Because it is now a public matter (judicial hearing and accompanying media coverage, http://seattlepi.nwsource.com/business/133783_znetix06.html) I feel that I can comment on the captioned matter, one that I recently provided expert testimony regarding.  My testimony related to an analysis of a Probable Lie Control Question Test (PLCQT) performed by an FBI agent polygraph examiner.  In addition to that which I have frequently and generally said in criticism of the CQT, I specifically questioned the emotional affect that would be contained in relevant questions that were posed to an examinee not regarding his activities or planned activities but those of others.  Apparently the presiding judge agreed that this was no valid assessment of the facts involved—independent of whatever those facts might happen to be… 

And now for the reason for this post-hearing commentary (not really the case at hand)…   I believe that there was a reasonable way for the polygraph examiner involved (at no time did I question his competence as a polygraph operator nor his credentials as a law enforcement officer, interviewer, interrogator, or criminal investigator) to have conducted a meaningful and diagnostically sound polygraph examination.  Although the defense in this case may not have agreed (I don’t know what leverage the government had in this matter), this was an ideal case to at least very seriously consider a concealed information test (could have been done by the examiner who conducted the CQT utilizing the instrument he employed).  The allegation coming from the ultimate CQT examinee and accuser was that two other gentlemen had conspired to murder an FBI agent (obviously a matter of legitimate concern for the Bureau and which sound judgment would require serious inquiry and some resolution).   The information made available to the Bureau was allegedly provided by the accuser’s attorney and directly to the Bureau.  The allegation would of necessity contained details of the when, how, where, and the what of this plan to commit murder and the associated conspiracy as well as the specific details of how this matter was presented by the alleged co-conspirators to their soon-to-be accuser.  This was current information and information that could be easily be protected from dissemination (to either the public or the two incarcerated defendants (defendants in a separate financial crime(s) matter).  This would have been an ideal situation to perform a concealed information test (guilty knowledge test) on one or both of the incarcerated gentlemen.  Again, I realize that this may not have been agreed to by the defense, but I do believe it was an option that was apparently not pursued and one that should have been vigorously pursued.  

This may well be an opportunity lost and representative of many similar opportunities…and one that, had it been taken advantage of (a concealed information test performed), I would gladly have supported through testimony as opposed to the testimony I offered critical of the CQT that was performed.  I am convinced (albeit not being familiar with him nor the specifics of that which led to the examination performed in this case) that the examiner involved was likely following Bureau procedure in conducting such an exam and likely conducted it in accordance with generally accepted standards.  It is for that reason (an accepted industry and agency procedure which is so short-sighted and bereft of diagnostic power) that I do this little bit of writing.  I would like to think that the Bureau (and representatives of other agencies who read this) would fully avail themselves of the tools they already possess.  You might notice that, although I represent Brain Fingerprinting Laboratories, and do believe that Brain Fingerprinting would also have been a reasonable consideration in this matter, that I have specifically said that the Bureau might well have pursued the matter absent Brain Fingerprinting (and/or other new technology) utilizing the tools and personnel that it already possesses.

Drew,

I have to say I am a bit disconcerted about this whole thing.

First of all, when it comes to corroborating the testimony of the accuser (PARK), I don't see where a GKT could have worked (he was the only source of case info).  The Bureau used the only tool left (CQT) to corroborate (or refute) a very serious accusation.

In regard to the examination (by GKT) of the accused:  you, yourself, stated the main obstacle -- the defense attorneys would not have agreed to it.  Perhaps there was good reason not to agree to it.

Here would be the other problem to using GKT:  The specific facts would be based on testimony of Park.  It would be based on his memory.  Details (times, dates, etc) might not have been given in his presence.  If they were, they would be based on his memory (I doubt he was in his cell taking notes in the accused's presence).  So the keys produced might differ in the memory of the accused from those given by Park, thus rendering the test invalid (possible false negative).  

GKT is much more reliable with concrete facts (testimony is rarely completely concrete) that the perpetrator would definitely recall from the offense.  Crime scene characteristics are much better than things said and remembered. 

The most important fact in this case was whether the suspects did or did not conspire to murder federal agents.  Other details were not important, yet in the GKT you propose, testimonial error could have used details to to produce a false negative.  A moot point however, since the defense likely was not going to allow the exam.

Drew, I admire your work in CNS technology, but this apparent pandering to defense attorneys (I assume you were paid for your work for the defense) is troubling.  You must be quite popular with your former Bureau colleagues (no longer limited to examiners).  Please stick to constructive research.  

I hope these persons don't carry out a plan to murder LE agents.  Would you blame polygraph or the bureau if they do?!!

Public Servant,

Nice to see you as always,

You write:

Quote:


As well you and others should be who seek to utilize purported diagnostic tools (e.g., CQT exams) lacking diagnostic validity (I acknowledge some (although an unknown) degree of utility in those cases resulting in admissions and/or confessions which can be independently corroborated) ...

