Dr. Saxe's Testimony Continued

THE CLERK: The witness is seated, Your Honor.

THE COURT: Very well, thank you everybody. I'll just remind you you're still under oath, and Mr. Good, you may carry on.

Q Dr. Saxe, this morning, having had an opportunity to look at this over the lunch hour, you testified that you were, I think your words were, "quite confident" that you did not submit that manuscript for publication. Do you recall that testimony?

A I don't think I said that.

Q Didn't you say to the Court this morning that you were confident that you had not submitted it for publication?

A I said I was confident, I was fairly confident that I had not submitted it to the "Journal of Applied Psychology."

Q Are you telling the Court that you did submit it for publication, you just don't remember to what journal?

A The reason for my answer is that I was invited to submit a manuscript to the "Journal of Science." And I'm not sure if I actually sent them the manuscript that you saw, or I merely had conversations with the editor about it. As it turned out, they wanted a review article, not an empirical article.

Q But you now have a clear recollection as to where you at least considered sending it.

A Yes.

Q Is it your testimony that you have a recollection as to having sent it or not, to submit it to a journal, that's what I'm asking you.

A I said that I had correspondence with the editor of "Science." I don't recall whether I actually sent him the manuscript or not.

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

THE COURT: Why don't you just read it.

Q Do you recall testifying before Judge Chernoff?

A Yes.

Q In the Mendes case, is that right?

A Yes.

Q And at that time, isn't it correct that you described this study to him?

A I think so, yes.

Q And didn't you also tell Judge Chernoff, after describing the study described in the manuscript, that you had submitted the manuscript for publication to a journal?

A I don't remember the specifics of what I said.

THE COURT: Just read what it says.

Q The Court asked you, "Have you published the results of that?" And your answer was, "It is currently under review, it's written up and is being reviewed by a journal."

A Okay. Then I must have sent it to the editor of "Science."

Q And you have, I take it your testimony is that you did not send it to the "Journal of Applied Social Psychology."

A To the best of my recollection, yes.

Q And do you have your affidavit there in this case?

A Yes.

Q Paragraph fourteen on page ten, if you would look at that, please.

THE COURT: I'm sorry, what page?

MR. GOOD: Ten, paragraph fourteen, of the witness' affidavit.

A Yes.

Q Now, that describes a study. And one of the authors was Charles Honts.

A Yes.

Q And the note in the last sentence, that this was, the polygraph tests investigated in that study were screening polygraphs, isn't that right?

A Yes.

Q Those were not specific-incident polygraph tests.

A No.

Q And it's true that half of the, if you recall, that half of the polygraph tests in that screening study were so-called relevant-irrelevant forms of polygraph examinations, isn't that also true?

A The examiners -- my recollection is that examiners were able to use any and all procedures, and that, as national security polygraphers have explained it to me and as they have testified before congressional committees and described their procedures, they use a combination of relevant and irrelevant and control question procedures. And the argument is that --

Q All I've asked you is that the study includes relevant and irrelevant, isn't that right?

MR. JALELIAN: Objection, Your Honor.

THE COURT: Overruled.

Q That's a satisfactory answer to me that it includes relevant and irrelevant, isn't that right?

A It may include relevant and irrelevant, yes.

MR. GOOD: If I may just have a moment, Your Honor.

THE COURT: Yes.

MR. GOOD: That's all. Thank you.

Q Regarding paragraph fourteen, did you give just now a complete description of your understanding of the study?

A No, I did not.

Q Could you give a complete description of your understanding of that study.

A Yes. That the examiners used fatal procedures, they used the control-question test. They used other procedures as well. What is so extraordinary is that two thirds of the subjects, of the guilty subjects, program guilty subjects, were misclassified. And the primary author of the study, as well as Dr. Honts, don't have good explanations for why you would have such an extraordinary false-negative rate.

Q Thank you.

Now, on cross-examination you were questioned about a study by Professor Honts in the "Journal of General Psychology." Do you recall that questioning?

A Yes, at the end of the morning's questions.

Q And have you, do you know that journal, are you familiar with that journal at all?

A I'm not very familiar with that journal, no.

Q Have you ever submitted anything for publication to that journal?

A No, I haven't.

Q Do you subscribe to it as part of your work at Brandeis?

A No, I haven't.

