoring system that's commonly referred to as the "Utah Method," which is an extension and refinement of the Federal system.

The basic difference has to do with, the Federal system using as index of reaction some features of the recordings that we have found not to be very useful from scientific research. So ours is a somewhat simpler system that can be implemented more easily and somewhat more reliably.

But there are two studies that have been done that have directly compared those two systems, along with a third system, and the findings of both of those studies conducted by the government indicate there is no substantial difference in the outcome of the decisions based on either the Federal system or the Utah system.

MR. JALELIAN: Objection. I'd just like dates and names and publications of those studies.

THE COURT: I'm sorry?

MR. JALELIAN: I would just like the names and dates and publications of those studies.

THE WITNESS: One study was conducted by Richard Weaver at the National Security Agency. I believe it was published in 1984 in "The Journal of Polygraph." Another study was conducted by Michael Capps, and I can't remember who the co-author or authors are. Mr. Capps at the time was with the National Security Agency, he's now at the Department of Defense Polygraph Institute, he's the director. And that was a government report. And I can't give you the date, but I could supply a copy I think if given the opportunity.

Q Now, you were asked questions about the FBI, I believe, use of the polygraph. If I'm confusing you, you'll correct me, whether it's Dr. Honts or Dr. Raskin. Who trains the FBI polygraph again, which agency of government trains them?

A Their initial training is at the Department of Defense Polygraph Institute, which trains all the federal examiners except the CIA.

MR. GOOD: That's all I have, Your Honor, thank you.

THE COURT: All right, anything else?

MR. JALELIAN: Just two brief questions.

Q You testified on direct examination that there wasn't any substantial difference between the types of scoring methods, is that correct, on cross-examination by me, is that correct?

A I'm sorry, you've confused me. Would you ask that question again.

Q When I asked you a question on cross-examination, you testified there wasn't substantially any difference between the scoring methods done by polygraphing, is that correct?

A In terms of their outcomes, yes.

Q And on redirect examination, you testified there are three different types of polygraph scoring methods: one done by the Department of Defense, one done by the Utah School, and then a third one, isn't that correct?

A There's a third one that wasn't, as I understood it, part of your question to me initially, and it's not one that's widely used.

Q There are three different types.

A Well, there are other types, too. There are some people that have idiosyncratic ones, but those --

Q You also testified that the mixed role studies where an accomplice or conspirators, if they're involved, they will flunk the test because of that role but not, they will technically pass on the "did you do it" question, is that fair?

A That's not what I said, no.

Q Well, the mixed roles indicate that people do not pass, is that correct?

A What it indicates is that they had some involvement, they failed.

Q Now, the R-3 question that you asked Louise Woodward indicates that she had some forcibly shaking involvement with Matthew, isn't that correct?

A No, I think that's your interpretation, that's not mine.

Q "Other than trying to arouse him on February 4th, did you injure Matthew by forcibly shaking him?" That involves a question surrounding "forcibly shaking," doesn't it?

A Yes, but it doesn't indicate that she forcibly shook him. She indicated she didn't. But I used the term because she seemed concerned that even the minor amount of movement that she induced because she was trying to arouse him, for some reason unknown to her, might have caused some injury, so I had to be concerned about that. And because of the nature of the injuries, and it was indicated that force was used to produce those injuries - that's what the medical reports indicated - then I used that term because that's how the injuries, according to the medical reports, came about.

Q And you are aware that --

THE COURT: I realize there's been a lot of math in this, but you did say "two questions."

MR. JALELIAN: No further questions.

THE COURT: No, I mean finish what you're saying. I wouldn't want to --

Q If she was involved in forcibly shaking, under the studies that you indicated, would she not have failed that question?

A Oh, yes, she would have failed that question.

Q I understand that. But it's your testimony that she passed it.

A Yes.

Q And you read her statement.

A I'm sorry?

Q You read the statement provided to you, the police statement that she made to the police.

MR. GOOD: Again, that's the police statement, not her statement.

A That's not her statement.

Q Which she's relied upon --

THE COURT: He said it's the statement that the police say that she made, I understand that.

Q And portions of that you adopted questions from because you accept it, like her bathroom dropping, that may or may not have happened.

