Dr. Katkin's Testimony Continued

THE COURT: All right, I'll just remind you that you're still under oath. Anything else, Mr. Good?

MR. GOOD: Yes. Your Honor, I believe Exhibit 9 was this Faigman chapter.

THE COURT: Yes.

MR. GOOD: Can I just use that for a moment, Your Honor?

Q Dr. Katkin, you were asked on cross-examination about that chapter which you described to the Court as a "rejoinder," do you remember that?

A Yes.

Q Would you explain, tell the Court, if you would, what your view is of, having read that, sir, what is your view about the written debate, as it were, that's described in that chapter? What is your opinion about it?

MR. JALELIAN: Objection.

THE COURT: On what ground?

MR. JALELIAN: In what context, what type of "view," it's so broad.

THE COURT: I'll let him have it.

Q Go ahead, Dr. Katkin.

A Okay. This chapter, while very new - it's apparently not out yet - is not very new to me. The contents of it restate what's been going on for a long time in the debate between the so-called "Lykken camp" and the so-called "Raskin camp."

And the way I see it is, David Lykken is an extraordinarily talented psychologist, and a very good thinker. And he has for years raised important objections to the interpretation of the polygraph test, and attempted to develop plausible explanations of why polygraph evidence should not be valid, should not be accurate, should not be accepted.

Raskin, on the other hand, has gone about the task over the years with his colleagues of doing empirical studies, responding, I think, reasonably well to the kinds of theoretical arguments and concerns that Lykken and his group have raised. Raskin's group continues to collect empirical data from field studies, from laboratory studies, that continually show reasonably good rates of accuracy or validity for the polygraph test, as they successively over time refine their experiments to try to deal with the theoretical criticisms that are raised.

Lykken himself doesn't do the empirical work, he does theoretical writing, he writes essays and thought pieces very well I should say. And continues to raise objections. And my personal judgment, after reading this, and reading so many of the other things that the two groups have written, is that we have on --

THE COURT: When you say "this," you mean Exhibit 9?

THE WITNESS: Yes, the Faigman chapter.

A -- that Lykken's group raises lots of theoretical objections, some of which seem very plausible, against the polygraph. Raskin's group keeps coming back over and over again, doggedly I would say, collecting more and more data which support the utility of the polygraph. And we have kind of a classic situation where you have people saying it shouldn't work, it couldn't work, it doesn't work, except that it works. And the situation that I find myself in, as someone who has really tried to maintain good relations with both camps, and I think I do, that it seems to me that the weight of evidence suggests that the polygraph is a useful instrument in the hands of the right people, notwithstanding theoretical arguments. There's a time in the history of science, when you find data that don't fit theory, one must adjust the theory.

And I think at this point, Raskin has not been a great theoretician, he's not writing theory about the polygraph, he's in the laboratory and in the field collecting data, or his colleagues are. Lykken has been sticking to his theoretical arguments through thick and thin, irrespective of the fact that data keeps accumulating to show that there's some utility here.

I think it's time for the field, and I intend to make a speech about this in October at the psychophysiology meetings, I think it's time for the field to say, let's try to develop newer, better theories to accommodate the data. The Lykken arguments, while plausible, aren't being supported. And we need to incorporate the findings that are there, and try to figure out a more comprehensive understanding of why these findings are there, why they're working.

In a sense, you know, that's how science always progresses. So that's basically my reading of this controversy: We have again on one side people raising lots of conceptual objections, and raising them articulately and intelligently; and then on the other side, we have good hard data that supports the utility of the instrument. That's essentially where I come down, that's how I see it.

THE COURT: When you say "good hard data," what do you mean?

THE WITNESS: That the accuracy of the polygraph, and the incidence of false negative and false positive assessments, accuracy is high, false negative and false positive assessments are low. The laboratory experiments are very good evidence, I think, and the mock crime thing. The field studies, I personally prefer the laboratory studies, although Raskin doesn't, but I think the field studies also confirm that the test is, as I've said before, as good as or better than, most likely better than most of the kinds of evidence that psychologists bring to bear on assessment issues. And it has always seemed odd to me that this particular assessment technique faces so much difficulty in acceptance, when techniques with much weaker evidence don't.

Q You were also asked -- why, if you would, Dr. Katkin, can you explain to the Court, why you chose at this time to sign the affidavit that you have and to appear here in this case; what is it that has occurred that causes you to do that?