Q And do you know, if you know, do you know if it's peer-reviewed by Ph.D.s?

A I actually have no knowledge of the --

Q One way or the other.

A One way or the other.

Q Okay. And have you had an opportunity --

THE COURT: You're leading your witness.

MR. JALELIAN: I'm sorry.

Q Have you read that, have you looked at the --

THE COURT: You're still leading the witness.

Q The study that was discussed on cross-examination, have you seen it?

A Yes, I have.

Q And have you read it?

A I've had a chance to review it relatively quickly.

THE COURT: Excuse me, what does that mean?

THE WITNESS: In other words, I haven't had a chance to study it. It wasn't only published recently and was only made available to me today.

Q And based on your reading of that, did you come to any conclusions about that study in light of what you state in your affidavit generally?

A I think it supports what I stated in the affidavit. Interestingly, in --

THE COURT: No, that's the answer. Next question.

Q How?

A The study indicates that in only a small number of cases of the polygraphers, in this case the RCMP polygraphers, was there a confession that was available to substantiate a guilty, a decision about a guilty person. And that substantiates my view that the studies of validity, the field studies of validity that are offered, use biased and unrepresentative samples of cases to demonstrate validity.

Q What, if any, particular portion of that study did you look at that allowed you to come to that conclusion?

A There's a table that shows the results. And I can dig that out -- I've got it here.

MR. GOOD: Which RCMP study are you looking at?

THE WITNESS: This is the Honts 1996 study.

MR. GOOD: Thank you.

MR. JALELIAN: Tab two of Exhibit 2.

A And it's on page 318.

Q And what about that table allows you to draw the conclusions that you just testified to?

A Well, if you look at guilt status, if you look at guilty subjects examined by, who were tested by their original examiners, what you see is, under the "High confirmation condition," that only seven of the twenty-one cases fit that criteria. So in other words, only in one third of the cases was there confirmation by confession. And that means that confession-criterion cases, if this overall sample is representative, are a small number of the actual cases.

What's interesting here is that, if you look at the polygraph result, if you look at the mean scores, the numerical scores, there is a whopping difference, a very large difference between the deceptiveness that appears to be shown by these guilty subjects who have confessed, and the guilty subjects for whom there hasn't been confession, there's just other evidence to indicate their guilt.

Q And what's the significance of that?

A The significance, number one, is that it underscores my view that the validity studies that were presented by the other experts, as evidence that this test, the test done in this case, was valid, are not directly comparable. It also indicates that there may be physiologically an important difference between those subjects who confess, who were showing a lot of emotion, and those subjects who are guilty but don't confess.

Q What's the significance of that different, that physiological difference between those two types that you just described?

A It means that in one case, in the subjects here who confessed, they, by the normal scoring rules, would be considered deceptive. The other subjects, the subjects who didn't confess, would be more borderline cases.

Q Now, on cross-examination by defense counsel, you spoke about some false negatives and false positives of guilty versus innocent people. Is it significant to you -- are the numerical -- strike that. Could you explain the definition of a false negative.

A A false negative is where you decide that a guilty person is non-deceptive. It's where a person who actually is being dishonest, you find them incorrectly to be truthful, to be non-deceptive.

Q So a guilty person is found to be truthful.

A Yes.

Q And that's a false negative?

A Yes.

Q And what's a false positive?

A A false positive is finding an innocent person, a person who didn't do anything, deceptive.

Q Now, within the literature, is there a significance -- what is the significance, if any, to the former that you described, where a guilty person is identified as non-deceptive in terms of verification of actual events in the statistical studies, or in the studies?

A Well, in the field studies where you're using actual cases, as I explained earlier, that the guilty subjects for whom you have ground truth, for whom you know that they really did it, they may be only a small subset of the total number of cases. So we have a number of field studies which show accuracy for these guilty subjects, but they're not representative of the population. They may not be similar to subjects such as in this case.

Q Is it significant -- why, if at all, is it significant to be aware of a guilty person who is identified as truthful within the literature?

A I'm not sure I understand the question.

Q Is it possible to verify the accuracy of a result where a guilty person is identified as truthful?

A It is very difficult.

Q Why is that?

A It's very difficult because if there is no physical evidence, if there is no other information, you haven't set it up as an experiment, you have no way to know whether that person actually did the crime or not.

