MR. DAVIS: Your Honor, could we approach the bench?
(THE FOLLOWING CONFERENCE TOOK PLACE AT THE BENCH)
MR. DAVIS: If they are putting the polygraph expert on to go through in terms of reviewing charts and rendering an opinion as to what the charts show and -- this man is also, as I understand it, at least theoretically an expert in the field of interrogation -- I don't know it that's the reason they're putting him on. But if they are putting him on to say, "These charts indicate this," we would be objecting --
THE COURT: I'm not going to allow a witness to speculate on whether or not the machine was correct or the interpretation of the readings were incorrect. That's just not in issue, it's not admissible
MR. STIDHAM: Your Honor, it is in issue.
THE COURT: No, it's not.
MR. STIDHAM: Have you had an opportunity to review our brief in this regard?
THE COURT: Yeah, sure have. And it is going to be my finding on that that I'm not going to allow anyone to speculate on the machine's results or whether or not it applies to guilt or innocence or whether or not the person was truthful or deceitful. I will, however, allow testimony about the polygraph and whether or not that polygraph could have induced a person to make a statement that they would not have otherwise made. But to allow one expert to refute another one on whether or not the results of the polygraph were accurate or how they interpret them when the results themselves aren't admissible under any circumstances
MR. STIDHAM: We are talking about the voluntariness of the confession, and the issue is not so much -- our argument is twofold: A, that it should be offered for any purposes because it goes to the totality of the circumstances. In other words the witness, assuming that he is going to testify to this, that there's no indication of deception on any of the charts. He should be allowed to testify to that so the Court can determine the totality of the circumstances regarding this confession. Tanner versus State, the ALR citation, your Honor, sets that forth very, very clearly. And when you analyze that with Patrick versus State and Rock versus Arkansas, it becomes clear that any evidence tending to show the innocence of the accused is admissible not only at the suppression hearing but also at the trial itself. Your Honor, we would submit that this testimony is of vital importance to determine whether or not this statement as given by Mr. Misskelley -- both statements -- are voluntary and therefore admissible. To clude those, in my opinion with all due respect to the Court, I believe that we may end up having to retry that issue.
THE COURT: Tell me real short and in a concise sentence what it is you expect this expert to testify to.
MR. STIDHAM: Your Honor, I expect him to testify pursuant to his report which indicates that after review of the polygraph charts, there were no indications of deceptions whatsoever.
THE COURT: In other words you want him to testify in his opinion that the accused was not showing deception.
MR. STIDHAM: That's one of the things --
(MR. STIDHAM, MR. CROW, AND MR. DAVIS SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)
THE COURT: -- that's totally and completely irrelevant and inadmissible.
MR. DAVIS: He says that the Tanner case is the basis of this -- and he also says it is the number one authority. In the Tanner case there was no polygraph exam even given. The appellant appealed saying that it was error to have allowed the State to mention that they were preparing him for a polygraph test when he confessed. Number one, there was no polygraph given and the key thing is there were no results which could have been thrown in the hopper that could have confused the issue.
THE COURT: My ruling is that the results of the polygraph test are not admissible evidence and, therefore, no expert -- state or defense -- is going to be able to testify to the veracity of the polygraph machine because it's not accepted in this state as credible evidence and I'm not --
(MR. STIDHAM, MR., CROW AND MR. DAVIS SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)
THE COURT: I won't accept it one way or the other. I don't care whether he says he was telling the truth or whether he says he was lying.
MR. STIDHAM: We would like to make an offer of proof regarding this and also for economy reasons we'd like to make an offer of proof as to what he would testify at the actual trial itself and submit a transcript of that --
THE COURT: I'm not barring his testimony. He may have something --
(THE COURT AND MR. STIDHAM SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)
MR. STIDHAM: -- that will be barred.
MR. CROW: As to our arguments I would request that the Court make my brief I wrote as part of the record.
THE COURT: it is part of the file.
MR. CROW: All those issues were raised, and I don't want to waive any issues that may have been argued in this brief exchange.
(RETURN TO OPEN COURT)
THE COURT: Let's proceed.
WARREN HOLMES
having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:
DIRECT EXAMINATION BY MR. STIDHAM:
Q. Mr. Holmes, will you please state your name?
A. Warren D. Holmes. H-O-L-M-E-S.
Q. What is your occupation?
A. Polygraph examiner, commonly known as a lie detector expert.
Q. Can you tell us about your background?
A. I'm a graduate of the Keeler Polygraph Institute in Chicago, graduated there in 1955. I was with the Miami Police Department from 1950 to 1963. I left as a detective sergeant in charge of the Lie Detection Bureau to open up my own business. I'm a charter and life member of the American Polygraph Association, a charter and life member of the Florida polygraph Association. I'm a former president of the Florida Polygraph Association, former president of the Academy of Scientific Interrogation, which is the predecessor name to the American Polygraph Association. I was consultant to the United States Senate on assassinations. I lecture putting on interrogational seminars for the F.B.I., the C.I.A. and other government agencies. I have lectured ten years at the Canadian Police College on homicide interrogations and investigations. I lecture each year at the Department of Public Safety of Texas, the Texas rangers, primarily, and I conduct interrogational seminars throughout the United States -- ten to fifteen a ar.