A No, that was based upon an extensive discussion with her. As I recall, she said something to the effect that the police, she was concerned about what the police said she said because that's not what she said.

Q So there were portions of the statement that you found and used in your polygraph examination, but portions that you didn't use, is that correct?

A I don't know what you're asking. What statements and what portions? I just don't know what you mean.

MR. JALELIAN: No further questions. Your Honor, at this point, the Commonwealth --

THE COURT: Excuse me. Doctor, you're excused.

THE WITNESS: Thank you, Your Honor.

THE COURT: Yes, Mr. Jalelian.

MR. JALELIAN: Regarding the transcript that is Exhibit A, the Commonwealth would like a copy of this.

THE COURT: Well, you can work that out with Mr. Good.

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

MR. JALELIAN: Thank you.

THE COURT: We'll take about a fifteen-minute break in this case now. You may leave your materials on the desks.

THE COURT: All right, Professor Honts, I'll just remind you you're still under oath, and we can resume.

MR. JALELIAN: Your Honor, before we begin, the Commonwealth would like to move to enter into evidence the transcript that was received, it's now Exhibit A for Identification.

THE COURT: The transcript?

MR. JALELIAN: The transcript of the polygraph examination.

THE COURT: Any objection?

MR. GOOD: No, Your Honor.

THE COURT: All right, that'll be Exhibit 7.

THE COURT: All right.

MR. GOOD: May I proceed, Your Honor?

THE COURT: Please.

Q Dr. Honts, you were asked some questions on cross examination about, that used the word "screening" in studies with respect to "polygraph use in screening." Would you explain to the Court what the word "screening" means in connection with the questions you were asked.

A Yes. The studies that address the issue of screening have to do with testing that's done in employment. And those studies have a very fundamental difference from forensic polygraphs, in that the goal of the screening test is to predict how a person's going to behave in the future. Whereas the goal of a forensic test is to determine what someone's done in the past. Predicting what's going to go on in the future is much more difficult, and, in fact, is a very different problem from the problem in a forensic test.

There are also other important problems about how frequently you expect failure. In a screening test, most of these studies were done in the mid- to late 1980s during the Cold War, and the primary target then were hostile agents primarily from the Soviet Union. And the expectation of those examiners who tested them, is that the number of hostile agents is actually quite small. And so the expectation that a person might fail is quite low.

In a forensic situation that's not the case. In most forensic situations, depending upon the police department, or the practice of the individual examiner, you more or less can expect about fifty-fifty.

Q Now, I take it that, just to be clear, is the type of examination that was administered to Louise Woodward, a screening-type examination?

A No, it was not.

Q And is the data related to validity or reliability of screening, screening application of polygraph tests, pertinent to the issue before the Court?

A Not at all. In many cases, it doesn't even involve the same structure of a polygraph test. But none of that data is relevant for forensic applications of the polygraph.

Q And you were asked questions about habituation, that is, a person being asked a question about a past incident repeatedly, and answering the question repeatedly. Could you explain to the Court whether or not the process of habituation, that is repeatedly having a question asked about an incident and having answered, what if any impact that has on the polygraph examination and the scientific evidence upon which you rely to give that answer.

A Well, I think the likelihood of having any, any effect on a polygraph test, is nil, because the context of a polygraph test is so vastly different from the context within which you would tell a story, say, to your attorney, or to police officers, or even to the media. Because in the context of a polygraph test, you're being attached to a machine, you know that your credibility is being assessed directly by involuntary means. It's a completely different situation.

Another psychological concept comes to play here, and that's a notion called "dishabituation." That is, when the context changes, the response returns, and often returns stronger than it was in the first situation.

So I think that what happens in that situation, and this would apply to virtually every polygraph test in a criminal forensic case because people will have been questioned repeatedly. But when they show up for that polygraph test, that will be a dishabituating situation, and their responding will return.

Now, if many, many, many polygraph tests have been conducted, you have another issue.

Q Now, you were also asked some questions on cross examination about assessing the truthfulness or deceptiveness of a person's answers to questions that include an adverb about intent, such as "intentionally" or "deliberately," "forcibly," and the like.

Now, have you, with respect to the literature of the field studies about polygraph examinations, can you tell the Court whether or not those field studies about the polygraph examination included test questions that involve such adverbs as "deliberately" or "intentionally," or "forcibly," those kinds of issues.