Q When you have a guilty person who is identified as being truthful, falsely identified as being truthful, in fact another person has committed that crime because the test result is inaccurate, is that correct?

A Well, another person may not have, may not be accused, that may be an unsolved crime.

Q But the person that is being tested is improperly found --

A Found non-deceptive.

Q -- and there would be -- it's very difficult to verify the results of that test because the person who is guilty is not going to confess if they're found truthful, is that correct?

A That's correct.

Q And does that, is that specific fact, can you generalize to a general conclusion based on that, and your view of the scientific validity of the polygraph?

A I can.

Q And have you done that in your affidavit?

A Yes, I have.

MR. JALELIAN: If I may just have a moment, Your Honor.

Q Where, just where in particular do you explain that in your affidavit?

A In number thirteen on page nine.

Q And that includes references to Raskin, Honts --

A Yes.

Q -- Iacono, Lykken --

A Yes.

Q -- Patrick and Iacono?

A Yes.

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

THE COURT: Anything else, Mr. Good?

MR. GOOD: No, I think not, Your Honor

THE COURT: Anything else from the Commonwealth?

MR. JALELIAN: Your Honor, nothing at this time. Again, I discussed Professor Katkin, and you took that evidence de bene. My intention was to possibly get by way of affidavit an affidavit from Professor Iacono if the Court would permit us leave to do so. And that's solely based on the fact that Professor Katkin appeared at a late date.

THE COURT: I don't think we need that.

MR. JALELIAN: I understand.

THE COURT: Tell me, Mr. Good, what's the evidence with respect to that part of the Stewart case that indicates that, and I'm quoting now, "If polygraphic evidence is to be admissible in a given case, it seems likely that its reliability will be established by proof in a given case that a qualified tester who conducted the test had in similar circumstances demonstrated in a statistically-valid number of independently verified and controlled tests the high level of accuracy of the conclusions that the tester reached in those tests." Where is the evidence?

MR. GOOD: On paragraph five on page five.

THE COURT: That's paragraph five of?

MR. GOOD: Of Dr. Raskin's affidavit.

THE COURT: All right. Tell me again, paragraph --

MR. GOOD: Five on page five.

THE COURT: Does the Commonwealth have a comment on that?

MR. JALELIAN: Yes, Your Honor. That study is dated 1978. It is contained, I believe, within the --

THE COURT: Well, there are two studies, one '78 and one '88.

MR. JALELIAN: The first one is 1978, that was available at the time of Mendes. That also deals with convicted felons, half of whom were clinically diagnosed as psychopaths. The results were absolutely verified by scientific procedures. It doesn't say what scientific procedures. It doesn't say how it was absolutely verified. It doesn't say how the tests were administered. My understanding is there was no evidence presented in this case that the test in this case here today was administered in the same way, was given in the same way. It's not a similarly situated defendant, as Louise Woodward is not a convicted felon. There was no evidence of psychopathy in this case. There was no evidence presented by way of direct evidence or cross-examination, about the means by which these tests were given. We haven't had copies of these tests. Simply to say that there is a study in which was published, that it verifies it is simply not enough. The evidence had to come from Professor Raskin as to how he gave these tests, under what circumstances he gave these tests, what the results were of these tests, whether or not these tests were scored the same way. And, frankly, there's been no evidence, aside from this assertion in his affidavit that they were verified.

THE COURT: Anything else?

MR. JALELIAN: Regarding the field study of the validity of the directed lie, there was extensive cross-examination about that. There is a line in that study that I quoted to Professor Honts, that was not denied, that says the, I believe -- I don't want to misquote it -- that says, "It is not known whether in an examination with only the directed lie, control questions would be valid." If that is the foundation upon which the defendant is relying, that's insufficient. It doesn't establish it.

THE COURT: Anything else?

MR. JALELIAN: Regarding that paragraph, no.

THE COURT: Mr. Good.

