BY MR. BOSTWICK:
Q Mr. Backster, the polygraph instrument is not an infallible device for telling truth and falsity; is it?
A No, it is not.
Q And sometimes when people are telling the truth, it indicates that they are being deceptive; does it not?
A On issues that are not intense, I would say that there is a possibility certainly of that happening.
Q And in fact the accuracy rate in terms of whether a lie detector test can tell whether someone is lying or not varies between maybe 70 to 90 percent; isn't that correct?
A The figures you're mentioning relate to laboratory studies, not field studies.
Q But isn't it correct?
A That laboratory studies do show, or that it could be as low as 70 percent or as high as 90 percent, yes, that's correct.
Q And that you have no way, as a polygrapher, of telling when the error occurs or doesn't occur; isn't that correct also?
A We can work on probability, and there is a scale to tell you the probability of your accuracy, depending on the intensity of the case, the adequacy of your case information, and the distinctness of the issue that you're pursuing.
Q Isn't it true that the questionable accuracy of polygraph examinations is one reason that it's not admitted in criminal trials in federal courts?
MR. KORNSTEIN: Objection, your Honor. Calls for legal conclusion.
MR. BOSTWICK: Your Honor, I don't think --
THE COURT: Let's find out if he knows, first of all. Do you know about this subject?
THE WITNESS: Yes. I can talk about it.
THE COURT: All right. You may answer.
THE WITNESS: What was your question again, Counselor?
BY MR. BOSTWICK:
Q Isn't it true that the questionable accuracy of polygraph examinations is one of the reasons that it is not allowed as evidence in federal courts?
A I would state that it would relate more to the questionable qualifications of the polygraph examiners than it would the technique itself.
Q Have you, as a polygraph examiner, ever testified in a criminal case in which your polygraph results were admitted in evidence?
A Absolutely.
Q How many times?
A Ah, I can -- I have an itinerary of my cases; but I've been the chief witness for the Department of Justice on several occasions and also for major defense attorneys in federal court where the -- are you talking of when I've testified concerning my own case results, or where I've testified in regard to anyone's results in federal court?
Q No, your own case results.
A May I look at my notes for that?
Q Certainly.
A Well, I helped with laying foundation in the Medina case, which was the United States vs. Medina in the Mai Lai massacre case.
Q When you say you helped in laying a foundation, are you saying that the evidence was admissible?
A Yes, it was.
Q And are you saying that it was not reversed on appeal?
A No, it was not, no.
Q Any others?
A Yes. United States vs. Zeiger (phonetic) case in 1972.
Q Was that admitted?
A Yes, it was.
Q Was it reversed on appeal?
A Not to my knowledge, it wasn't. And the U.S. vs. DeLorean case, I was quite active as the chief government witness in that in the polygraph phase of the trial; it was a 19-day preliminary hearing on polygraph admissibility, and at the end of that the defense's polygraph results were discounted; and then the government did not choose to go ahead with theirs which was supported by testimony. And there are a number of others. I don't have a complete listing with me; but by stipulation, the test can be admitted quite often, in fact, if both sides agree in advance, which would seem to be a reflection that the technique can be accurate and --
Q As long as both sides agree; isn't that correct?
A Yes, if both sides agree.
MR. KORNSTEIN: Objection. Counsel is interrupting the witness.
THE COURT: Yes. Let him finish his answer.
THE WITNESS: -- that -- it would seem to be a reflection that the technique is accurate; but the problem is, do you have a qualified examiner.
Q Now, you've named three times in 39 years you've been practicing that you can recall that it has been admitted into evidence when you have testified.
A If you'd like more, I can look in another folder.
Q Do you know the number?
A I beg your pardon?
Q Do you know the number?
A I would say maybe ten occasions.
Q Ten occasions?
A Yes.
Q And how many times have you testified?
A Well, between 40 and 50 occasions.
Q Are you aware of an article in Hastings Law Journal, known as the -- or titled "The Deceptive Certainty of the Lie Detector"?
A No, I'm not acquainted with that particular article.
MR. BOSTWICK: Your Honor, we'd like to -- the Court to take judicial notice of the case of Brown vs. Darcey, 783 F. 2d, 1389, Ninth Circuit 1986.