A Yes.

Q And could you give the Court some examples, common examples of the situation in which those kinds of questions were put?

A Yes. Well, those kinds of questions would be put, for example in a sexual abuse case, where the person may have been in a caretaking role and would have had legitimate reasons for touching the child in the genital area for example; and the issue then becomes was the touching that occurred of a sexual nature. And you would say, "Did you touch Suzie for sexual purposes?"

And the way that that is dealt with is, during the pre-test interview, the discussion between the polygraph examiner and the subject, the term "sexual" would be defined. You certainly could do the same thing with "deliberate." In this case, we're concerned with the difference between a deliberate act and something that might have happened accidentally. And so the discussion between the polygraph examiner and the subject would have been one of defining what the difference was. And it would then be clear that the word is tied to the act. So there's a clear difference between an act that's deliberate, and one that might have happened accidentally.

THE COURT: Do you or do you not have any distinction verbally between the word "deliberate" and the word "intentional"?

THE WITNESS: In this case, yes, there is a distinction because "deliberate" was tied to an act through the pre-test interview.

THE COURT: Well, what do you concede to be the difference in this context between the two words - one word is "intentional" and one word is "deliberate."

THE WITNESS: Well, I believe that the word "intentionally" could have been used had that been tied then to the conduct - "Did you intentionally inflict the injuries?" - as compared to an accident.

THE COURT: I'm afraid either I'm not making it clear or you're not answering clearly. But in any event, let me try again.

How does the phrase, "Did you intentionally do something," differ from, "Did you deliberately do something"?

THE WITNESS: It might not. The appropriateness of it for a polygraph test would be how that was dealt with during the pre-test interview.

THE COURT: What does that mean, "how it was dealt with"?

THE WITNESS: How it was discussed and presented to the subject. So it is defined in terms of acts.

THE COURT: Words are defined in terms of words, that's how you define a word, by using other words.

THE WITNESS: Yes, Your Honor. But it was defined in this case as the difference between something that would have occurred as an accident, versus something that would have occurred as a deliberate act on the part of the subject.

THE COURT: Well, am I correct then, or am I not correct in interpreting what you're saying as, they could have used the word "intentional," but instead they used the word "deliberate," so that's, that is in pre-test discussion, so that's why the word "deliberate" appears on the test. Is that what you're telling me?

THE WITNESS: Yes, Your Honor.

THE COURT: Could they have used the phrase "on purpose" instead if that's what they had --

THE WITNESS: I believe he could have, if that was how it had been discussed with the subject. The discussion with the subject sets the context for that question, and in a sense it's a narrowing of the question, it's eliminating accidental acts.

THE COURT: No, but I mean you keep saying that but it doesn't make any sense. I think what you're saying is, they used the word "deliberately" in the discussion. If they had used the word "intentionally" in the discussion, or if they'd used the phrase "on purpose," or if they had used the phrase "meaning to," all of which have roughly the same meaning, then they would have used, whatever phrase or word they had used in the discussions, they would have used that one in the question. Now, is that what you're telling me? Because if it's not what you're telling me, I want you to clear up my confusion.

THE WITNESS: Yes, Your Honor, that's exactly what I'm saying.

MR. GOOD: So just to follow this up, if I may just lead a little bit, Your Honor.

Q The use of the adverb is then tied to overt acts, that is, in the subject's mind it's defined as a certain type of overt act, activity, as distinguished from some other kind of overt activity.

A Yes, that's correct.

Q It's a label for certain types of activity.

A Yes, and it's an exclusionary label. And what it's excluding are accidental things.

Q Now, you were asked some questions -- well, before I leave that. Are there also instances in which, in the context of these, use of these, for lack of better word, "intent" adverbs in questions, you've mentioned that in these studies, field studies, these words were used in connection with sexual abuse, child sexual abuse cases. Does it also occur in the rape context in these field studies?

A Absolutely.

Q And could you tell the Court what were the words?

A Well, the word there would be "forcible." And what would be done then in the pre-test interview is to define what "forcible" means. "Did you force so-and-so to have sex with you?" And there would be a discussion what the word "force" means. It might mean physical coercion. It might mean verbal coercion. It might mean a variety of things. But that would be defined in the context of the pre-test interview. And those kinds of questions are in the field studies. The validity data that we've talked about represents tests that use those kinds of questions.