MR. GOOD: Well, it seems to me that, had the Commonwealth had the objections that it had to this paragraph, that it should have cross-examined Dr. Raskin about it, so that he would have an opportunity to respond to the points that my brother is making now in all fairness. That he was here for the purpose of being cross-examined on his affidavit. And the time to raise it is hardly -- I'm not in as good a position to answer these arguments as Dr. Raskin would have been. It seems to me to be very unfair for the Commonwealth to come in here and make assertions about the quality of these studies, the circumstances under which the tests were given, and the like, and whether or not it meets the standard, without having cross-examined Dr. Raskin on this paragraph. As I understood the purpose --

THE COURT: If you're saying that, in a situation in which you have the burden, it's up to the Commonwealth to cross-examine to show that you haven't met your burden, I am not sure that's a valid objection.

But there seems to me to be another question that hasn't been discussed yet, and I'd be grateful for your thoughts on it, Mr. Good.

Stewart, in the paragraph I just read, talks about "independently verified tests." Now, both of these studies to which Dr. Raskin refers, were conducted in part by Dr. Raskin. That is to say, Dr. Raskin verified his own results. That doesn't strike me as "independent."

MR. GOOD: I don't think that's an accurate description. The studies are attached to his affidavit, Your Honor. And what went on was that, someone other -- Dr. Raskin conducted the examinations. Someone else verified their accuracy. That it is not accurate to say that he was checking his own work in effect.

THE COURT: But he cites in support of his own work an article written by him.

MR. GOOD: I understand that.

THE COURT: That's hardly an "independent verification."

MR. GOOD: Well, he describes in the work independent verification performed by someone else. That's standard.

THE COURT: He describes that somebody else independently verified, is that what you're telling me?

MR. GOOD: Yes.

THE COURT: I don't regard that as an independent verification. Independent verification is, when somebody takes Zobel's data and conclusions, and gives them to Good, and says to Good, "Take a look at this and decide if it's valid." Good then performs whatever tests he wants to, and comes up with whatever conclusion, without anything from Zobel except the data.

MR. GOOD: Well, in this instance what occurred was that both of these studies were submitted for peer review, by multiple people blind. That is, Dr. Raskin has no idea who they are. And these people then have access to the data, and they review it to determine whether or not it's accurate, and whether it's publishable quality, whether it's good science.

So I would submit to you that this study, that these studies more than satisfy even Your Honor's criteria.

THE COURT: Are you saying that, just because there's peer review of an article, that means that the content of the article indicates an independent review of what Dr. Raskin did?

MR. GOOD: I'm saying to you, my understanding of what goes on in peer review, is that the data, underlying data, plus the draft of the manuscript of the article, is supplied, is made available to the reviewers.

THE COURT: Any evidence that that's what was done here, or merely that the articles were sent to undetermined peers who read the article and said, "This is something you ought to publish; it looks okay to us"?

MR. GOOD: Well, my understanding is that the practice is to make the underlying data available to the peer reviewers. And what I'm saying to the Court is that, in addition to that, the performance of Dr. Raskin in these studies as the examiner, was verified by someone else. The fact that his name is on the article, it seems to me, doesn't in any way, it seems to me, undermine the independence of these evaluations.

If the issue is whether or not his work was independently verified by someone else as to the accuracy, if the Court is saying that the fact that his name is also as an author, that that undermines confidence in the accuracy of the independent evaluator who's identified in the article, then so be it. But what I'm saying to the Court is that I don't think there's any reason to doubt the integrity of the people who were involved.

THE COURT: It's not a question of doubting people's integrity. Good heavens, you don't have to put it into pejorative terms. The question is whether it's independently verified. "Independently" means --

MR. GOOD: Someone else.

THE COURT: -- someone else. That's what "independently" means. Now, do you have copies of these articles?

MR. GOOD: Yes, they were attached to Dr. Raskin's affidavit. And I can refer, for example, to a field study, "The Validity of the Directed Lie Control Question." Those charts were blindly evaluated.

THE COURT: Wait a minute, excuse me. The copy that I got of Dr. Raskin's --

MR. JALELIAN: Your Honor, if I may, paragraph five refers to Exhibit 10 in Dr. Honts' second affidavit.

THE COURT: Yes.

MR. JALELIAN: And Exhibit 4 is the second part of it.

THE COURT: Here's an article, "Psychopathy and Detection of Deception in a Prison Population," the 1978 article referred to. It shows that it's by David C. Raskin of the University of Utah, and Robert D. Hare of the University of British Columbia. The abstract, in relevant extract says, "The effectiveness of control question techniques in differentiating truth and deception was demonstrated in psychopathic and non-psychopathic criminals in a mock crime situation and the generalization of the results to the field situation is discussed."

