Dr. Katkin's July 15^th Polygraph Testimony

THE COURT: Good morning.

MR. GOOD: Good morning, Your Honor.

MR. JALELIAN: Good morning, Your Honor.

THE COURT: All right, who's next?

MR. GOOD: Edward Katkin, Your Honor. If Your Honor please, Mr. Honts' plane leaves later today, and we wondered whether he could remain in the courtroom since he's now testified, to observe the proceedings.

THE COURT: Any objection to that?

MR. JALELIAN: I would prefer that not to be the case, but Professor Saxe is also here. I have no problem if Professor Saxe is permitted to stay, if Professor Honts --

MR. GOOD: But Professor Saxe hasn't testified. The purpose of sequestration is to keep his testimony uninfluenced.

MR. JALELIAN: I believe the purpose of sequestration is to keep the testimony of one side uninfluenced. His testimony is not going to change.

THE COURT: We're not going to get into an argument about this. Under the circumstances, I think Professor Saxe should leave, and I think Professor Honts can stay.

MR. GOOD: Thank you.

MR. JALELIAN: Your Honor, the Commonwealth is objecting to the testimony of Professor Katkin. I sent a letter to Mr. Good on July 10th, when I first became aware that he would testify as an expert witness. First, I don't think four days is, five days, is a sufficient time to gather the information necessary to cross examine an expert witness.

Second, if he's permitted to testify, the Commonwealth would like the opportunity at least to either present by affidavit, or present by live testimony, another witness who has the same qualifications and background as Professor Katkin. He is somewhat different from Raskin and Honts and Saxe, he's a different type of witness, and I just wanted to put that on the record.

THE COURT: What do you mean "a different type of witness"?

MR. JALELIAN: He has a different background, a different branch of psychology, and it's just different.

THE COURT: Well, today and tomorrow and yesterday were the days we set aside for this particular investigation. Mr. Good, is there some reason why you found it impossible to pencil your complete starting lineup?

MR. GOOD: The answer is, Your Honor, that I gave notice as soon as we learned that Dr. Katkin would be willing to testify.

THE COURT: No, that's not a satisfactory answer, Mr. Good. Dr. Katkin didn't drop out of a tree.

MR. GOOD: No, he didn't. Of course not.

THE COURT: So you must have been contemplating Dr. Katkin sometime before Dr. Katkin said he would testify.

MR. GOOD: Exactly. And Dr. Katkin has never testified about this before, Your Honor. So we --

THE COURT: Excuse me. Not only must you have known that you intended, if you could, to get Dr. Katkin to testify, not only must you have known it sometime before, but I don't know any reason why you could not have brought, either to Mr. Jalelian's or Ms. Rooney's attention the fact, or why you couldn't have brought it to my attention for that matter. We've been meeting at least every two weeks for the last few months.

Now, is there some reason why you didn't say to me, never mind to your opponents, but to the Court, "Judge, I just want you to know that we are contemplating bringing in Edward S. Katkin as a witness. He hasn't yet agreed that he'll testify, but if he will we want to use him." Now, is there some reason why you couldn't have told me that?

MR. GOOD: Yes, Your Honor, because I really did not contemplate calling Dr. Katkin until I had an adequate opportunity to talk to him, and see if, first of all, he was qualified to talk about these matters. Second, that he would say things that were useful to the Court. And as soon as I could determine that, I brought his name to the attention of the Court. I had his name, but there are eight jillion names in the literature here, Your Honor. But I had to speak to him in order to make a determination whether or not he would be of any use to the Court. And I didn't do that adequately, I mean I simply didn't have any opportunity to do that until I did so and found out what he had to say, and then I gave the Commonwealth notice.

THE COURT: That's an articulate non-answer to a very simple question.

MR. GOOD: Well, the very simple question, Your Honor, is that I had the man's name, as I had any number of other names.

THE COURT: Mr. Good, it's a warm day, this is a difficult subject.

MR. GOOD: Yes.

THE COURT: We're all trying to get things done. No need to fence with me. Now, the fact of the matter is that you were thinking about calling Dr. Katkin at some point in the past, is that correct? At some day in the past, whether it's in May or June or whenever, you said to yourself, "Gee, I wonder if Katkin would be somebody good to testify," or words to that effect, or thoughts to that effect, am I not correct?

MR. GOOD: Yes.

THE COURT: Now, when was that?

MR. GOOD: The day, Your Honor? I don't know the day that Dr. Katkin's name came to my attention. But it was shortly before I gave notice. What happened --

THE COURT: Excuse me for interrupting you. But didn't you at that point, on this shortly before you gave notice, which was shortly before these proceedings began, at that "shortly-before" point, did you not say to yourself, "Wow, this is going to cause some problems, because we've been going along, the Commonwealth and I and the judge, on the understanding that certain people are going to testify. Now, I'm bringing somebody new in. And therefore," you would continue to say to yourself, "I bet the Commonwealth is going to object to this. I better get it cleared with the judge first, so the judge doesn't have to take the time from the days he's set apart for hearing evidence, to decide who's going to be allowed to testify." Didn't you say something like that to yourself as an experienced lawyer, experienced in this case, experienced before this judge? Didn't you ever say anything like that to yourself?

MR. GOOD: No, I didn't, Your Honor, to be perfectly honest.

THE COURT: I will take Dr. Katkin's testimony de bene esse.

THE CLERK: May he be sworn, Your Honor?

THE COURT: Yes.

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

THE WITNESS: Edward S. Katkin.

THE COURT: And your date of birth, please.

THE WITNESS: 15th August 1937.

THE COURT: What field is Professor Katkin being offered as an expert in?

MR. GOOD: He's a psychophysiologist, Your Honor, or he's a Professor of Psychology, and one of the areas in which he's taught and published a great deal of work is in the field of psychophysiology. He also would give some testimony that relates to, a comparative testimony in paragraph five of his affidavit, if Your Honor recalls.

THE COURT: No, I do recall, but I want to know what field he is deemed, you are offering him as an expert.

MR. GOOD: I'm offering him as an expert in the field of psychophysiology and clinical psychology, with specific reference to the testing of people for various purposes in those fields.

THE COURT: I don't recall seeing anything in his affidavit to indicate an expertise in polygraphs. Indeed, I recall him explicitly disclaiming any such expertise. See paragraph three for refreshing your recollection.

MR. GOOD: With respect to his experience in polygraph testing, the Commonwealth, there is in evidence the Office of Technology Assessment Study, Your Honor. Dr. Katkin was the chairperson of the OTA study that Dr. Saxe was the author of, he was the chairperson of the Scientific Advisory Panel. So he's had considerable background in the assessment of the polygraph. According to that -- let me just see if I can take a moment, please. "Polygraph Validity Advisory Panel, Edward S. Katkin, Chairman," who was at that time Professor of Psychology at the State University of New York at Buffalo, Your Honor.

So, and other people on that panel included Dr. Raskin, Dr. Lykken, I think those are the only two names that you've heard during this hearing that are on that panel. But I would tender Dr. Katkin as someone whose expertise includes assessment of the polygraph, and the evidence supports that, Your Honor. What he's saying in his affidavit is that he doesn't conduct polygraph examinations, he's not someone whose trade or, he earns no money from conducting polygraph examinations, Your Honor.

THE COURT: It doesn't appear that he's ever conducted a polygraph examination at all.

MR. GOOD: I'm sorry?

THE COURT: It doesn't appear that he's ever conducted a polygraph examination.

MR. GOOD: That's right, and neither has Dr. Saxe.

THE COURT: It doesn't appear that he has evaluated, that is, read a polygraph tracing and formed a conclusion as to deception or truth, is that correct?

MR. GOOD: I believe, subject to the witness answering, Your Honor, I don't know whether that's true or not.

THE COURT: Very well. All right, Dr. Katkin's direct testimony then will be, at the appropriate time, marked Exhibit 8 I believe. Is that correct, Ms. Goldberg?

COURT REPORTER: Yes, Your Honor, Exhibit 8.

THE COURT: You may cross examine.

MR. JALELIAN: Thank you.

Q Professor Katkin, you've submitted a seven-page affidavit in this case.

A Yes.

Q And with that, you've also submitted your curriculum vitae which is approximately twenty-three pages or twenty-two pages.

A Approximately.

Q And is that up to date?

A I believe it was up to date last week, two weeks ago.

Q How did you become involved in this case, the case today?

A I was called by Dr. Good and asked --

THE COURT: "Dr. Good"?

THE WITNESS: Mr. Good. I'm sorry.

THE COURT: No, he may have a degree that --

THE WITNESS: Well, I believe he does have a J.D.

THE COURT: That's also a third degree.

A Mr. Good. And asked if I would be willing, and I said that I would certainly have to think seriously about it because I had never done that before on this issue. And after thinking for some time, reading up on some of the more recent work, and some of my own work that I had not looked at in a long time, I agreed that I would testify to what I stated in this affidavit.

Q And when did that conversation take place?

A I think it was the end of June, sometime toward the end of June. I don't know the exact date.

Q And you indicated that you looked at some of the old work that you have done.

A Yes.

Q And then you looked at some new work.

A Yes. Specifically, I looked at the stuff that I had been associated with in the past, the polygraph.

Q And the new work, what new work did you look at?

A Well, I had occasion to review a controversy that existed in recent literature between Dr. Rosenfeld at Northwestern and Dr. Ted Bashore. I saw some recent papers in the "Journal of Psychophysiology" with which I'm most closely associated, by Horowitz et. al., by Honts et. al. I was aware of. I worked closely with Bill Iacono at Minnesota on a number of things, and so I was aware of Iacono's interest in this also, and I went back and re-read some of his stuff. And then upon reflection, I told Mr. Good I would be willing to make the affidavit I made and show up here.