Q And again, the outcomes were verified with, independent of the examinations in these field studies that we're talking about.

A Yes. Someone, in those studies, with the exception of the Honts and Raskin study, and for the vast majority of cases they were all confirmed by someone confessing to the crime and additional evidence.

Q Now, you were also asked some questions about, on cross-examination, about the DeLorean case. Would you tell the Court what confirmation occurred in the DeLorean case with respect to the results of the test given to DeLorean on the one hand, and the, what the evidence, independent evidence, showed with respect to the result of the examination in that case.

A Well, in that case, Dr. Raskin's test - and I assisted on that test, I was a graduate student at the time, the questions dealt with very narrow issues about who first proposed a drug transaction in that case. And the testimony in the case from the Government's own witnesses, clearly confirmed Dr. Raskin's test as being correct.

THE COURT: "From the Government's own" -- what do you mean by that?

THE WITNESS: Well, the Government had several witnesses, several agents who came over and testified for the defense. And their testimony confirmed John DeLorean's statements.

Q Now, you were also asked some questions about countermeasure studies. And could you tell the Court have you had some government background in the area of countermeasures, government employment?

A Yes.

Q Would you describe what that is?

A I worked for a little over two years for the Department of Defense at the Department of Defense Polygraph Institute at Fort McClellan in Alabama.

Q And was your work focused on the countermeasures in the area of polygraph?

A Countermeasures is one of the topics. I was a research team leader. And one of the topics we covered was countermeasures, yes.

Q And you had done research about countermeasures before you went to work for the Department of Defense.

A Yes, in fact I think that's why they wanted me to come to work for them.

Q And you've gone to work, you've continued to do research about countermeasures subsequently.

A That's correct.

Q And you've published peer review, peer-reviewed articles on the subject.

A Yes, virtually all of the peer-reviewed articles on countermeasures are from me.

Q And --

A Not "all," but virtually all.

Q With respect to the countermeasures that you were asked about on cross-examination - that is, biting one's tongue; a tack in a shoe; pushing feet down, I think those were the three items that were mentioned, as well as mental countermeasures - with the provision of information, that is just the knowledge that these are the types of countermeasures that, that these are the overt acts that are involved in countermeasures, have you done any studies about the mere obtaining of the information by a subject? That is, that they know that much, that you can do this, you can affect a countermeasure by doing any one of those things. Has there been a study as to whether or not that is effective, that is, just to know about it?

A Yes, there are two.

Q And what are the outcomes of those studies?

A Well, there was an experiment that was conducted in Dr. Raskin's laboratory by a gentleman named Louis Rovner. And what Rovner did was, he gave subjects - it was a laboratory experiment, all the countermeasure studies are laboratory experiments - he gave subjects, both innocent and guilty, a booklet. It was a quite detailed booklet. It gave a complete description of the control-question test, and it gave a complete description of how control-question tests are evaluated, and it gave a menu of potential countermeasures, and it told people what they'd have to do to beat the test. That is, they'd have to produce larger responses to control questions than to the relevant questions. Not a single one of those people was able to beat the test.

The other source of information on that is research that I did, which involved looking at a series of studies that we had done. And in these laboratory studies, once the study is finished and the person has received the outcome of the polygraph test, and they've received whatever money they received as part of their participation, we then engaged in an extensive debriefing. And at that point, the person really has no reason to lie to us about the study because the reward part of the study is over, and they're just now being paid for their time. And we asked them about what they know about the polygraph, where they learned that information about the polygraph, and did they use countermeasures. And, in fact, the majority, sixty-some-odd percent of the guilty subjects in these laboratory studies, attempt to beat the test in some way.

Most of them are quite naive. A few of them are quite sophisticated. Universally, they are unsuccessful in producing false-negative outcomes, even if they have done things like watched -- there was a Sixty Minutes show on in the mid- to late eighties that purported to show people how to beat the test. Some of them had read things in the underground literature. Some of them had talked to people who had taken polygraph tests before. Not a one of them was able to beat the test on the basis of information alone.