A It's a combination of things - partly the time in my life, to be quite honest. For many, many years, I've been a close observer of the issues and controversy, and have been involved in it. I've attempted very strongly to avoid testifying in the past. I've always felt that I had some position of respect within this community as a neutral observer, an arbiter, as it were, which is why I was asked to chair the OTA report. And I felt for a long time this is not something I should get involved in.

But my own feelings in the last year or two have been getting stronger and stronger about my sense of, if you will, discrimination against the polygraph data by society in general, and perhaps by the legal system. And I felt, at the time that I was contacted by you, I felt personally the data was strong enough that I could say something I believed in and that I was at a point in my life, unfortunately, where I think now I can give this more of my attention and more energy and time. I'm less concerned now with the future and being seen as someone who's not going to talk about it publicly; I'm willing, if the data persuade me, and I'm now at a point in my life where I'm willing to speak publicly, where in the past I felt I shouldn't. That's basically why I'm here.

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

Q It's fair to say, by your own characterization, you were at one point an arbiter, and now you have become on one of the sides, is that fair?

A No, I don't think that's fair.

Q Well, you said initially that you were chosen to be the chair of the advisory board because you were an arbiter.

A Yes.

Q And now you believe that the polygraph has been discriminated against, and that the data supports its validity.

A In 1983, when I was the arbiter --

Q Sir, that was a yes-or-no question.

A Could you repeat the question.

Q In 1983, you were chosen because you were an arbiter and not, to be head of the advisory board --

A Yes.

Q -- because you had not taken. And now, in essence, you have reviewed the information and reviewed what's in both the field and laboratory studies, and now you believe, rather than being on one, that you are, on one side or the other, you are a supporter of the, you believe that the data supporting the polygraph is valid.

A I believed that then, I believe it now.

Q But didn't you just state that you were chosen to be on the advisory board because you were an arbiter and not on one side or the other of the controversy?

A Yes.

Q Okay. So at that point, you were not on one side or the other of the controversy, is that correct?

A At that time I was not.

Q And now you are, isn't that correct?

A I don't think that's fair.

Q You're testifying consistent with David Raskin and consistent with Charles Honts, isn't that correct?

A Yes, in this case, but I won't always.

Q I understand that. And what you just said, you are at a time in your life now --

A Yes.

Q -- and in your career presumably, where you feel as though you can speak out and put it on the public record.

A I wish to, yes.

Q And is it fair to say that up until this point, you didn't feel that your reputation could handle being on one side or the other?

A I didn't say that.

Q Is that a fair characterization?

A No.

Q Your reputation as an academic is very secure, in fact you have very numerous high posts, is that correct?

A Yes.

Q And you are fairly, I'm sure you believe and I'm not just saying that you're not, very well respected in the field.

A That's for you to say.

Q At a certain point, to get involved in this polemic puts you on one side of the controversy, does it not, or the other?

A It could, yes. I honestly don't think my affidavit does.

Q Do you believe that there are those in the academic community who would interpret you testifying consistent with and on behalf, in support of David Raskin's testimony, as putting you in that camp?

A I think that's probably the case, yes.

Q And now you're at a course in your career and your life where your reputation can completely handle that, isn't that correct?

A Well, I don't know. I'll find out in a week or two.

THE COURT: Is the point that, from a position of neutrality, the witness is now taking a position of advocacy, I mean is that the point? That's pretty obvious.

MR. JALELIAN: That's fine. I just, his motivation --

THE COURT: I assume that, Dr. Katkin, you don't disagree with that.

THE WITNESS: That I've taken a position of advocacy?

THE COURT: Yes.

THE WITNESS: The position I'm advocating is that, evidence from qualified polygraphers should be admissible in court, that's the position I'm advocating.

THE COURT: And that's a change - I think that's the point that Mr. Jalelian is making - that's a change from your former position.

THE WITNESS: No, it's not a change from my former position. The position that I took in 1983 and 1989 was that this evidence was scientifically acceptable. And my position was that, whether it's admissible in court or not is not a scientific issue, it's a political issue. So now I've decided for the first time in my career to say something about the political issue, rather than the scientific issue. The scientific issue has always been clear to me.

Q And you've decided that it should now be admitted.

A Yes.

THE COURT: How is that a political issue?

THE WITNESS: Well, I think the question is, is this scientifically-useful information. I've always believed it was. And I've always believed that the arguments about whether it should be admitted or not, were not not because it wasn't scientifically useful, but because some people felt that it was not the right kind of data for a court to hear. And I now have decided, after long years of mulling over this in my own mind, that I believe that the scientific credibility has always been reasonable, it's better now than it was in the past, and that I feel now after having wrestled with it for years, that I'm willing to say that I do believe, I genuinely believe that courts should admit this evidence and let it be looked at.