Q Now, what you just described, that took place obviously between the telephone, the first telephone call from Mr. Good and today obviously, or between that point and your affidavit.

A Yes, yes.

Q And did you have an opportunity in fact to read any drafts of any published book by Iacono and Lykken that is yet to be published? I'm referring to a text, a West publication text?

A No, no.

Q Are you familiar with that at all?

A I know that they're working on something.

Q And are you familiar with how that chapter in the book is being set up?

A No, I'm not.

Q And have you talked to Professor Honts about that book or chapter?

A No, I have not.

Q Have you talked to Professor Raskin?

A No, I have not.

Q Have you read anything by Professor Iacono about that?

A About the book?

Q Yes.

A No.

Q Have you had an opportunity at any point to see anything either similar to that -- maybe this will help.

A Oh, yes, the Faigman, Kaye, Saks and Sanders, I've read that.

Q You've read it. That's not yet in publication though, is it?

A No, I have a preprint of that. But that is not the book you're referring to, is it?

Q No. Well, the Faigman book is what I'm referring to, you've read that?

A Oh, the Faigman chapter I've seen. There is a section in there by Honts and Raskin and Kircher I believe, and then there's the Iacono-Lykken rebuttal, and then there's a rejoinder. Yes, I've read that.

Q So you've recently read that?

A Yes, I didn't understand that's what you were referring to.

Q I apologize. But that is something that you have just read in the literature.

A Yes.

Q And how did you, how was that made available to you?

A I received a copy of the galley proofs of that by Mr. Good's office.

Q I'm sorry, I just didn't hear.

A I received a copy of the galley proofs of that from Mr. Good's office.

Q And that document that you're talking about, is this what it looks like (indicating)?

A Yes.

MR. JALELIAN: Your Honor, I would move to enter this into evidence at this point.

THE COURT: Any objection?

MR. GOOD: No, Your Honor.

Q You've had an opportunity to read that book, or that chapter in the book.

A The chapter, yes.

Q And that helped you update your opinion on the scientific evidence surrounding polygraph?

A Yes.

Q And at some point, you had written, in fact, sometime back, something on polygraph, is that correct?

A Yes.

Q In fact, you wrote a chapter in a book.

A Yes.

Q And it was chapter four of, the chapter was titled, "Psychophysiological Assessment for Decision-Making: Conceptions and Misconceptions"?

A Right.

Q And that appears on page ten of your curriculum vitae, is that correct?

A I don't have my vitae in front of me, but if you say so, I'll accept that.

Q It appeared in a book by Peterson and Fishman.

A Yes.

Q Called, "Assessment for Decision-Making."

A Correct

Q Published by Rutgers University Press.

A Yes.

Q And you also presented that at a Rutgers symposium on assessment at Rutgers in November of 1984.

A Yes.

Q And you essentially presented the findings of the chapter at the symposium, is that correct?

A I essentially presented the chapter at the symposium, and then Dr. Peterson took five years to put it into press.

Q Okay. What's contained both, what you said at the symposium and what's contained in the chapter, is, at the time, what you believed at the time, is that correct?

A Yes.

Q And on page one -- would it be helpful if I showed it to you?

A I don't have it with me, no, so it would be helpful.

Q Okay. On page 108 --

A Yes.

Q -- you indicate, the highlighted portion is, "Psychologists and laypersons alike often assume that because physiological index of a response reflects some basic biological component, it must be the," quote, "'real index' of the construct under assessment. It will be argued here that such reification is a misuse of psychophysiological assessment."

A That's correct.

Q "Psychophysiological assessments may be more useful as indexes of physiological functions than as indexes of psychological functions. The following discussion will address both the process and the content of psychophysiological assessment. In general, the discussion will be limited to noninvasive psychophysiological measures of bioelectric signals from the surface of the body."

A Yes.

Q Now, do you believe that today?

A Oh, absolutely.

Q Now, when you say "psychologists and laypersons," obviously those are self-explanatory terms, "alike," meaning both psychologists and laypersons, "both assume that because the physiological index of a response reflects some basic biological component."

A Yes.

Q Now, by that do you mean, because you can get measurements of, let's say heart rate, is that what that means, "a biological component of a physiological," meaning you can measure physiological responses?

A Right.

Q So you say that, because you can measure physiological responses, it must be, quote, "the real index of the construct under assessment."

A Yes.

Q Now, could you explain what you mean by, "it must be the real index" --

A Yes. If I may, I'm a little embarrassed to be reading that because it's such academic jargon. But what I was saying in a very round-about way was something that you've heard before, which is that no serious person would believe that a change in palmar sweat, or a change in blood pressure, is the lie, or is a lie response. Similarly, no serious person in the field of psychosomatic medicine, which is my primary area of research right now, would believe that an elevated blood pressure is isomorphic with psychological stress.

THE COURT: What does "isomorphic" mean? I want to keep you away from the "jargon."

THE WITNESS: "Isomorphic" meaning is exactly the same as, as psychological stress.

A People tend to think that if you're under psychological stress, your blood pressure will go up. Therefore, if I measure your blood pressure, I can see if you're under stress. That's just totally wrong. It may be the case that if you're under psychological stress, your blood pressure will go up. It is not the case that if I measure your blood pressure, I have an index of your psychological stress.

Q In essence, blood pressure has no correlation to lie.

A No, I didn't say that at all. What I said is, if I measure your blood pressure, it does not necessarily mean that I've measured your lying. If you're lying, your blood pressure may go up.

Q "May go up."

A Yes.

Q But not necessarily must.

A Not necessarily must.

Q Now, when you say, "It will be argued here that such reification is a misuse of psychophysiological" --

THE COURT: R-e-i-f-i.

THE WITNESS: Yes.

THE COURT: Means making a thing out of something?

THE WITNESS: Right.

Q If you could just explain what that sentence means.

A Yes. What it means is, if I can say it in terms that are probably relevant to this hearing, to say that the polygraph measures the lie response would be a misuse of psychophysiology. The polygraph does not measure the lie response. The polygraph measures a physiological response. What that physiological response may be reflecting psychologically has to be inferred from the context in which it occurs in the context of the measurement. Now, I believe that that's the essence of what I was trying to say there.

Q Now, when you say it's a -- I don't want to put words in your mouth. Is it a misuse then to interpret from the data on a polygraph chart a lie, to say that that --

A Well, that's, if I may say so, that's a tough question to answer. It is never a misuse to make an inference in science.

Q Well, is it a misuse of the data to call the charts reflection of a lie?

THE COURT: Excuse me, I'd like to have the somewhat astounding statement - "never a mistake to use an inference"?

THE WITNESS: No. Science is making inferences from data, that's what scientific theory is. The data are just data: what they represent is an inference.

THE COURT: But you don't mean to suggest that scientists don't ever make mistaken inferences.

THE WITNESS: I'm sorry, I didn't hear you.

THE COURT: You don't mean to suggest, do you, that scientists never make mistaken inferences?

THE WITNESS: Oh, no, they often make mistaken inferences. I'm just saying that the essence of science is to make inferences that are useful and that can be validated, but they're always making inferences.

THE COURT: Let me see if I have it straight, and you tell me if I don't.

THE WITNESS: Sure.

THE COURT: What I think you're saying is, that it's an integral part of the scientific method to draw inferences.

THE WITNESS: Exactly, exactly.

A So I think, if one wants to make an inference that, say, a blood pressure response reflects stress, one has to know more than just the blood pressure response. One has to know the context in which the blood pressure response was taken, and one has to have some comparison situation. If I am interested in, for instance, in my research, finding out if psychological stress can cause pathological rises in blood pressure, I have to have a variety of situations that I subject my subjects to, some of which are defined, for better or worse, as stressful and some as non-stressful.

Q And this is exclusive of lying, you're not necessarily --

A Yes, I'm not talking about lying. And then one looks at the pattern of physiological response to different conditions and makes an inference that the stressful conditions may be causing these increases in blood pressure or may not.

Q I'm just, if you could just explain to me again what you're characterizing as a "misuse" of the psychophysiological --

A What I'm characterizing as a "misuse" in this context, is those professional polygraphers, of whom there are many, who think that when they see a change in the physiological response on the polygraph, that that is ipso facto a measure of a lie. That is simply a misuse.

THE COURT: I think what the witness is telling us is, that the term "lie detector" is a misnomer.

THE WITNESS: Exactly.

Q Now, further on in the article you indicate on page 122, "There is little doubt that polygraph examinations using the control question technique applied to specific incidents can detect deception at a rate better than chance."

A Yes.

Q "Chance" being fifty-fifty.

A Right.

Q "Whether one would want to make serious life determinations in view of the observed false positive rates is a political rather than a scientific decision."

A That's right.

Q "Nevertheless, there is no other area of applied psychophysiology where we even have access to data such as these."

Now, you were only prepared at that point to say that it's "better than chance," is that correct?

A Yes.

Q Do you agree or disagree with this statement now?

A No, I agree with that statement.

Q That it's still, it's only better than --

A No, not "only better," better than chance means it's significant, yes. In the scientific sense, when you say "something is better than chance," you mean it's statistically significant.

Q But in the non-scientific sense, "better than chance" is fifty-fifty.

A I wasn't writing in the non-scientific way.

THE COURT: Well, let me see if I can --what I think the witness is saying is, the polygraph can be a help.