Q So if information alone is inadequate, Dr. Honts, as a countermeasure, what is the additional feature that, or element, that at least in the laboratory, have been shown to be effective countermeasures?

A Well, the additional feature is the hands-on training. And we gave them very efficient hands-on training, that there was a person there who coaches them in how to do the countermeasure unobtrusively, when to turn it on, when to turn it off, and then they have them practice. And they practice while they're being observed, not attached to an instrument, but they practice with someone who knows what to do, and knows what would be observed by a polygraph examiner. And it's that training that makes the difference. Without the training, the information -- and actually Rovner gave much more information than what we did in our studies and suggested more countermeasures than we did, and gave better information about the polygraph -- the information is not sufficient.

Q Now, even when a person is trained, based on the study, the laboratory study that you did, what proportion of people who succeed with the countermeasure?

A Well, over the series of studies, it works out to about half. And that is somewhat dependent upon the method of analysis, but about half. If a computer is used to evaluate the charts, we can reduce that to about fifteen percent.

Q Now, and I take it that there -- can you tell us, Dr. Honts, whether or not the laboratory data about countermeasures constitutes scientific evidence that the countermeasures studied in these laboratory studies is scientific evidence that those countermeasures would be effective in the field.

A Well, it's evidence. The question is the likelihood. And I think we have to be especially cautious here because of some of the things we discussed this morning, in that the power of relevant questions is tied to a very small motivation, that is, to winning fifteen, or twenty, or fifty dollars, depending on the study. And because of that, the psychological impact of the relevant questions may be relatively light in laboratory studies. And we'd expect the false-negative rate to be a little higher in laboratory studies anyway. And, in fact, that's what we find, because they don't have the impact of the threat of going to jail.

If you're facing the threat of going to jail, those relevant questions - "Did you do it?" in this case, "Did you strike the child? Did you forcibly shake the child?" - those are going to have a tremendous amount of power. We don't have any idea whether in a real field situation, where the relevant questions are charged with that kind of power, whether these can work at all.

The reason these studies were done was to examine a possibility that countermeasures could be effective. Because if we couldn't do it in the laboratory, then we knew we were safe in the field. But since we can do it in a laboratory, it becomes a concern for those people likely to have had additional training. Our model - and you have to remember the context when these studies were run. These were run during the eighties, during the Cold War - our model is hostile intelligence officers who could have, and there were rumors that now turned out to be true, that there was a Soviet Beat-The-Polygraph Training School in Czechoslovakia, that people who went to that school, could they beat the test. And we wanted to look at that possibility.

THE COURT: Is the problem that you can't get in the laboratory a suitable combination of stick and carrot to make it realistic?

THE WITNESS: Yes, Your Honor. We're restrained ethically from offering sanctions, that is, hurting people. And there's only so much we can do. Now, we've used different amounts of money, and we get approximately the same results even with fairly large amounts of money. But we're just not, well, we're not allowed to do that, things to people in the laboratory.

THE COURT: But suppose you had a test in which you gave each subject five hundred dollars. And you told half of them to tell lies, and half of them to tell the truth, the same way that you do now. And you said to each of them, "If you beat the test, you get another fifteen hundred dollars. If you lose, you have to give the five hundred dollars back." Would that --

THE WITNESS: That would certainly help, because that --

THE COURT: I mean you'd need a grant for that obviously.

THE WITNESS: We would need a very large grant for that. Dr. Raskin has done a study, he did a study for the Central Intelligence Agency that has not been published --

THE COURT: And in fact probably doesn't exist and it's on paper that when you read it, it disappears.

THE WITNESS: It might. I don't know whether my copy is still in the file cabinet or not, Your Honor.

They entered people's name into a lottery for five hundred dollars if they passed the test. And they found results very similar to what we've always found.

Now, there is one exception in that -- there are two exceptions that I think are worth mentioning in that list of laboratory studies. One is the Ginton study. The Ginton study is almost a field study, and if I may I'll describe it to you.

It was a study that was done in Israel at the Israeli Police Academy. And the experimenters worked for the Israeli Police. And they went into the academy and they made arrangements to give a personality test to the police candidates in one class. And then they allowed those same candidates to score their own test. And they were told that the outcome of the test would have a major impact on where they were assigned after they got out of the academy. As you might imagine, you'd much rather be assigned to Tel Aviv than to Gaza, so there was quite a lot riding on the outcome of that personality test.