THE COURT: I'll take judicial notice of it.
BY MR. BOSTWICK:
Q When you said that Dr. MacDonald was, in your opinion, deceptive on the questions, could you tell from the results of the test whether any one answer was a true answer or a false answer?
A Well, in the polygraph testing procedure where it is adequately applied, the person to the control questions will attempt deception; but the deception will not show in the typical way, because the person is focusing on that block of time containing the relevant question that will be most injurious to them if it leads the investigation in a certain way.
Q As to the nine or ten questions that you asked him that you said were the specific questions on the subject, could you tell whether Dr. MacDonald was telling the truth or was not telling the truth on each question?
A Each of the relevant questions, I could.
Q You could tell that?
A Yes.
Q And on each of those questions, it was your opinion that he was being deceptive?
A That is correct.
Q Now, isn't it true that extreme emotional tension can affect the reliability of lie detector exams?
A The problem with emotional tension during a polygraph examination was the reason for the introduction by John E. Reid of the reviewed control question procedure. This was introduced, oh, way back in 1948. It took quite a while for the field to start applying that concept. But the purpose of the control question was to allow the person to focus nervous energy on that question that would involve uncertainty or deception about a background area, so that they would not falsely show to the relevant questions. So that is the prime purpose of the control question.
Q But isn't it true that extreme emotional anxiety or tension can affect the results of polygraph tests?
A It could produce general nervous tension, which would produce an inconclusive result.
Q And isn't it also true that respiratory disorders will also affect the results of a polygraph test?
A Well, disorders of this type would equally affect the control question and the relevant question. They would not be selective in nature. So they are not a problem.
Q You're saying that respiratory problems play no part whatsoever, because the control questions will neutralize whatever problems a person has that is taking a lie detector test?
A Well, anything that was a defect in regard to medical problems would equally affect both control questions and relevant questions, which would produce, again, an inconclusive result. You would not get a focusing or a flow.
Q Well, are you trying to say that, in fact, there are no errors in the lie detector test?
A No, I'm not saying that at all.
Q What causes the errors in the lie detector test?
A An incompetent examiner would be one reason; a case that did not qualify for the optimum use of the polygraph, that didn't meet the criteria as far as the three requirements that I mentioned before were concerned; the adequacy of case information upon which to formulate your questions; the strength of issue and the distinctness of issue.
Q I'd like to read to you from the case that the judge just took judicial notice of. It says that "Respiratory problems and high stress levels will affect the accuracy of a polygraph examination." You don't disagree with that; do you?
A If the judge meant that --
THE COURT: Wait just a minute. Let's clarify this now. I don't know who -- is that a witness' testimony or what is that quote?
MR. BOSTWICK: Your Honor, that is from the case itself, the opinion by Judge Cynthia Hall and the citing of the article by Heileman on the deceptive certainty of the lie detector.
THE COURT: Are these her words?
MR. BOSTWICK: These -- two things. First, they are her words describing a witness, an expert witness' testimony upon which the opinion relies, and her words describing the results of an article in the Hastings Law Journal which is footnoted.
THE COURT: Very well. All right.
THE WITNESS: What was your question, please?
BY MR. BOSTWICK:
Q Are you disputing the fact that respiratory problems and high stress levels can affect the accuracy of a polygraph examination?
A They can create inconclusive results.
Q But that they cannot affect the accuracy?
A They would not affect error; they would create inconclusive results where the charts could not be properly interpreted.
Q Have you ever made a mistake in conducting a polygraph exam?
A I'm sure I have; but I'm also sure that it has not been brought to my attention, where it is a case that qualifies, as far as the reliability estimate and rating is concerned, as in a case of a triple murder.
Q But you don't know of any errors you've made; is that right?
A In a case of that quality, I know of none that's been brought to my attention.
Q Do you know of any errors you've made in 39 years of conducting polygraph exams?
A Yes. I'm sure I have.
Q Do you remember any of them?
A Oh, not offhand. I guess they are the things you try to forget, but they were inconsequential cases.
Q You didn't bring a list of those with you?
A No, no. I don't carry that with me.
Q Were you aware of the fact that when you took Dr. MacDonald's examination, that he was still suffering from a collapsed lung?