THE WITNESS: That's right. That scientifically, when one says "it's better than chance," it means it can explain variance that could not otherwise be explained.

Q Now, jumping back to what we were talking about, the "misuse" application, and you're talking about the lie detector is not a lie detector. Would you agree or disagree with the following statement: "That it is a scientific fact that a person's blood pressure goes up when they're telling a fib"?

THE COURT: "Fib" being defined?

THE WITNESS: I think I understand what a "fib" is.

A Again, I cannot say yes or no to that. It is a scientific fact that sometimes a person's blood pressure goes up when they tell a lie, in some people in some times. The problem is --

Q Then it wouldn't be a scientific --

THE COURT: Let him finish. "The problem is"?

A The problem is, that unless one has a proper comparison to that person's blood pressure response in other situations, one doesn't know if it's unique to telling a lie. One has to construct a kind of mini-experiment in which you have good reason to believe someone is lying. And then you compare what their blood pressure response is in that situation, to other situations where you can't be sure if they're lying. And you see how you make a comparison. And based on the magnitude of the differences, you make an inference about whether the person is lying on the question about which you're not sure.

Q But the statement that I read to you, that it is a scientific fact that a person's blood pressure go up, it seems to be a general statement.

A Yes.

Q And would you agree with that as a general statement?

A I would agree with it as a statement that is generally true, but not a hundred percent true.

Q Then it would not be a scientific fact, would it not?

A Of course it would.

Q It would be as accurate a scientific fact as gravity, let's say?

A No, I don't think that psychology is quite at the level of physics.

Q Now, you also indicate in your article that, quote, "Every polygrapher knows that there is no physiological correlate of lying - only physiological correlates of subjective responses to the act of lying. In order to use physiological indexes of lying, then, the polygrapher must be as much an intuitive, artistic clinician as a scientific technician. The final decision about the subject's veracity is made on the basis of finely tuned judgments about relative degrees of responsivity to carefully crafted questions that are individualized."

Do you still agree that a polygrapher who administers a test has to be "as much an intuitive artistic clinician as a scientific technician"?

A No, I agree with that much less. I believe that statement is dated.

Q Have you published --

THE COURT: Can I see that article?

MR. JALELIAN: I have one copy, Your Honor, I apologize.

THE COURT: No, no, I'll give it right back to you.

A I don't --

THE COURT: Just one minute.

THE WITNESS: Okay, sure.

THE COURT: That statement seems to be saying, now that I've read it, it seems to be saying that, although it doesn't say it explicitly, and I want you to correct my impression if it's wrong - it seems to be saying the polygraph determinations, or the use of the polygraph in the determination, requires something of the same sort of skill that a diagnostician has to have when he or she is taking --

THE WITNESS: Yes.

THE COURT: -- in data from various measurements on a patient, and then reaching a conclusion as to what's ailing the patient.

THE WITNESS: Right. I think that's a fair assumption. But I think that I've changed my opinion to some extent since then, both about polygraphy and about medical diagnosis, because of the improvements that I believe have been made in standardizing scoring procedures, and in, I think, the basic research efforts, led primarily by Dr. Raskin, to develop a very well standardized numerical scoring procedure that stipulates profile analysis of the responses and takes away from, if polygraphers follow the system, and they should, takes away from them some of the vagaries of their own personal subjective judgment. I believe that's improved the process, and I believe that's why in my affidavit now I took great pains to talk about "properly qualified and trained polygraphers." I am not a fan of most of the commercial polygraphers who are out there in the field. I do have confidence in polygraphy used according to appropriate scientific methods and controls.

Q Do you have confidence -- you indicated that you've now changed your views of that that you published in this paper, in this chapter in this book.

A On that specific issue, I now have more confidence in the objective basis, and don't feel --

Q And you indicate --

THE COURT: No, let him finish.

MR. JALELIAN: I'm sorry.

THE COURT: Go ahead. "And" what?

A I feel that proper polygraphy today is better done with less of the clinician's art and more of the quantitative numerical analysis that's available and that's been developed.

Q And you indicate the conclusions of that, that you just stated in your affidavit, is that correct?

A Yes.

Q Now, is there anything that you've written between this document that I just quoted you, and your affidavit that indicates, that's been published, that indicates your change of heart?

A That I have written?

Q Yes.

A Not that I recall. This is not my primary area of research.

Q I understand that. But you wrote a chapter of a book, and you indicated a certain point of view, is that correct?

A Correct.

Q And now you've changed that point of view for the purposes of this affidavit.

A Yes.

Q And articulated in the affidavit.

A Yes.

Q And is this the first time that you've articulated that point of view in writing?

A Well, I suppose if you consider the affidavit "in writing," yes.

Q I do. This is the first time that you've ever written down and been -- have you ever presented any papers contradicting this?

A Well, may I correct that? I think that my confidence in the objective scoring of the polygraph is written down in that paper.

Q It's reflected in there?

A I believe so, yes.

THE COURT: In which paper?

THE WITNESS: The one he's citing. The only change that I'm talking about now is one of emphasis on the art versus the science, where I now feel, I'm less committed to the idea that the polygrapher has to be an artist.

Q If you could show me where you indicate --

THE COURT: No, no. I'll allow you, of course, to continue whatever cross-examination in appropriate ways you wish. But what the witness has said, at least what I understand the witness to say is, yes, you've correctly interpreted, and so has the Court correctly interpreted what he said in that printed document that's in front of him, which has not yet, though I expect will be, introduced as an exhibit. He is saying that he's changed his mind.

Now, if there's something more that you're saying, Doctor, please let us know.

THE WITNESS: No.

THE COURT: And, of course, you may cross-examine appropriately, Mr. Jalelian.

MR. JALELIAN: Thank you, Your Honor.

Q That's correct, that you have changed your mind?

A On that issue, yes.

Q And from the time of this article, until the time you wrote the affidavit, how many articles have you published?

A I don't keep count. But we're talking about --

THE COURT: Well, excuse me. We're always glad to know of somebody's publication record, but what we're talking about is how many articles have you published on either polygraphy or physiological response to stress.

THE WITNESS: On polygraphy specifically, I suspect none. On physiological responses and their measurement, in the last decade, thirty, forty, fifty, I don't know.

Q And none of them, in any of them have you contradicted this view, or indicated that you've changed your mind?

A That's a tough question for me to answer.

Q Have you written down that you've changed this point of view?

THE COURT: No, that's a very different question.

A No, I don't think I've written about the polygraph.

Q Have you written down that you've changed your mind on this issue, or changed this point of view?

A Which -- can you be more specific?

Q What we were talking about, the art, about the artistic --

A Which point of view?

THE COURT: You just summarized --

A On the relative weight of art versus science, no.

THE COURT: What you've said is, in the article, that use of the polygraph, that is, the results of the polygraph, are interpreted in what we might say is a subjective as well as an objective way, the artistic approach as it were.

THE WITNESS: Yes.

THE COURT: And you said that since you wrote that, you've changed your mind somewhat, and you're now less inclined to believe that it's artistic, and more inclined to believe that it's objective.

THE WITNESS: Yes, in the hands of --

THE COURT: In the hands of a qualified examiner.

THE WITNESS: Right.

THE COURT: Now the question is, have you ever written anything to that effect, other than in the affidavit?

THE WITNESS: No, not that I recall.

Q So the first time that you've indicated that you've changed your point of view on this polygraph issue, on this issue, is in the affidavit in this case.

A I don't think that I've indicated in the affidavit that I've changed my mind on that issue. That issue doesn't arise in the affidavit.

Q Okay. When you indicate on the last paragraph of the affidavit, "It is my opinion that the protocol which is followed when a properly trained and experienced polygraph examiner administers the directed lie polygraph examination to a suspect in a criminal case yields results that allow a determination of which set of questions has elicited a greater distress reaction, and thereby permits a scientifically valid inference to be drawn concerning the truthfulness or deceptiveness of the subject's answers to the relevant questions," doesn't that somewhat undercut the view of the polygrapher as an artistic clinician?

A I suppose so.

Q Thank you.

Now, doesn't that also contradict to a certain extent the point of view where it's a "misuse of psychophysiological assessment," that statement that you made earlier?

A No, not at all, they are completely consistent statements.

Q They're completely consistent statements, that from one point of view it's a "misuse of psychophysiological assessment" --

A I'm sorry, sir. What I said was a "misuse" was the reification, the belief that there's a lie response. What I said in my affidavit is that there's no lie response, that there are subjective distress responses, and that a polygrapher has to construct, in a properly controlled structured exam, will make a scientifically valid inference about deception. Those are not inconsistent statements at all.

THE COURT: Come up to the sidebar.

THE COURT: I don't want to interfere in this, I'm asking questions because I'm trying to get clear on a subject which is hardly Dick and Jane Go to School. But the question which I'm sure a lot of people have is, that is anybody who's heard this testimony, what made him change his mind. Now, I'm not going to ask it.

MR. JALELIAN: Thank you, Your Honor.

Q In your article, you summarized on page 123, you have a "Summary." And you say, "The data on psychophysiological assessment suggests that we are a long way from being able to use autonomic or central nervous system response index to make diagnostic decisions with confidence." Do you stand by that proposition?

A Yes, but you did take it out of context.

Q I haven't finished yet. But do you agree with that sentence? Did you change your mind about that statement?

A No, I haven't changed my mind about that.