You further write:

Quote:


This is kind of like saying if you have a job that requires a wrench and all you have is a screwdriver with you, go ahead and use the screwdriver...I don't think so....and continuing with my analogy, I believe the apparent lack of effort in pursuing (including requesting such of the defense) the much preferable GKT is analogous to not really looking for the right tool in the first place...

You further write:

Quote:


I think this line of reasoning is rather specious--all that is known about this matter (as far as I have been made aware) comes through one accuser.  If there was an absence of credible specific information provided by this one source, then there would have been no basis to take such an allegation seriously in the first place--an allegation that would have to be considered in any regard with a careful eye in that it was allegedly offered by a known and established liar.  I find it highly unlikely that an honest individual relating that which he had been told regarding a conspiracy to commit murder would not or could not provide many useful key items related to methods planned for the alleged murder, timing of the alleged act, as well as the circumstances (location, time of day, etc) and nature of the event/act in which the allegation was made by the alleged co-conspirators, etc....

You further write:

Quote:


Although I value friends and approval of present and former colleagues as much as you and others, such a comment in connection with courtroom testimony would suggest to me that if this would be a consideration for you, your testimony should be summarily discounted by any and all courts and that you should forever be impeached as a result of such a personally held and publicly stated opinion.  The basis for proper expert testimony relates to an honest appraisal of the facts at hand and in no way should be influenced by the winning or losing of friends in the short term or long term.  I am quite disappointed with such a comment from you as well as your blanket (no qualifications/no explanations as to how it might relate to this case) characterization of testifying for the defense as pandering.  Regards as always…

Public Servant,

I will address the other aspects of your questions and comments as they apply to the issue of a possible concealed information test in this case when i have more time.  With regard to the first issue you raise, I would suggest that if you don't want your concerns about friends confused with your concerns about proper expert testimony that you not bring up the former in connection with a discussion dealing with the latter.  The latter is immaterial and irrelevant at best and should not in any way be associated with the former.  The discussion and this thread had nothing to do with old times and friends at the Bureau but specifically with expert testimony as well as the possibility of a having done a concealed information test in the matter at hand.  You have only yourself to blame if there is any lingering question(s) about your motives when providing testifying.  Note also that I did not categorically state that your testimony would be so affected and directed, but pointed out how clearly wrong such would be if that were the case.  Again I can only advise you if and when you ever do testify that you never make any references in court to the impact of that testimony on friends and colleagues.  Again, I don’t have time to deal with it now, but I take great exception to your commentary suggesting that those who testify for the defense on polygraph examinations conducted by another are prostituting Ph.D.s.  Regards,

Drew,

First of all, perhaps, "prostituting" was a bit harsh a term.  No doubt the defendent has a right to present a defense; and if evidence of culpability will be presented  he has the right to "attack" that evidence by reasonable means.  

However, if I were you, and I looked at the facts of this case, I would decline to provide the testimony desired.  The defense wanted someone to give some doubt to the polygraph results.  However, this doubt you provided them did not disprove the allegation and likely dismissed a case against persons who were a danger to society.  They used your "expert" testimony to speculate that the polygraph was a false positive.  I would like to think that most, regardless of their leanings on the issue of CQT, would not allow their expertise to be used for such a stretch. (What I fail to understand is why the judge used this to override the informatn testimony -- why would Park make this up?-- and why didn't prosecution have a rebuttal witness). 

No doubt you were sought out by defense counsel due to your anti-polygraph leanings.  If, say, Dr. Barland had been called, an equally (perhaps more) qualified  expert, the expert testimony would likely have been in favor of the validity of the exam and absent your opinin that CMs are not detectable.  Perhaps you even sought to provide this testimony to present your views to the court system and seek case precedence which could end CQT exams in LE (and I thought you were only after screening). 

I characterized this testimony negatively, not because of the substance, but because of its use.  I would not care if you were providing culpatory or exculpatory evidence; when you have a choice, you should make a decision (to provide such testimony) based on whether the use of the testimony is appropriate and for the common good.  I think this was for neither.  I am entitled to that opinion and I'm sure I am not alone.

I have never had a choice in my testimony.  I have always been summoned to court as a witness (investigator).  The testimony was always truthful, whether given for defense or prosecution (and sometimes not polular with my co-workers).  I was giving testimony in such a capacity long before I became an examiner, and wil continue to due so with the utmost integrity.

Your insinuation that I would jeopardize my integrity due to popularity was GROUNDLESS SPIN!!  My mention of your popularity with LE colleagues was merely a jab regarding your CHOICE to give testimony in this instance.  If you feel you made a good moral decision to provide such testimony, then you should have not have a need to question my courtroom integrity in response.  I did not question the integrity of your testimony, just its use and your decision to provide it.  I'd have expected such low level comments from the poster just before your response, but I did not expect such from you.