THE COURT: Is your position party neutral, that is to say, are you saying --

THE WITNESS: Absolutely.

THE COURT: -- it should be admitted, no matter who wants to introduce it?

THE WITNESS: Yes, yes.

Q So you would have no problem with a government-administered polygraph examination in which a criminal defendant has flunked, being presented, as much as --

A I would have no problem at all if I felt that the polygraph examination was conducted according to the standards that I described earlier.

Q So the high or low degree of false positives or false negatives don't affect you.

A I think they do affect me.

Q Well then, isn't it at least consistent that, and you would have a problem if more innocent, more innocent people are identified as truthful, than guilty people are identified as deceptive, is that correct?

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

Q Well, when an innocent person puts forth a test that they say they have passed, the likelihood of accuracy of that outcome is higher than the reverse, a guilty person who has flunked, if you know.

A The difference in the statistics there is fairly small. I think the false-negative rate - that is, guilty people being found innocent - runs about ten percent. And the false-positive rate - that is, of innocent people being labeled guilty - I'd have to go back to the text, but sixteen percent or something like that.

THE COURT: How much?

THE WITNESS: Sixteen, I believe.

Q But you don't have a problem with either side admitting it.

A I have no problem with that kind of evidence being introduced at the trial and letting a jury hear it debated. That's why I have no problem with it.

THE COURT: Let me make sure I understand you. The figures you've cited - meaning the approximately one out of every six innocent people will be labeled guilty --

THE WITNESS: No.

THE COURT: That's what sixteen percent false positive means.

THE WITNESS: No, false positive would be innocent people labeled guilty. If there's a sixteen percent rate of false positives, sixteen percent of the people, yes, identified as guilty might be innocent.

THE COURT: It's just, psychology is not something I'm an expert in, nor math, but I do have a calculator.

THE WITNESS: Yes, okay. I just want to make sure you're on the same track with false positive and false negatives.

THE COURT: You're comfortable with one out of six innocent people being labeled "guilty"?

THE WITNESS: No, I'm not comfortable with that at all. I don't think the polygrapher labels them "guilty."

THE COURT: You don't think what?

THE WITNESS: I don't think the polygraph operator labels them as "guilty."

THE COURT: Well, the polygraph result certainly does, doesn't it?

THE WITNESS: Not if it's done properly.

THE COURT: Well, I was confused because you used the term "labelled," that's why I --

THE WITNESS: Oh, okay. The polygraph result should, if it's properly done, describe the procedures that were employed, and should provide the probability estimates on whether this person's responses were likely to be deceptive or not; and a proper presentation should include a description of the probability of error. And all I'm saying is that, in my judgment, the probability of error in these tests is smaller than the probability of error in many other kinds of tests that psychologists do. And I don't see any reason why this can't be introduced and argued about at a trial.

THE COURT: And you label this as "political" partly because the stakes in a criminal case are generally considered to be higher than the stakes in a civil case.

THE WITNESS: I think so, yes.

Q Would you, do you believe that a jury would give undue weight to the scientific testimony based on polygraphy?

A I really cannot judge that, I just can't.

Q One way or the other. So you're not saying that you have an opinion either, so it could one way or it could the other, you just don't know.

A I frankly don't have any idea. My guess would be, if I had to answer you, that it would depend on the skill of the attorneys who were presenting the information. That's what I would think would influence the jurors more than the data.

Q So then the data would have no effect itself, it would be the attorney?

A I didn't say that. I said the skill with which it's presented would have a lot to do with it.

Q Not the fact of what is being presented, the fact that a person is talking about the truthfulness of another person, providing expert testimony on truth.

A I guess no more or less than any other expert testimony. Obviously, it must have some value or people wouldn't want to introduce it.

Q But you are aware that the role of the jury is to determine the truth.

A Sure.

Q Now, in your article, the chapter four article that we were discussing today, do you mention dishabituation in the article, the term?

A I don't remember whether I mentioned habituation or dishabituation. Can you show me?

THE COURT: I'm sorry, is that Exhibit 10 or Exhibit 9?

MR. GOOD: Yes, that's Exhibit 10, Your Honor.

THE COURT: Thank you. What page are you looking at, Mr. Jalelian?

Q Page 124, you mentioned "habituation," is that correct?

A What paragraph?

Q And do you know if "dishabituation" is mentioned?

A Well, it's not marked, I don't recall; perhaps not.

Q Perhaps not?

A I don't recall. I haven't re-read this in a long time.

Q Would it be with habituation in terms of the typical writing that you do, would you write habituation with dishabituation?