Q And when you say "with confidence," are you ascribing for the purposes of this chapter, any statistical number; or, are you just saying confidence in your --

A If I may, I can't give you a yes or no to that. What I'm saying is that, that statement referred to the broad field of psychophysiological assessment. If you've read the chapter, you know that I was addressing not just polygraphy, but schizophrenia assessment, sociopathy assessment, anxiety assessment. My concluding statement was referring to the whole field. I also said in that chapter, that of all the areas that you address in this chapter, there is none that has the quality of data that the lie detection and deception has, that no other area had approached the quality of data.

Q Do you mean "as high as" or "as low as" quality, poor quality or high quality?

A No, high quality, high quality of data as the detection and deception. So that when I was saying that the field is in trouble, I was talking about clinical psychological use of psychophysiology to try to diagnose things like schizophrenia, things like sociopathy, things like anxiety disorders, and it's a miserable track record. And that the area of detection and deception, which is not normally thought of as psychiatric, was an area of applied psychophysiology where the scientific evidence was stronger, though far from perfect.

Q So you wouldn't characterize it as a miserable track record for lie detection.

A No, it's the best we have in this field.

Q In this field.

A Yes.

Q Where the other -- how does it compare to other scientific fields, such as physics?

THE COURT: He said earlier that psychology is not at the certainty level of physics.

A Psychology as a discipline has not achieved the status of physics as a refined, almost complete science.

Q Even remotely, isn't that fair to say?

A Except in certain areas.

Q But lie detection is not one of them, is it?

A No, I don't think lie detection is at the level of Newtonian world mechanics, no.

THE COURT: Of Newtonian?

THE WITNESS: Newtonian mechanics. I don't think we've gotten there yet.

Q When you say "we," you mean?

A Psychologists.

Q The next sentence you say, "Even in the area of lie detection, where the criteria are more easily defined, and predictive validity more easily tested, we are plagued with high rates of both false positives and negatives. In the area of mental health assessment, the field has not even reached the point where the assessment of validity is feasible."

A Exactly.

Q So, in effect, are you saying it is possible to test the validity of lie detection, but it is not even possible to detect the validity of other mental health assessments, is that what that says?

A That's what I said, yes.

Q Simply because you can test it doesn't make it reliable, isn't that correct?

A Well, reliability can be assessed, that's a relatively easy task.

Q But that doesn't -- it can be assessed, but it doesn't mean that it can be, it is reliable. Just because something's a science --

THE COURT: Hold it, hold it. Start one sentence one question if you would.

Q Simply because it's testable, the validity is testable, doesn't make the underlying theory reliable.

A Could you say that one more time?

Q Simply because the underlying theory, the validity of the underlying theory is testable, doesn't make it reliable.

A You're mixing --

THE COURT: Well, look, it's very simple. I believe the earth is flat. That's an assertion, that's a theory. It's testable, but it doesn't make it valid.

A You can invalidate it, but his belief that the world was flat could be perfectly reliable. We have to define terms, don't we? Reliability simply means that something is stable, it doesn't mean it's correct, just stable.

Q Are you familiar with the term "habituation"?

A Yes.

Q Now, in your article you discuss "response habituation and long-term assessment," is that correct?

A Yes.

Q And in it, you say, "In psychophysiological assessment, the phenomenon of response habituation presents difficulties on two levels: physiological and psychological."

Now, does that mean that there are two types of habituation, one physiological and one psychological?

A I'm thinking about that.

Q Well, while you're thinking about that, I'll ask you another question.

On the physiological level you write, "Even an aversive stimulus, such as an electric shock, may elicit smaller responses after several trials."

A Absolutely.

Q Meaning, as a physiological response, you can even be subjected to electric shock and essentially feel it less or respond to it less over time.

A Absolutely.

Q Now, when you say "psychological," the psychological half of that, can you correlate that to, for instance, telling a story: if you tell a story over and over and over again, you have a type of habituation similar to the electric shock, meaning you don't have as much of a personal reaction within yourself to telling that story?

A That's not exactly what it means.

Q Is that assertion that I just made valid?

A It's not testable, that's the problem. Could I try to rephrase it?

Q If I may, you're telling me that you can test physiological responses by a machine. Polygraph tests physiological response.

A Yes. And you can test psychological responses, behaviorally.

Q And you can also, that's the assumption that you make in the polygraph machine, isn't that correct, that the physiological responses have some correlate to a psychological effect, that is lying.

A That's not exactly the way I see it, no.

Q Well, you draw a conclusion, a polygrapher draws a conclusion based on what they interpret to be physiological responses. And they draw a conclusion about the person's psychological state, which is lying.

A I don't.

Q But do you share the belief that polygraphers do?

A I share the belief that too many polygraphers do, but not competent ones.

Q You don't share the belief that I just articulated, where you cannot draw an inference about the physiological, about the psychological state, meaning whether or not a person is lying, from the physiological responses, is that what you just testified?

A No, I didn't say that. Draw an inference, I disagree with you, that's the critical issue on which I think you and I are not understanding each other. The polygrapher must draw an inference from the data, the data are the physiological responses.

Q And you said that you don't.

A No, no, no, I said I make an inference. I would make an inference, yes.

Q So when you're saying that you can make the inference about the psychological state, meaning whether or not it's a lie, based on physiological responses.

A Based on the physiological responses to a properly conducted controlled interview, yes.

Q Now, you talked about habituation to physiological, physiological habituation.

A Yes.

Q Can you, therefore, also have psychological habituation?

A Yes, you can, but not the way you described it, that's all I'm saying.

Q Could one form of psychological habituation be -- strike that. A person has a surprising event, something happens to them.

A Right.

Q They get into a car accident, let's say. The first time they tell that story, in your experience, and even in common sense if you want to go that far, the person tells a story and they're excited, their heart rate has increased, let's say hypothetically. Is that feasible?

A It's feasible. I don't know of any data to support it, but it's feasible.

Q Well, when someone tells a story for the first time, do they tend to be more excited when they tell it that you know of?

A I honestly don't know the answer to that.

Q Based on your psychological extensive training and experience, does it make sense that, if a person has an excitable event, and then they communicate that, what has happened in that excitable event, the effect that it's had on them will be communicated to another person? They'll tell it quickly, they'll tell it with some emotion because it's had an emotional effect on them. Is that fair to say?

A I don't know. It depends when they tell it, to whom they tell it, the circumstances in which they tell it.

THE COURT: I think the more relevant question, at least for the present inquiry is, if you tell a version of an event repeatedly, does that somehow change you psychologically so you don't have the same physiological responses that you would if you were telling the story for the first time, assuming always that the story is not true.

THE WITNESS: Assuming always that the story is not true. I honestly don't know the answer to that.

Q But you're confident that you know the answer that you can habituate to electric shock.

A Yes. And I know that the physiological response to electric shock habituates with repeated presentations. But there's a critical difference between the two scenarios you're describing.

Q You're not confident in testifying or saying that there is a habituation psychologically.

A No, I believe that there are psychological, there is such a thing as psychological habituation. I believe it can be assessed. You're asking me a very specific question, about whether someone's voluntarily repeating a story leads to habituation, and I don't know the answer to that. That's different from what I do know about habituation. What I do know about habituation is that --

Q Is that consistent, is the repetition of a story as --

THE COURT: Let the witness finish, please.

A What I do know is, if you give someone an electric shock, a painful electric shock, they'll give you a large physiological response. And if you ask them to fill out rating scales on how painful it was, they'll rate it as painful. If you repeat that same level of electric shock over time, their physiological response will decrease, and their self-reported ratings on degree of pain experience will decrease. That's the physiological habituation and the psychological habituation.

Now, that I think is lawful in psychophysiology. That is not the same as asking someone to produce information. What we're talking about is habituation of the sensory system to information that's impinging on it. The scientific study of habituation of reactivity to sensory stimulation is actually one of the few areas of psychology that's as well established as physics.

Q In terms of the electric shock.

A Yes, or live noise, or other kinds of sensory stimuli. But to extend that to whether one habituates equally to the production of verbal information, I don't know of any data on that.

THE COURT: There's been no study in which, for example, somebody -- the subject is given an episode which is not true, was told an event.

THE WITNESS: Yes.

THE COURT: And is told to repeat the event. And the person is rigged up to a --

THE WITNESS: Polygraph.

THE COURT: -- polygraph. And the person's reaction is charted, the first time the person tells the story, and the second time, and the third time, and so forth. So far as you know, there's never been any work of that sort?

THE WITNESS: I don't know of any. Because the way the polygraph test is constructed, people are not asked to tell stories, they're asked to say yes or no to discrete questions. And so the question of whether someone's responses to telling a story, there's no data on that.

THE COURT: All right, let me change what I was asking you was my error. I didn't mean to say "tell a story," I mean a person is told, "The following fact is false, but we want you to say that it's true."

THE WITNESS: Right.

THE COURT: "So that you will answer yes when you're asked, 'Is this true?'"

THE WITNESS: Yes, I understand.

THE COURT: And then that same question is asked over and over and over again, and the response is charted. Has there been any work of that sort?

THE WITNESS: I believe that there has; I'm not closely familiar with it.

Q Do you know the general conclusions?

A No, I honestly don't. I do know that, in general, if you repeat the question long enough, you know, frequently enough, you'll see some habituation of the response to it.

Q Psychological habituation.

A Physiological habituation.

THE COURT: Physiological. The machine doesn't measure psychology, it measures --

A The machine is not measuring psychological responses. Physiological habituation.

Q To the question, not -- that's fine.

A Yes. That's why I think, why I feel so strongly that a properly conducted control question polygraph must be used, because if there's going to be any habituation to repeated questions, there could be habituation to both the relevant and the control questions.