Public Servant,

Are you suggesting that retired law enforcement officers should not voluntarily provide expert testimony for the defense when the charges are serious? Isn't justice better served by all relevant testimony being heard?

You've accused Drew of having given "speculative" testimony. I don't see on what basis you make that claim. Specifically what testimony did Drew provide that you believe to be speculative?

Is not CQT polygraphy itself an exercise in speculation? (After the National Academy of Sciences report, virtually no one is seriously claiming that polygraphy has any scientific basis.)

You asserted that in the case in which Drew testified, "...The Bureau used the only tool left (CQT) to corroborate (or refute) a very serious accusation.... " Drew replied (quite reasonably, I think) that using the CQT in this situation was liking using a screwdriver for a job that requires a wrench, to which you replied, "The screwdriver fit quite well here, my friend." On what basis do you make this assertion?

I'm glad that you've clarified that your remark about Drew's popularity with his former colleagues was "merely a jab," and that you would not jeapordize your integrity over concerns about popularity. But I think your jab was an inappropriate and unfortunate one, that, in the context in which it appeared, logically leads to the inference that you might condition your testimony on the anticipated reaction of colleagues.

What I still find troubling, though, is your apparent suggestion that someone such as Drew (that is, someone who is under no compulsion to testify) should voluntarily withhold relevant expert testimony depending on the way one thinks the case should be decided.

Public Servant,

I will defer to Drew regarding the applicability of the GKT to the case at hand, but would like to address some of the other points you raised. You write:

Quote:


As I wrote earlier, I find this notion troubling. You seem to be saying that expert witnesses like Drew should voluntarily withhold relevant expert testimony depending on the way one thinks the case should be decided. Isn't justice better served when the trier of fact has access to as much relevant evidence as possible?

Drew's testimony that polygraph examinations can be defeated through countermeasures is hardly speculative. It has been demonstrated through peer-reviewed research. The U.S. Government itself has made this very argument before the U.S. Supreme Court in arguing against the admissibility of polygraph evidence. In U.S. v. Scheffer, DOJ lawyer Michael R. Dreeben noted that "[t]he fundamental unreliability of polygraph evidence is underscored…because of the possibility that countermeasures can defeat any test."

Making the observation that CQT polygraphy can be beaten through the use of countermeasures is not the same as arguing that a person did in fact use countermeasures. But the very fact that polygraphy is vulnerable to countermeasures speaks to the unreliability of polygraph results.

You write:

Quote:


You've drawn a false analogy here. Drew wasn't arguing that Park should be disbelieved, but rather that his having passed a polygraph examination is not reliable evidence that he told the truth.

Finally, I wish to clarify that it was not at all my intention to insinuate that you base your testimony on popularity. To the contrary, and as I noted, I'm glad that you clarified that you do not base your testimony on popularity, and that your remark about it to Drew was "merely a jab." I'm sorry if my remarks may have appeared to be facetious or tongue-in-cheek; I didn't intend them to be.

But I must respectfully disagree with your assertion that "[n]othing in [your] post insinuated [you] would ever consider basing testimony on popularity." I think the wording of your first reply to Drew regrettably lent itself to that interpretation.

George, 

After making my last post, I engaged in an unrelated conversation with a fellow investigator which reminded me of an anectdotal reply to your assertion that expert opinion should be provided whenever requested.

A few years back I was involved in obtaining a confession to murder (no poly involved).  The subject provided both a written statement and a video-taped confession.

As the trial date approached, I was informed by the prosecutor that defense was consulting an expert on false confessions (psychiatrist or psychologist, I believe).  Just prior to the trial, I was informed that the expert witness was not going to testify.   

After the trial , I heard that the expert witness reviewed the statements and circumstances surrounding the statements and apparently he felt the statements did not fit the criteria of his research for false statements (and he might also have felt that the physical evidence indicated the confession was not false).   

Following your assertion, this professional should have provided testimony about how a confession could be false, even though he believed this one was not.   

In my opinion, this was a man of integrity because he would not allow his expertise to be misused (and thus possibly discredited) to disprove (or provide doubt to) something it did not.  Whether it was his decision or the defense counsel's decision to pull him from the witness list, no doubt it was his candor with counsel that prevented him from testifying.  Perhaps this display integrity applied to counsel and expert alike.

Now mind you, I only have word of mouth information about why this expert did not testify.  But given this set of circumstances, am I wrong here?  Do you think this expert witness was somehow morally flawed?  Should he have testified about possibilities of false confession if he did not believe it occurred in the case at hand?
   
Drew testified about CMs to discredit the exam and ultimately the witness; yet he had no reason to beleive they had been practiced.  That's the bottom line to my view on that issue.

Cheers.