Unbeknownst to the students, the tests were on a special kind of paper that could detect if they cheated. And it turned out that five of them cheated. The experimenters then came in and said, "We know that you have been cheating. This is intolerable for Israeli Police Officers. We're going to ask you all to take polygraph tests."

Now, if you'll look at that study, you'll see that of the five guilty people who cheated, three of them resigned from the school immediately, but two of them did agree to be tested. And if I recall correctly, there were fifteen, fifteen innocent people who agreed to be tested. And the accuracy rates in that study are comparable to the high quality studies such as those that we did at the University of Utah.

And in that one I think the motivations were real, because the people who flunked were kicked out of the Israel Police Academy. But we'd never be allowed to do that study in the United States.

Q Now --

A If I might finish because I said there were two.

Q I'm sorry.

A The other study was a study that was done in Canada, and it's Bradlee and Janece. What was done in the Bradlee and Janece study is that --

MR. JALELIAN: I think based on the previous explanation of the study, we're getting somewhat far afield of the focus of the hearing.

THE COURT: Give us the one-minute description.

THE WITNESS: Very quickly.

A In the Bradlee and Janece study, they compared money to the threat of electric shock. So that if you fail the test, you're going to get a painful electric shock. And they pasted big electrodes on people's legs and threatened them with shock - they never actually shocked anyone - but the threat as compared to money made no difference.

THE COURT: Anything more, Mr. Good?

MR. GOOD: Yes, just quickly.

Q Dr. Honts, you were questioned on cross-examination about the footnote on page 19 of your initial affidavit. And just to save time, this is the questions about your being critical of this survey, the Iacono and Lykken survey. You were asked that, even though it's been published in a peer-review journal, you are critical of it. Could you describe, quickly summarize for the Court what your criticisms of that are.

MR. JALELIAN: Objection.

THE COURT: I'll allow it.

A Well, I have a number of concerns about the Iacono and Lykken survey.

One concern I have about it is that the sample of people who responded to it reported themselves as being very uninformed about polygraph. On average, they had read only two and a half articles, approximately two and a half articles, about the polygraph. There are hundreds of articles on the polygraph. And not only read, but that also included attending meetings where talks were given, reading sections in books, and so on. So they have two and a half exposures to the polygraph. So to begin with, they're not very well informed.

And then Iacono and Lykken preambled their survey with an example about O.J. Simpson taking the polygraph. And I would suspect that most people have a very negative opinion about O.J. Simpson. And then they followed that with a description of our countermeasure studies, and how effective our countermeasures were, but they put no caveats on that, about the fact that it was a laboratory study.

And so people, when they begin this survey, are told that it can easily be beaten, as our studies did show, but it's in a laboratory setting; and they're given the context of this occurring in the O.J. Simpson case.

Given that, I think the results are not at all surprising, because I think the countermeasure information given to people who are ignorant about the literature, is going to be very impacted.

On top of that, Dr. Lykken is an extremely well known psychophysiologist and psychologist. He's an extremely high profile person, not for the polygraph, but for other reasons, because of his other research, and is a person of high stature in those other areas. And his, the fact that he wrote the survey, and his name appears on the introductory letter is very likely to have created certain kinds of demand characteristics, and given the survey tremendous authority. So I have those kinds of concerns.

There are other things that are more technical that are of concern to me, I'm not sure how they got by the peer reviewers. So, for example, they divide the sample into high informed and low informed, and they try to compare it to our survey, but they use different cut-offs, so they're not comparable.

And then finally, Dr. Amato and I have tried to obtain the Iacono and Lykken data to take a look at them and to reanalyze them, and that's a very common thing in science. And science is considered a public endeavor. In fact, as psychologists, we have an ethical responsibility to make our data public if they're asked for. And so far, Dr. Iacono and Dr. Lykken will not let us see their data. And that causes me a great deal of concern.

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

Q You testified that the word "deliberation" when it's used in a polygraph test, is a word of exclusion, is that what you testified to?

A In this case, I said that's how it's being used, "deliberately."

Q In terms of excluding what?

A Accidental.