Q Now, the control questions pose less of a threat than the relevant questions, do they not?

A It depends.

Q Presumably, the threat about being incarcerated either for the rest of your life, or in a death-penalty case, being executed, poses a greater threat to you than whether you did some other act for which there is not necessarily a crime.

A To me, yes, but not necessarily to everybody.

Q To a rational individual?

A You're making a theoretical assumption that I think has some plausibility to it, but the experimental data don't support it.

Q They don't support it. Do they contradict it?

A Yes.

Q Now, you gave some testimony in 1987 before the Subcommittee on Employment Opportunities, Committee on Education and Labor in the U.S. House of Representatives, is that correct?

A Yes.

Q Now, that was on March 5th, 1987, do you recall that?

A Yes.

Q And that was for employment training polygraph, is that correct?

A Absolutely, yes.

Q And you talked about "examiner training," is that correct?

A Yes.

Q And you indicated, "the tenuous nature of the theory underlying the test, and the lack of data, are only two of the problems. It is clear that those giving polygraph tests often have limited training and expertise in psychology and in the interpretation" --

THE COURT: Slow down, Mr. Jalelian. On behalf of Mrs. Goldberg, I implore you to slow down.

Q "It is clear that those giving polygraph tests often have limited training and experience in psychology and in the interpretation of psychophysiological measurement."

A Absolutely, I stand by that.

MR. GOOD: Your Honor, I've raised this objection before. This is about screening, it's about a different application.

THE COURT: No, I'll allow cross- examination of this witness.

MR. GOOD: Just so the record is clear, that this is about screening.

THE COURT: Yes, I understand that.

Q You indicate, "The tenuous nature of the theory underlying the test and the lack of data, are only two of the problems."

A For employment screening, yes.

Q The theory of the test for employment screening?

A Yes.

Q Now, this was sworn testimony before Congress, is that correct?

A As I recall, it was.

Q And it doesn't say for employment screening, it says, "the underlying theory of the test."

A The testimony --

Q Sir, yes or no, it doesn't say it?

A Yes or no. Yes, it says it.

Q Fine. Now, the theory of the test, the theory of the polygraph test hasn't changed since 1940, has it? The theories underlying the test.

A I don't know if I agree with that, no.

Q Well, you would agree that the theory underlying the test is that you have a response to a control question, and a response to a relevant question, and you compare the two responses. And based on those physiological responses, you make an inference and an assumption about the psychological state.

A But with employment screening, there are no control questions.

Q There are no control questions.

A There's no way to establish in screening for the future. In employment screening, the polygraph test is used to predict the future, not to describe a task. There isn't any possible theory that I know of in psychology, that allows us to predict the future.

Q Did you indicate that in your testimony, that the theory of the test was different?

A As I recall, I was requested to testify specifically about employment screening.

Q Sir, did you indicate in your testimony that the theory of the test was different for certain things and not others.

MR. GOOD: Your Honor, in fairness --

THE COURT: I think I understand the point.

MR. JALELIAN: Thank you, Your Honor.

THE COURT: Just so we sum it up so we don't get hung up: It is a fact, and the witness admits that he said what he said to the committee. He says that he said it to the committee in the context of employment screening, which has a different purpose and, therefore, a different underlying structure, if I can put it that way, than the kind of polygraph examination we're talking about here.

THE WITNESS: Thank you, Your Honor.

Q Did the OTA Report only deal specifically with employment screening?

A No, it did not.

THE COURT: I have a question about something that's puzzling me. I will just state it now, and Mr. Jalelian or Mr. Good can weave it in if they want, so I'm not asking you, Dr. Katkin, to respond.

On the bottom of page 3 of Dr. Katkin's testimony, he says, "The data show that confidence in the accuracy of the results of a polygraph examination is acceptably high by usual psychological standards, if the test is administered by a properly qualified and trained polygraph examiner using the controlled question technique or the directed lie technique."

I am not entirely clear as to the meaning of the phrase "is acceptably high" and "usual psychological standards." I state that to you because it may be of use to counsel to know the confused state of the trier's mind.

Q Could you indicate what you mean by the phrase "acceptably high by usual psychological standards" as it appear in paragraph four, subparagraph C of your affidavit?

A Yes. What I meant by that is that the data that I am familiar with indicates that the rate of errors in assessment - say approximately ten percent false negatives, maybe slightly higher in false positives - is considerably better than in the weight of errors that I'm familiar with in other areas of psychological assessment. And which are generally treated with somewhat more respect in the scientific and legal community than polygraph testing is. So all I was saying was here, that I don't see any reason based on the scientific data to relegate polygraph information to lower status than other kinds of psychological information which is accepted by society.

Q What do you include in that?

A I include in that a variety of issues, psychiatric diagnosis being a major one, assessment of therapeutic progress in psychotherapy, questions, diagnostic assessments of whether people are malingering or not malingering, diagnostic questions of which of two parents in a custody case is likely to be the better parent, in which we often see psychological testimony that's utterly useless, and so on. And I'm saying that the database, the quantitative objective scientific database for the determination of deceptiveness, using proper techniques and polygraphy, is higher than, better than, scientifically, than what we usually see in psychology. And that it's statistically acceptable. And it's the results of the mass of the studies show statistically significant rates of correct assignment.

Q None of the items that you just indicated deal with truth though, is that correct, they deal with diagnosis of mental illness, let's say, for example.

A No, I don't know that I would agree with that. Is this person not guilty by reason of insanity, or is he guilty -- is it true that he is incapable of defending himself? That's a question of truth. And psychiatrists testify on that all the time without any --

Q Psychiatrists do not testify in fact though, on whether or not a person at a specific time has told the truth, is that correct?

A I don't, I couldn't say that that's correct.

Q Well, you said that they testify on the truth of other things. Do you know whether or not they testify as to the truthfulness of an individual at a certain point? Have you ever heard that happening?

A In this context, no, I suppose I have not heard that.

Q And, in fact, that's exactly what the polygraph examiner is going to testify to, the truth of the criminal defendant at a certain time.

A It's not obvious to me that that's what a competent polygraph person would testify to.

Q Well, they're going to testify that responses on a certain test were not deceptive or were deceptive -- clearly, if it's a defense offered, they're going to be not deceptive, is that correct?

A Yes, but they're not testifying to the ground truth, they're testifying to an inference they're making about the probability that this person is telling the truth or not telling the truth.

Q But, in effect, they're going to take the witness stand, and they're going to say, "I administered the test to an individual. I asked certain questions. The questions are relevant questions about the crime and culpability." And they're going to say, "that the person gave a response that I tested and marked as truthful."

THE COURT: No, let me tell you, I'm a long way from deciding whether or not the polygraph evidence is going to be admitted. But I have done considerable thinking about what polygraph evidence would be admitted for, if it were admitted. And I can tell you that the witness will not be permitted to say, the witness, that is, "The defendant, in my opinion, was telling the truth when she said X," nor for that matter, if there were a government polygrapher with the opposite view, would the witness be permitted to say, "In my view, the defendant was not telling the truth."

What the person would be permitted to testify is, "I asked certain questions, and I got certain responses, which compare with data from other tests of other people published, et cetera, matches or falls within a range of truth or falsehood," as the case may be. And the jury would be very carefully instructed, of course, that the witness cannot express an opinion as to whether the defendant was telling the truth or not telling the truth. The jury may use the polygraph evidence only for the purpose of evaluating the testimony of the witness. And as everybody will recall, we set as the ground rules at the beginning, with the assent of all counsel, that polygraph evidence would not be admitted unless the defendant herself testified under any circumstances. So I think it's important to realize that the witness will not be allowed to give an opinion, in words or substance, that the witness, polygraph expert, believed or didn't believe that the defendant was telling the truth or was lying.

Q Getting back to the article that you wrote, chapter four, when you stated that, "a polygrapher must be as much an intuitive artistic clinician as a scientific technician." And then you indicated that you've changed your mind about that, but you have not published anything.

At what point did you change your mind about that?

A When I became aware of the improved procedures for numerical scoring and, frankly, the recent developments which have come out of mainly Kircher's laboratory in Utah.

Q When did you become aware?

A Oh, I've been aware of that for a number of years. I can't give you a specific date.

Q Okay. So it's been a number of years since --

A Since 1980 -- well, remember, this has a 1989 publication date, but I presented this paper in 1984.

Q Well, in 1989 did you share that view that you wrote in the article? When it was published under your name, did you believe it?

A I can't, I can't be sure of that. You know, the chronology is difficult.

THE COURT: Doctor, are you saying to me that you permitted serious academic publication of something that you no longer believe?

THE WITNESS: No, I'm not saying that. What I'm saying is, that I presented these data in 1984. And there was a variety of publication delays that led to its finally actually hitting the press in 1989, long out of my control because I had signed over the paper to Dr. Peterson. It was his property as it were.

Q Did you believe it when it was -- oh, I'm sorry.

A I would say to you that, between the time I wrote that, and now, that improvements in computerization and numerical scoring have persuaded me that competent polygraphy is less dependent, should be less dependent, and in the proper hands is less dependent on subjective artistic interpretation, than it is on objective, quantitative scoring.

When that became clear to me, I can't tell you exactly.

Q Sir, the first question I asked, when this was published --

A Yes.

Q -- did you believe what you wrote?

A Yes.

Q Okay. So in 1989 you believed it. In 1990, did you believe it?

MR. GOOD: Your Honor, I believe the witness has --

THE COURT: No, it's difficult to say, very few of us have epiphanies of that sort, although, to get back to Isaac Newton and Voltaire's story about the apple, maybe that was one. But the question really is quite relevant, because you have expressed a change in view.