A Well, I've written about both.

Q But in terms of structuring an article, if you write about habituation in an article, would it be nearby in the article, or would it be in a separate --

A No, not necessarily.

Q But you can't recall if you mentioned dishabituation in this article.

A No, I can't recall.

Q Now, you testified about Dr. Lykken -- strike that. The last article that you've written on polygraph was this one, is that fair, 1989? That was published in 1989, but written in 1984?

A I would feel more comfortable answering that if you'd let me look at my own C.V.

Q Well, that's all right. I believe it's page ten.

A Thank you.

A I'll have to give you a qualified answer. I published a paper on psychophysiological assessment of stress in a handbook of stress in 1993. I cannot honestly say whether I discussed polygraphy in that chapter or not, I don't recall.

Q Okay. So to your knowledge --

A But it's possible that I did.

Q To your knowledge, the last polygraph document that you've published is the one we're talking about today.

A Yes, although I would not characterize it as a "polygraph document."

Q The last document that you've written concerning, or has reference to, is that primarily polygraph?

A Yes.

Q And you indicated that your information about Dr. Lykken is that he has tended to move away from polygraph and published other materials as of late?

A I've said that he's putting more of his effort into that.

Q He's focusing more of his attention on it. And when did he focus a primary amount, to your knowledge, of attention on polygraph?

A In the seventies and eighties.

Q Have you had an opportunity to look at that article or see this article?

A Yes.

Q And could you read the title?

A Yes, "The Validity of the Lie Detector: Two Surveys of Scientific Opinion."

Q And the authors?

A Iacono and Lykken.

Q And what's the date?

A '97.

Q So he's a co-author of an article on the scientific surveys of lie detector as late as 1997.

A Yes.

Q In fact, this month, isn't that correct?

A Yes.

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

THE COURT: All right, thank you very much.

THE COURT: I guess that's the defendant's case, is it? Anything else?

MR. GOOD: Yes, Your Honor. Your Honor, this is a, I'm not sure that this is in the record, I don't think it is --

MR. JALELIAN: It's also, just so you know, it's not --

THE COURT: Look, counsel, do your talking together elsewhere.

MR. GOOD: I'm sorry, Your Honor.

THE COURT: What is it that's being offered to me?

MR. GOOD: This is an article, or rather a study, as it were -- my brother is claiming that perhaps he does not have all the pages.

THE COURT: Well, what is it and is there an objection to it? First of all, what is it, just describe it.

MR. GOOD: It's entitled, "Crime Laboratory Proficiency Testing Research Program," and it's put out by the Department of Justice. And it studies --

THE COURT: All right. Now, is there an objection to it?

MR. JALELIAN: Yes.

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

MR. JALELIAN: It is not, my understanding is that it is not a full copy of it, and it also is irrelevant.

THE COURT: Well, it's not a full copy. If Mr. Good wants to introduce part of it, and you want to introduce the rest, that's all right. The two of you can get together and agree on what part of it is. On relevancy grounds, the objection's overruled.

MR. JALELIAN: I have never seen a full copy. I'm just basing it --

THE COURT: Okay. Well, you and Mr. Good can take advantage of the fact that I'm going to be giving you a little enlarged lunch hour today because I have another criminal case I have to deal with, from like 2:00 o'clock to 2:15. So you can use the time to work your editorial magic with Ms. Rooney's help.

All right. Now, what next?

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

THE COURT: All right, the defendant rests?

MR. GOOD: Yes, Your Honor.

THE COURT: I guess your witness, your next witness, is going to be Dr. Saxe?

MR. JALELIAN: Your Honor, I will at this time just move orally that you deny the motion in Limine because the defendant has failed to sustain his burden.

THE COURT: Do you wish to be heard?

MR. JALELIAN: No, I'll waive argument.

THE COURT: Very well. I think I will, as long as Dr. Saxe is here, hear Dr. Saxe.

MR. JALELIAN: Your Honor, the other point I would bring to your attention is, both Drs. Katkin and Honts are in the courtroom. And I didn't think of this before, but if this case, if the polygraph is admitted at trial, they may be potential witnesses. So I think they should not be permitted to observe Dr. Saxe's testimony, because all three of them may be witnesses at the trial.

THE COURT: Do you think maybe if they're witnesses at the trial, that somehow they'll get a copy of a transcript? I think that's probable. I don't mean to suggest there's anything untoward or clandestine about getting, as I once heard somebody say, "getting a copy," but I think that they can hang around.

MR. JALELIAN: The Commonwealth would call Leonard Saxe.