Q And it also excludes first-degree murder, are you aware of that? If the acts were not done with deliberate premeditation, Louise Woodward will not be found guilty of first-degree murder, are you aware of that?

THE COURT: Oh, I'm not sure that's an accurate thing to say based on the representation that was made to me earlier in this case as to the Commonwealth's twin theories, unless the Commonwealth is now changing its theory.

MR. JALELIAN: No, we're not, Your Honor.

Q That is one reason why she could be acquitted of first-degree murder, are you aware of that?

A I'm not an attorney, Mr. Jalelian, I'll take your word for that.

Q And you stated that when "forcibly" is used in a polygraph examination, there is some discussion about what "forcibly" means.

A Yes.

Q You looked at the transcript of the interview in this case, did you not?

A Yes.

Q Did you see any discussion of "forcibly"?

A I believe it's there, yes.

Q Now, can you point to it on a page, do you have it?

A I can try.

THE COURT: What's that, Exhibit 7?

THE CLERK: Yes, Your Honor.

Q Doctor, if you could look for an example of an explanation of "deliberately" also.

Q If you could look for an example of an explanation of "deliberately."

A Well, the context of that question begins on page 11 and continues through this discussion of what happened, and then ends on page 12 with the sentence here (indicating), "Other than trying to arouse him on February 4, 1997, did you injure Matthew by forcibly shaking him? Would that distinguish between what you've just described, and what they say you did?"

Q And that is, in terms of -- that's an acceptable definition of "forcibly" for you?

A Yes, because it includes one thing and excludes another.

Q And have you found an acceptable explanation of "deliberately"?

A Not yet.

Q It would be sufficient to put it in a context, in terms of a definition, though, is that the case?

A Yes.

Q And you're confident that that was done in this?

A I am.

Q That's fine, I have no further questions about that in the interest of time.

A I believe it's at the bottom of page 12, but I'd have to sit and look --

Q But it would have to be in some type of context in the --

A Yes.

Q -- course of the pre-test interview?

A Yes.

Q And are you aware of whether this was solely a directed-lie question with only directed-lie-relevant questions?

A Yes, that's my recollection.

Q And we've already gone over the article that there were field studies, "The Validity of the Directed Lie Control Question," that would be tab four to Exhibit 2 in the "Journal of Police Science and Administration," do you recall that?

A Yes.

Q And do you recall -- that was a field study, was it not?

A Yes, it is.

Q And do you recall writing in that, saying, among other things, "It is not known whether an examination with only directed-lie control questions would be valid. Such a study is currently underway in our laboratory to explore further potential applications of the DLCQ. Until those data are available, the DLCQ should be used with caution in applications beyond those described in this study"?

A Yes.

Q And do you still share that belief?

A Yes, because it's -- well, no, because this "other data" are in.

Q And have you published anything that said that this was incorrect, or that you've changed your view of this?

A Well, we published the results of the other study.

Q I understand that. But when it says, "It is not known whether an examination with only DLCQ would be valid," do you still stand by that?

A No.

Q Okay. And have you now stated that an examination with only DLCQ is valid?

A Yes.

Q And where is that?

A That's in the Horowitz study.

Q And is that part of the submission, is that published?

A Yes. I think it's with my second affidavit.

Q And do you say affirmatively the opposite?

A I don't recall.

Q Okay. Do you recall if you referenced this article that I just referenced in that new article?

A Oh, I'm sure I did.

Q And are you confident in saying that what you learned, what you stated before, is now correct?

A Yes.

Q Okay. The Rovner article, that was not published, was it, in a peer-review journal?

A It was published in a journal that does some peer review.

Q Was the title of it "Polygraph"?

A "Polygraph," yes.

Q It's a professional journal for polygraphers?

A Yes.

Q So it's not predominantly Ph.D. peer reviewed.

A That's correct.

Q And your article, the one you referred to about countermeasures, not the one when you referred to the Rovner article, that was similar to it, that both had lab applications; you're saying that in the lab, it gives you a framework for countermeasures, but you cannot say that it has any validity in field applications.

A The countermeasure did.

Q That's correct.

A I'm saying that we have the same limitations on going from a laboratory to the field with those data that we had on going from the laboratory to the field with the validity data. That it would be very nice to have field data on the countermeasures.