And then later on, on page 133, it says, "The results of this study clearly demonstrate the effectiveness of the control question technique in detecting deception employing a mock crime paradigm with a population of prison inmates."

Now, I'll give you, as I said I would, tomorrow to argue. But I suggest that you comb that article and find something that indicates that this was independently done. Because I must tell you that the article, as I read it, says, "I, Raskin, and I, Hare, we, Raskin and Hare, reviewed Raskin's work and found it to be okay." That is not what I believe Stewart to mean when it talks about "independent."

Now, similarly, with respect to the "Journal of Police Science and Administration" article, that's produced by Professor Honts and Professor Raskin. The evidence in front of me undisputed was that Dr. Honts is Dr. Raskin's protegee, and that by no means is pejorative, but Dr. Raskin directed Dr. Honts' education in this area, that is graduate education. And that Dr. Honts is, therefore, not, on that alone, independent. Furthermore, the text of the article indicates, as the other one did, that these two authors say that Raskin's work is valid.

"This study," they conclude, "adds support for the validity of field applications of properly qualified control question tests by qualified examiners."

Well, there's nothing wrong with somebody believing fervently in the accuracy and the value of his research. But I'm not conducting that kind of an inquiry. I'm conducting a very narrow inquiry, limited for me by the Supreme Judicial Court, which says there has to be independent verification, "and independently controlled tests."

I'm not drawing any final conclusions now, but you're on notice that, unless you can persuade me that my reading of these articles, or my interpretation of Stewart is wrong, I'm going to exclude the evidence on the basis of the failure to have independent verification.

Now, that's prescinding from anything else that I may take into account in the course of hearing your arguments. It may very well be that I would exclude on some other grounds, or it may very well be that you'll persuade me tomorrow, and that you'll persuade me on the rest of what you have to persuade me. But I thought it was a fairness to you frankly to tell you where the real sticking point is.

MR. GOOD: I appreciate that.

THE COURT: Because that's what you're going to have to spend some time and attention on.

MR. GOOD: Very well. I appreciate that.

THE COURT: All right, gentlemen and lady, will ten o'clock tomorrow be convenient for everyone?

MR. JALELIAN: That's convenient for the Commonwealth.

MR. GOOD: Your Honor, I wanted to also, since, just in case -- I don't know how Your Honor feels about this. Your Honor, as you know, has the letter that we wrote to the Court prior to the polygraph examination. And I thought --

THE COURT: That's sealed.

MR. GOOD: That's sealed. And I thought that since it, to whatever extent one issue in the case at this hearing might be --

THE COURT: Are you asking me to unseal it?

MR. GOOD: I was going to give a copy to the Commonwealth.

THE COURT: Well, that's the best kind of unsealing.

MR. GOOD: And I would offer that evidence only on the issue of, which hasn't been a big issue, on the issue of a friendly polygraph type issue, that I wanted --

THE COURT: Well, I think we've pretty well covered in all sorts of ways how the polygraph, this particular test was conducted, in terms of access, that is in terms of the room that was made available, and the correction officials who were watching. You may make what use of it you wish tomorrow.

MR. GOOD: It's already in the Court's file. Does Your Honor want another copy for the record?

THE COURT: I don't think I need it. I'll wait to see what use you make of it in your argument tomorrow. And if it's necessary for me to look at it, I'll look at it.

MR. GOOD: The only other item that I know of now, Your Honor, is, we didn't get a chance to talk over lunch over that one partial exhibit, and I'll talk with Mr. Jalelian after court.

MR. JALELIAN: It's my intention, Your Honor, and I'm speaking both to the Court and Mr. Good at this time, is to have this discussed and then pre-mark or mark all of that which is before the Court now but just formally done.

THE COURT: Very well.

MR. JALELIAN: Thank you.

THE COURT: All right, thank you. We'll see you at ten o'clock tomorrow.

I, Erika Goldberg, an Official Court Reporter and Notary Public in and for the Commonwealth of Massachusetts, do hereby certify that the foregoing transcript, pages 3 thru 200, represent a complete, true and accurate transcription of my tape-recorded notes, taken in the matter of Commonwealth versus Louise Woodward taken on July 15, 1997 to the best of my knowledge, skills and ability.

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