THE WITNESS: Yes.

THE COURT: A significant change in view. And the question is, about when did you have it, and what caused you to have the change. Now, you said that you observed certain data from Kircher's laboratory at the University of Utah.

THE WITNESS: Yes.

THE COURT: Do you have some idea - I guess that's Mr. Jalelian's question - about when that happened?

THE WITNESS: Yes. I would say in the 1990s.

THE COURT: Well, if it went to press in 1989, it probably was in the 1990s.

THE WITNESS: The 1990s.

Q Okay. Somewhere between 1989 and when you wrote this?

A It's very difficult for me to say on such and such a year my view changed. Views evolve.

Q I understand that, sir, but you've written an affidavit under the pains and penalties of perjury for this case.

A Yes.

Q And this, it's my understanding based on your testimony, it's the first time that you've ever written that your views have changed, is that correct, since the original article was published.

A I don't believe that I wrote that my views have changed, I have never written that, not even in the affidavit.

Q But you've agreed that --

A Yes.

Q -- they show a change.

A Yes.

Q They show, in fact, a massive change.

THE COURT: Let me see if I can help you on this. Do you teach about polygraphy?

THE WITNESS: Yes, I do.

THE COURT: In undergraduate courses?

THE WITNESS: Yes, both undergraduate and graduate courses.

THE COURT: Okay. Do you have any idea when you began to introduce into your courses the view that you now have, as opposed to the view that was in the book, which doubtless is a required reading for your students.

THE WITNESS: Yes, I can answer that with some specificity because I did no teaching at all between 1991 and 1996. So I had no opportunity to introduce it until 1996. And I have introduced this, my current beliefs, in my teaching in 1996.

Q In your curriculum? How have you introduced it, just by lecturing?

A When I cover the question of lie detection in the context of my teaching of courses, I now talk about, and nobody could conscientiously teach it without talking about the controversy that exists in the Lykken camp and the Raskin camp. I describe the history of it. I've discussed the context of how lie detection developed. And I explain to them why it is utterly useless for employment screening, and why it has some utility in the specific incident, criminal investigations. And I talk about the value of numerical scoring and how important it is in all psychological assessment to try to standardize, quantify, and objectify one's assessment. And this is, I think, equally true in medicine, where the goal of the physician is to eliminate the subjectivity and increase the objectivity of the science.

THE COURT: Is the book of which the article that's been the subject of this discussion, is that generally assigned in psychology courses? Have there been many acceptances, or many adoptions of it?

THE WITNESS: That book is not a textbook so I doubt that it's used as a text. That was a book for professionals in the area of assessment.

THE COURT: Well, you do assign readings in professional books, don't you?

THE WITNESS: Oh, yes.

THE COURT: Even to your basic --

THE WITNESS: Oh, I certainly assign my chapters to my students.

THE COURT: Yes.

THE WITNESS: I don't have any data on who else does.

THE COURT: I've been in the business, Doctor.

Q You just indicated that there is a controversy that exists between the so-called "Lykken camp" and "Raskin camp," is that correct?

A Yes.

Q And, in fact, it's a subject of both professional and apparently personal attacks in some of the literature, is that correct?

A Yes, that's what I've heard.

Q And you, well, you've also read the most recent exhibit that was put into evidence with the back and forth, is that correct?

A Yes.

Q And there is, it's fair to say there is a polemic in the literature about the scientific validity of polygraphy.

A I think that's fair to say, yes.

Q Is it also fair to say that, in your opinion, there is no general acceptance based on that polemic of the validity of polygraphy?

A No, I don't there is.

Q There is a general acceptance by Professor Lykken of the validity of polygraphy?

A Oh, general acceptance by Professor Lykken, of course not.

Q And there is Professor Iacono --

MR. GOOD: The term I think that's a misnomer, the question of --

THE COURT: Well, there's --

MR. GOOD: You're talking about across a community, not one individual.

THE COURT: Well, there's the not uncommon division of academia, that is, areas of academia into one camp or another. I need hardly remind you what Henry Kissinger once said about faculty disputes and why they are so vigorous. Carry on.

Q Would you characterize this controversy as one that is pervasive in the literature of polygraph; either you're on one side or you're on the other?

A Well, it depends which "community" you're talking about. In the community of polygraphers, there's really only one side.

Q I'm talking about the community, the scientific community.

A I would think that there's a great deal of heat and very little light. And people do take positions, strong positions, on the issues, frequently without having read anything about it.

Q What I'm talking about is the Lykken versus Raskin.

A Yes. Yes, I think there's a division among people. Some people line up on the Raskin side, and some people line up on the Lykken side. And there's a tremendous amount of distaste between those two people, as you undoubtedly know. And all of that is sometimes the subject of amusing cocktail party conversation at conventions, but does not in my mind bear on the scientific data.

Q Is it also sometimes the subject, if you know, of lawsuits amongst the group?

A I have heard rumors to that effect. I have no first-hand knowledge of any lawsuits.

Q Now, is it fair to say that, when you say "people line up on either side," the vast majority of people who do not make their living by polygraphy, by polygraph examinations, do not line up on the Raskin side, or rather -- I'll rephrase it. That the Raskin side is characterized by people who make a source of income from being polygraph examiners.

A I don't agree with that.

Q You don't agree with that?

A Again, I agree with you that polygraph examiners who make their living at it obviously are going to be on Raskin's side, that's clear. They're not going to be on the side of someone who says you're a fraud.

THE COURT: Or even who says you're wrong.

A That's not the issue, it seems to me.

Q That's my question though.

A The issue is what the scientific data --

Q No, no, that's my question. The issue is not --

A Your question is, do professional polygraphers who make their living at this, are they more likely to be on Raskin's side, and my answer is yes.

Q And are you aware -- you're obviously familiar with the works of Dr. Lykken.

A Yes, oh, yes.

Q You're familiar with the works of Professor Saxe.

A Less so, less so. I mean Saxe wrote the OTA report, I chaired the panel.

Q Did you -- let me ask you this. In terms of your information changing your decision about when you came to this - it may not have been an epiphany - but when you changed your mind about the state of polygraphy --

A Wait a second now, I did not change my mind about the state of polygraphy, I changed my mind about one specific philosophical statement I made about the degree to which a polygrapher has to be an artist. In the OTA report, we reported pretty good results. In my 1989 chapter that you keep citing, I stipulated that the control question technique for detection of deception was pretty damn good, and had only a ten percent false negative rate.

THE COURT: Let's get to the heart of the case.

A So I did not change my mind. You're twisting one sentence --

THE COURT: All right, Doctor --

A -- about artistic, and it's irritating.

THE COURT: Doctor, that's fine, thank you. How do we determine truth for control purposes?

THE WITNESS: You're talking about in polygraphy, not in the philosophical sense.

THE COURT: No, that's the issue, isn't it.

THE WITNESS: How do we determine truth?

THE COURT: Yes, how do we establish a baseline of truth so you can decide if somebody's not telling the truth?

THE WITNESS: Well, there is in the polygraphy field the notion of "ground truth," that one can find evidence for the guilt or innocence, if you will, of the person having done or not done -- you can find hard evidence, other than the person's self report, if that's what you mean. I'm not sure I --

THE COURT: That seems to be a difficulty in all of the literature, that is, that people are forever trying to devise a, either a field test or a laboratory test, in which they can know for sure, without reference to what somebody is telling them, whether certain facts are true. So that then when they inquire of the subject about those facts --

THE WITNESS: Yes.

THE COURT: -- they can make, if you will, an independent determination.

THE WITNESS: In the laboratory, the standard procedure for doing that is the so-called "mock crime experiment," where you instruct people to commit a crime. You have evidence that they've committed the crime because they have the stolen object on their person, or you can even have them videotaped in the act of committing it. And then you interrogate them about that and see if your interrogation procedures can discriminate those who are telling the truth about committing this mock crime from those who don't. Those experiments, and there are many of those, and almost all of those experiments indicate the utility of the polygraph in discriminating guilty from innocent people at a substantially better rate than chance. Not perfect obviously.

Q But you're aware of the substantial criticisms levied about lab tests by Professor Raskin, are you not?

A The substantial criticism of him?

Q Of the --

THE COURT: Criticism by Professor Raskin or criticism of Professor Raskin?

Q By Professor Raskin of the laboratory tests.

A I am aware of the specific concerns he has about, whether you can generalize from laboratory tests to the field, yes.

Q Have you read his Utah Law Review in the course of coming to be informed about this topic?

A No, I have not read his Utah Law Review.

Q Have you read Professor Honts' 1995 North Dakota Law Review?

A Yes, I have read that.

Q And have you, have you read anything by Professor, I believe it's Furedy, F-u-r-e-d-y, in the course of --

A Furedy I think you mean. F-U-R-E-D-Y?

Q Yes.

A Furedy, yes.

Q And you've read stuff by, you've read material by Dr. Lykken?

A Oh, yes.

Q And you've read material by Dr. Iacono.

A Oh, yes, definitely.

Q And when you indicate a "qualified examiner" in your test, do you have it standardized in your mind what a qualified examiner is, or is that a case-by-case situation?

A No, I have a standard, but it's probably much more stringent than anyone else's in the world. And that is, someone who's been trained both in polygraphy and in psychology, and who understands the nature of controlled experimentation, and understands the scientific rules of inference from data. That would eliminate about ninety-eight percent of the professional polygraphers.

Q Would an economic interest in the outcome, would an economic interest in the polygraph test have an effect on the professionalism, do you believe?