Q I understand. And that is probably the single biggest limitation of the lab: things that happen in the lab are not generalizable to the field.

A Well, we don't know until we're able to do similar studies in the field, which we've done with validity, but not with the countermeasures.

Q But this doesn't change any of your views concerning the lab data about a prosecution, or the false negative versus the false positive.

A No, because that's supported with the field studies also.

MR. JALELIAN: Thank you. No further questions.

THE COURT: Thank you very much.

THE COURT: All right, who will we have tomorrow?

MR. GOOD: The defense will be calling Dr. Edward Katkin tomorrow morning, Your Honor, first thing. You have his affidavit.

THE COURT: Yes, I have it. And --

MR. JALELIAN: The Commonwealth would call Leonard Saxe.

THE COURT: All right. So I guess we'll finish tomorrow. What we'll do is, we'll finish the evidence tomorrow, and then I'll have argument on Wednesday morning.

MR. GOOD: I'm not sure, Your Honor, could we submit, either simultaneously, or in some sequence, an additional memorandum on this; a written argument might be helpful to the Court.

THE COURT: No, I want to hear oral argument, and then I'll give you some idea of where I'm coming out. All right, so that will be our schedule: We'll finish the evidence tomorrow, and then I'll have argument, oral argument, on Wednesday.

MR. GOOD: Your Honor mentioned a week ago Friday that Your Honor would inform us about the trial date during the course of the last week. And then I learned from the clerk, from Mr. Loiacono, that you would tell us today. I wondered if Your Honor is ready to do that.

THE COURT: What word do you have from the DNA folks?

MR. GOOD: Well, perhaps Ms. Rooney can report on the blood card situation first.

MS. ROONEY: Your Honor, I know that last Monday, the blood card was sent out to the lab in California. I have not heard from defense experts as to what's been done with that blood card since they received it last Monday.

MR. GOOD: Your Honor, my understanding is that the extraction work is ongoing this week.

THE COURT: Well, when was the last time you heard from the people in California?

MR. GOOD: I haven't heard directly, Your Honor.

THE COURT: All right. Well, I suggest that since you have three hours between California and now --

MR. GOOD: I'll do that.

THE COURT: -- that you put yourselves in position, and we'll talk about it at the end of the day tomorrow. Anything else on the progress of the DNA that I ought to know about?

MS. ROONEY: Your Honor, the only thing I'm aware of is, in speaking with Mr. Scheck, he had told me that Dr. Blake was going to be leaving.

THE COURT: Doctor who?

MS. ROONEY: Dr. Blake, who is the defense expert doing the extraction, that he was going to be involved in testifying in two different states both this week and next week. So in the absence of Dr. Blake, there is only one other person who can do the DNA extraction. And my understanding was, with respect to her, that she was about to have a baby. And so if that has happened, and Dr. Blake is elsewhere, then there can be nothing that has happened.

THE COURT: Well, you'd better be in a position to report to me on that tomorrow also.

MR. GOOD: Yes, Your Honor.

THE COURT: Anything else about DNA that we ought to know about?

MR. GOOD: No, just that, my understanding is that the stage that we're at is the extraction stage. The next stage is, once the extraction occurs, then it will go on to the other two laboratories.

THE COURT: The extraction is being done at Dr. Blake's laboratory?

MR. GOOD: Correct. And there is a person there -- I don't think that she's not working, I think she's going ahead, and I believe that that work will be done shortly.

THE COURT: All right, well, we'll see. I'll deal with it -- I'll be glad to hear from you tomorrow, and we'll see if we can deal with it then. If not, we'll carry on.

I, Erika Goldberg, an Official Court Reporter and Notary Public in and for the Commonwealth of Massachusetts, do hereby certify that the foregoing transcript, pages 3 thru 328, represent a complete, true and accurate transcription of my tape-recorded notes, taken in the matter of Commonwealth versus Louise Woodward taken on July 14, 1997 to the best of my knowledge, skills and ability.

THE FOREGOING CERTIFICATION OF THIS TRANSCRIPT DOES NOT APPLY TO ANY REPRODUCTION OF THE SAME BY ANY MEANS UNLESS UNDER THE DIRECT CONTROL AND/OR DIRECTION OF THE CERTIFYING REPORTER.