A I don't really understand the question.

Q Would you take into account, in terms of qualifications, whether or not the person's being paid by a certain side?

A Are you doing this for free?

Q Sir.

A Everyone gets paid for their work.

Q Sir, please answer my question.

A Of course not.

THE COURT: We have a convention, it's been about three hundred years in the commonwealth, that the lawyer asks the questions.

THE WITNESS: Okay, I'm sorry.

A No. I guess I would have to say, if the person is professional, they get paid for what they do. I don't believe that that compromises --

THE COURT: No, no, that's not the question. The question is, in essence, does the fact that somebody is getting paid for espousing a position, have some effect on the strength of his espousal. If that's not the question, Mr. Jalelian, you can certainly edit it.

THE WITNESS: I don't know how to answer that. I would assume that --

Q Well, you set up a standard for qualifications in your own mind. Is that included in the standard?

A I'm having, I really am genuinely having difficulty in knowing what you're asking.

THE COURT: When you establish in your mind that somebody, to be a qualified polygraph examiner must have background in the polygraph and also background in the psychology, the question is, did you in setting up the standard in your mind as to what the ideal polygrapher, or the qualified polygrapher would be, take into account that the person was being paid to conduct the polygraph test.

THE WITNESS: No, I did not.

Q In fact, you're being paid today.

A Of course.

Q And did you take into account in this standard when you did your affidavit, the qualifications, as you know them, of Professor Raskin?

MR. GOOD: "Take into account" for what purpose?

A For what purpose?

Q When you wrote your affidavit. Did you have Professor Raskin in mind when you wrote the affidavit?

A I consider him a fully qualified polygrapher, yes, so I guess --

Q Sir, did you have him in mind when you wrote the affidavit?

A Specifically?

Q Yes.

THE COURT: Well, let's put it this way: Did you know, when you wrote the affidavit, that Professor Raskin was going to be a witness for the defense?

THE WITNESS: Yes, I did know.

Q Did you know, in fact, the results of the polygraph test administered to Louise Woodward in this case?

A I believe I did.

Q And did you know, did you have a copy of the transcript that was given?

A No.

Q Did you have a copy of the audio tape?

A No.

Q Did you have a copy of the questions and answers?

A I had a copy of the questions and answers, I believe, one page. I did not see any of the details of the interview or the exam or the results until after I wrote my affidavit.

Q And you wrote your affidavit obviously with this case in mind.

A Well, obviously I was asked --

Q At the request of the defendant.

A At the request of the defense attorney, yes.

Q And up until that time, have you ever written an affidavit of this sort for any criminal case?

A For any criminal case? No.

Q And how many times have you testified of this nature?

MR. GOOD: Can you clarify what you mean by "of this nature"?

Q In a criminal case substantially similar to the affidavit that's been presented.

A About polygraphy you mean.

Q Substantially similar to --

THE COURT: Well, let's start with how many times have you testified in a criminal case?

THE WITNESS: This will be my second.

Q And when was the last time?

A In a criminal case? It must be fifteen years ago.

Q And was it for the same purpose?

A No.

Q Did it have anything to do with polygraph?

A No.

Q So this is the first time that you've decided under oath to take this position.

A Yes.

THE COURT: Are you suggesting habituation?

MR. JALELIAN: Not by this witness.

THE WITNESS: That's right.

Q Would you -- and what is your fee?

A What is my fee? Two hundred and fifty dollars an hour.

MR. JALELIAN: Thank you. No further questions.

THE COURT: All right, Mr. Good, anything else?

MR. GOOD: Yes, Your Honor, thank you.

Q I take it, just to make sure, Dr. Katkin, is there anything that you want to add to the explanation that you've already given to the Court concerning your change in view with respect to the role that art or subjectivity plays in polygraph examinations, properly conducted polygraph examinations, as distinguished from objective assessment? Is there anything you want to add?

A Simply that I've become persuaded by the weight of the evidence that objectively scored standardized polygraph tests have a reasonably high rate of accuracy, notwithstanding the concerns, theoretical concerns, that have been raised by some people.

Q Now, you were also asked some questions about habituation. Is there, I guess -- is habituation properly labeled a process in psychology, is that the right word?

A I think that's a fair word.

Q Is there a process called dishabituation?

A Yes, there is.

Q And could you describe for the Court, I believe that you've already indicated to the Court what habituation is.

A Yes.

Q Could you tell the Court what dishabituation is.

A Okay. Habituation, as you recall, is that with repeated stimulation, the physiological response to the stimuli decrease in their amplitude. Dishabituation occurs when there's suddenly any change in the stimulus quality of any kind, so that -- and then the habituated response dishabituates, and you get a large rise.

So the simplest paradigm to describe it would be if you give someone a tone to listen to, beep, beep, beep, the physiological response to each repeated beep will begin to get smaller and smaller and smaller. If after a while you then go "boop," you'll get a dishabituation, and there'll be a very large physiological response to the beep. Or introducing any novelty to the repetitive situation will dishabituate their habituated response.

Q So that if, prior to -- just, if we can translate or transfer this concept over to a person's experience in undergoing a polygraph examination. If the person were asked questions about a past incident repeatedly, but not in the context of taking the polygraph examination, you've already testified that you don't know of any data that this habituation necessarily occurs with respect to answering questions, like yes-or-no answers. But assuming for a moment, you did indicate that there may be some literature indicating that the person would become, their physiological responses would become habituated and lessened as they answer questions, is that right?

A Yes.

Q Now, and what I'm asking you is to hypothesize if you would, that after that occurs, the stimuli changes in that now the questions are being asked in a polygraph examination where the person is wearing a blood pressure cuff, a device around their chest to measure their respiration, and various other implements attached to their body which they've never experienced before when answering these questions. Would you expect, Dr. Katkin, that dishabituation would occur under those circumstances?

A I think it's likely. I don't know of any data on that, but I think it's likely.

Q Now, you mentioned at one point, I believe on cross-examination about paragraph five of your affidavit, you were asked about a comparison between the data, scientific data concerning the reliability and validity of the polygraph examination, and other types of testing, psychological testing and assessment. And is it true that there are, there is in the psychological literature, data concerning various kinds of diagnostic tests, psychological tests. Is that true?

A Yes.

Q And that, is it also -- could you give an example, isn't there something that has a personality inventory?

A MMPI, Minnesota Multiphasic Personality Inventory.

Q And is that, could you tell the Court what that is, just generally.

A Well, it's a set of about five hundred and fifty true-false questions that people fill out. And then their response patterns -- the examiner rarely looks at the answer to any single question, but rather scores bunches of questions in groups and compares them to reference groups. So that, for instance, you'll give this test to a population of in-patient schizophrenics, and you'll get the average kind of answers that schizophrenics give. Then you'll give it to the person you're examining, and compare his constellation of answers to the constellation of answers of schizophrenics. And then make a probability estimate of whether this patient's response is more likely to come from the population of schizophrenics than from the population of normals. And then you make a probability judgment about probably if this person is schizophrenic or not, and with other sorts of disorders.

Q So at least from the scientific method standpoint, the MMPI, the shorthand MMPI, uses what we call a sequence of scientific reasoning that's similar to the polygraph, isn't that true?

MR. JALELIAN: Objection. The MMPI --

THE COURT: You're leading your witness.

MR. JALELIAN: Also, Your Honor, the MMPI was not discussed in his affidavit, nor was it discussed on cross-examination.

THE COURT: Mr. Good.

MR. GOOD: Yes, Your Honor, but he did introduce the subject of comparative validity of different types of scientific tests. And what I'm doing is going into one such --

THE COURT: I'll let you go into one such, but you may not lead the witness.

Q Now, sir, does the MMPI -- first of all, is the MMPI, to your knowledge, used as part of a psychological assessment for forensic purposes on occasion?

A On occasion, yes.

Q And does the MMPI, when it's --

THE COURT: You're leading, Mr. Good.

MR. GOOD: I'm sorry?

THE COURT: You're asking leading questions.

Q Well, Dr. Katkin, does the MMPI - answer this if you would with an explanation - what, if any, role does assessment of malingering, that is, whether or not the person is being truthful about any topic or subject matter, form a part of the assessment performed by the MMPI?

MR. JALELIAN: Objection.

THE COURT: The objection's sustained. That's not what "malingering" means. Malingering roughly means saying that you're sick when you're not.

MR. GOOD: Which is -- that's exactly what I mean by the word when I asked the question, Your Honor.

THE COURT: All right, you may answer the question if you understand it.

A Yes, that's built in. The MMPI has, one of the criticisms of it when it was first developed, was that people might be able to answer the test in such a way that they would look mentally ill when they really weren't. And for a variety of reasons, people might want to do that. And so that the test attempts to screen for that by building in certain questions that are not based on the statistical reference point, but questions that they think will trap people into obviously telling lies, if you will. In fact, one of the scales on the MMPI scale, it's called a "lie scale," and there's a lie scale and a falsification scale. And they score those. And then if they assume that the person has scored above an acceptable level on these scales, they will say the other scales can't be interpreted because this person is, I guess, malingering, or lying, or falsifying in some way.

Q And have you seen, or are you familiar with the scientific data concerning the validity of what you just described, that is, that it is reliable and valid. Have you seen that data?

A Yes.

Q And would you compare the conclusions, describe for the Court the conclusions with respect to the MMPI and conclusions, or your assessment of the scientific literature with respect to the validity of the polygraph.

A I think the empirical validation on accuracy of the classification with validity shows statistically better results than the classification of mental illness with the MMPI, and especially classification of the falsification or malingering component, on which there's very, very, very little research.

Q And can you tell us what, if anything, you know about the forensic use, that is, to assess things like presence or absence of mental illness for court purposes, mental illness or defect, personality disorder, to what extent if you know, would you tell the Court what you know about the forensic use of that, that test.

A To be quite honest, I know not a whole lot, except that the -- when test data like this are introduced, they're generally introduced with an aura of scientific expertise and validity which the literature doesn't support in terms of outcome measurement. But I have no idea how frequently that's done, I don't have any data in front of me about how often MMPI tests are introduced.

Q Now, you've also been asked a number of questions about Professor Lykken.

A Yes.

Q And that's spelled?

A L-Y-K-K-E-N.

Q And has Dr. Lykken published research in which he claims that there is a genetic correlation with respect to the depth of people's religious beliefs?

MR. JALELIAN: Objection.

THE COURT: What's the relevance?

MR. GOOD: The relevance is, Your Honor, if I may just give an offer of proof.

Dr. Lykken is relied upon very heavily in --

THE COURT: Mr. Good, just tell me the relevance.

MR. GOOD: Well, I'm trying --

THE COURT: No, I didn't ask for an offer of proof.

MR. GOOD: I'm sorry. The relevance is that Dr. Lykken is someone who is relied on heavily by the Commonwealth. His research is offered and relied upon. And I'm asking this witness to describe to the Court some of the research that Dr. Lykken has proposed for the purpose of showing the Court that the scientific validity of the matters that Dr. Lykken asserts are established - things like the genetic, that people are genetically disposed to be religious - he relies upon data which is very, very weak obviously for that. And on the other hand, this data about polygraph using only, that's he got a subjective -- I'm asking the witness to comment on Dr. Lykken --

THE COURT: Is Dr. Lykken going to be a witness?

MR. GOOD: No, Your Honor.

THE COURT: Well, then why do we need to have any of this?

MR. GOOD: Because he's being relied upon, granted on a hearsay basis, by the expert the Commonwealth has filed an affidavit for. And they've also offered a substantial amount of literature authored by Dr. Lykken. And for that reason, I ask the Court to consider this evidence.

THE COURT: What has been admitted into evidence, or will be admitted into evidence, by Dr. Lykken?

MR. GOOD: I believe that there are several articles, I would just have to go through them - I don't know if you Your Honor wants me to go through them now, but --

THE COURT: I have one that was included in the materials. If I have missed something, I'd like to know about it, but I didn't think I did. The Iacono and Lykken piece that was to appear in the West Companion for Scientific Evidence.

MR. GOOD: Yes. And also the last exhibit that the Commonwealth offered, Your Honor, Exhibit 9, the so-called "chapter."

THE COURT: That's the one that's been referred to. I don't have that, that hasn't been given to me.

MR. JALELIAN: There is another, the scientific validity -- "The Validity of the Lie Detector: Two Surveys of Scientific Opinion," by Iacono and Lykken. The defense is referring to a chapter on polygraph tests to appear.

THE COURT: Yes.

MR. JALELIAN: The item that has just been put in that this person has referred to, this witness, is frankly a better version of it because it's been more edited out. So what I believe Mr. Good has an objection to, is not being offered.

THE COURT: Okay.

MR. GOOD: Well, I thought you have in evidence as Exhibit 9 this chapter.

THE COURT: Look, I'll allow you to ask this witness what Dr. Lykken's reputation is in the scientific community.

MR. GOOD: Again, Your Honor, I would press, if Your Honor includes the questions, what I wish to ask the witness is about his observation of Professor Lykken's differential standards in assessing scientific evidence in the polygraph, versus some of these other areas.

THE COURT: If you can do it without asking leading questions, and without inadmissible hearsay, you may do it. Go ahead.

Q Now, sir, have you read the research in fields other than polygraph?

MR. JALELIAN: Objection.

A Yes.

THE COURT: I'll allow that.

A Yes.

THE COURT: It is a leading question, but I'm going to allow it. I'll tell you, Mr. Good, you're on warning.

MR. GOOD: Thank you, Your Honor. I'm sorry about that. I do apologize.

Q Sir, could you describe to the Court the literature that Professor Lykken has published and that you've read that finds correlations between certain genetic characteristics and behaviors of people, would you do that, sir.

MR. JALELIAN: Objection.

THE COURT: I'll allow it.

A I'm sorry, I didn't hear the response.

Q Yes, you may answer.

A Dr. Lykken is primarily --

THE COURT: That question can be answered yes or no.

MR. GOOD: I asked him to describe.

MR. JALELIAN: Objection.

THE COURT: Go ahead.

A Dr. Lykken's primary research area for the last few years apparently has been on the behavioral, called behavioral genetics, looking at identical twins reared apart, to find out something about their common characteristics that would be attributed to heritability. And he's been publishing extensively out of Minnesota with a number of colleagues. And there's a substantial amount of controversy about what he's publishing, because there are assertions, based on his observations, that concepts like one's desire to work in animal husbandry, or one's religious commitments, and so on, are genetically determined, or have a very high heritability component. And there are a number of people, both in psychology and in genetics, who have raised serious questions about what they feel are inductive leaps of faith from the fairly weak database. So this is, I would say, his primary research commitment right now.

In my judgment, and it's just a judgment, Dr. Lykken's --

MR. JALELIAN: Objection.

THE COURT: I'll allow it.

A Dr. Lykken's research activities in polygraphy are a minor part of his work-related commitment at this time. He's moved clearly into the behavioral genetics activity.

Q And, Dr. Katkin, would you comment, if you would, or tell the Court your view as to the standards that Dr. Lykken's applied with respect to the validity of the inferences that he's drawing in the behavioral genetics research that he does, and contrast those with the standards he's applied to the science, scientific data concerning the polygraph.

MR. JALELIAN: Objection.

THE COURT: I'll allow it.

A In my view, Dr. Lykken is much more tolerant of conjectures based on his behavioral genetic data than he is on data that comes out of the empirical polygraphy laboratory. My sense is that Dr. Lykken has historically raised very important objections to polygraphy. He's put forth theoretical arguments that are formidable and would be attended to, but that the weight of the empirical evidence doesn't support his theoretical objections.

Q And when you mentioned this "empirical evidence," just to follow that up, what exactly were you referring to?

A I'm referring to the collected body of both field and laboratory studies in polygraphy, which seem to continually, regardless of how much rigor, they seem to continuously come up with a very high rate of accuracy and a fairly low rate of false negative decisions. And while one can argue about all the reasons why that shouldn't be the case, it nevertheless is the case. And at some point, one has to change the theory to fit the data and reject the data because you don't like the way they fit your theory. That's a conclusion I've sort of come to myself about this field.

MR. GOOD: If Your Honor please, I don't believe that my brother put in the record the chapter that the witness was questioned about, I think I'm correct about that.

THE COURT: That's Exhibit 9.

MR. JALELIAN: No, I don't believe I did. If counsel wants to put it in, I have no objection, Your Honor.

THE COURT: All right. Let me have Exhibit 9 then, and this next one will be --

MR. GOOD: Exhibit 9 is the chapter.

THE COURT: Well, whatever is going into evidence, put it to the -- I'd like to have, before we start marking Exhibit 10, I'd like to have Exhibit 9 in my hand, please, if somebody, whoever has it, please give it to me.

MR. GOOD: Exhibit 9 I believe is the chapter -- the Iacono.

THE COURT: All right, Exhibit 10.

THE COURT: Go ahead.

MR. GOOD: Thank you, Your Honor.

Q In answer to some questions that His Honor put about ground truth, you indicated to the Court that one part of polygraph examination literature concerns laboratory data in which the ground truth is known. Is that true?

A Yes.

MR. JALELIAN: Objection. Leading.

THE COURT: Sustained.

MR. GOOD: I'm sorry.

Q Now, with respect to field studies --

A Yes.

Q -- have you looked at, within the articles about field studies, the descriptions of the methodology with respect to determining ground truth? Yes?

A Yes.

MR. JALELIAN: Objection. Leading.

MR. GOOD: If I can just --

THE COURT: Sustained.

Q Could you tell the Court what your observations are about the determination of ground truth in the field studies.

A It's a much more difficult test than it is in the laboratory studies. Because in the laboratory studies, you define a situation. In the field studies, you don't. There are attempts to define ground truth largely by confessions of the suspects, and usually confessions that have been corroborated by hard evidence. And those would be the best field studies when you have a confession and it's corroborated by hard evidence, you've got ground truth of guilt. Ground truth of innocence is usually defined as some other person is determined, on the basis of hard evidence, to have committed the crime, some other person than the subject of the interrogation.

Q And can you tell us what, if any, inquiries since 1989 roughly, what, if any, influence the field data has had on your assessment of the scientific validity of polygraph examination.

MR. JALELIAN: Objection. What field data?

MR. GOOD: Since 1989.

THE COURT: What field data?

Q Any field data that's come to your attention since 1989.

A Well, I've seen some field studies on the control question test, and there has been, I think, one, one field study that I know of that's been done with the so-called guilty knowledge test. But that's, the literature is primarily on the control question test. And there has been a sort of consistent set of findings that have indicated rates of accuracy that are slightly higher than the rates of accuracy we reported on the field study review in the OTA report. So that my sense, which I had in 1983, has been reenforced, which is that the accuracy of the control question polygraph test, in specific incident criminal investigations, has a fairly high degree of accuracy, as confirmed by the field studies.

THE COURT: All right, we'll take the recess now.