Q. I understand you conducted the polygraph examinations on the John F. Kennedy assassination?
A. Yes.
Q. And the Doctor Martin Luther King assassination?
A. Yes.
Q. Watergate?
A. Yes.
Q. You also worked on the William Kennedy Smith case?
A. Yes.
Q. Have you been qualified as an expert in the area of polygraph examinations in any other states in the country?
A. (NO RESPONSE)
Q. Let me rephrase that. Have you been qualified as an expert by any courts?
A. Yes.
Q. How many times have you been qualified on the subject of polygraph examinations?
A. Many times primarily in the State of Florida.
Q. Have you ever been qualified in the area of interrogation techniques or police interrogation techniques?
A. Yes. Many times.
Q. Have you ever worked on a case involving a false Confession?
A. Many.
Q. How many homicide cases have you worked on, or do you know?
A. I have administered polygraph examinations to a little over twelve hundred people who were suspected of the act of murder. I have taken hundreds of murder confessions.
Q. Have you ever taken a false confession?
A. Yes. Several.
Q. What would an interrogator look for when they were receiving a confession that might tend to point out that this is a false confession?
A. As I illustrated to you in our conversation previously, there are about eleven different things that you look -
Q. Let me stop you for a minute.
MR. STIDHAM: Your Honor, I ask that the witness be qualified as an expert in interrogation tactics and techniques. He obviously has over forty years --I should say thirty-eight years of experience in various police agencies. He is obviously an expert in that area.
MR. DAVIS: Your Honor, may I voir dire him just a second?
THE COURT: Yes.
VOIR DIRE EXAMINATION
BY MR. DAVIS:
Q. Mr. Holmes, did you at one time -- I realize this is a long time ago -- would you have conducted an in-service training program for the Memphis P.D.
A. Yes.
Q. -- back in 1981?
A. Yes.
Q. Could you kind of glance through this for me to see if that would -- (HANDING) if I am correct in assuming that that is the booklet you provided them regarding interrogation techniques?
A. (EXAMINING) Yes.
Q. And so have there -- is your opinion -- have you had any training in addition to what you had at that point in 1981 that gives you superior qualifications now or greater insight into the field of interrogation than you had back in 1981?
A. My entire career is empirical in nature. It is one case after another for thirty-nine years. It's all empirical in nature.
Q. Are there any dramatic changes that have occurred in the tactics for interrogation since back in 1981?
A. No.
MR. STIDHAM: Again we'd ask that he be qualified as an expert in the field of interrogation.
THE COURT: Go ahead.
CONTINUED DIRECT EXAMINATION BY MR. STIDHAM:
Q. You started to testify earlier -- and I rudely interrupted you -- about things that the interrogator would look for when receiving a confession from a suspect that might indicate it is a false confession. What are those factors?
A. Number one, they don't tell you anything you don't already know. Number two, what they do say doesn't jibe with the crime scene analysis or the physical evidence or any investigation that has been done up to that point. Number three, if they don't relate it in a narrative form,'ll say, "At the time we were doing this some man was walking his dog off in the distance," or, "Just at the precise moment I was doing this there was an automobile accident," and later you will find out that actually occurred. You look for those incidental details they can offer. Ah, if it is a valid confession and you make a supposition and you're wrong, they will tell you're wrong. They'll answer every question directly. You don't have to correct them if there is a contradiction in what they have to say. Ah, you don' to have to lead them in any way and they'll spontaneously offer information that you didn't even know about. If you were wrong in a supposition, they'll tell you that you were wrong, but mostly they just sound and look like they are telling the truth and what they say makes sense. So an experienced interrogator looks for all those factors to see if they are present. If they are not there, you have to have serious misgivings as to the validity of his confession.
Q. Are there things that can be done by a police interrogator while taking a confession to help limit the possibility of a false confession, or is that basically what you just told me?
A. Well, what happens is a waning of resistance primarily in about the fourth hour, and you have got to be very careful that the person just doesn't enter into this resignation and just say anything at all to get out of there. You have got to be careful of that. Obviously you cannot be telling him the key details of the crime. When he finally does confess, you have got to be able to weigh whether or not what he tells you is commensurate with the case facts as you know them.
Q. You're talking about corroboration?
A. Yeah. You have got to have something you can hang your hat on that only the guilty person would know outside the investigators.
Q. Have you had an opportunity to examine the statements of Jessie Misskelley, Junior to the West Memphis Police Department on June third'?
A. Yes, I have.
Q. Have you identified any of those factors or anything in the transcripts that raise concern in your opinion?
A. Yeah, I'm concerned that he's wrong on two major points, the time factor, but primarily what the young boys were tied up with. He's done one of two things. Either he's uttered a totally false confession, or he's contrived a confession with false information that he intends to recant at a later time. I don't have any evidence that he's doing that because from what I understand about his IQ level, I'm not sure that he's that duplicitous in nature. What I don't like about his confession is he doesn't attribute any conversation during the crime to the boys. I don't like it that he doesn't express any feelings about the crime, how he felt at the time, how he feels now. I don't like the fact that he's giving wrong information about the ligature which should absolutely stand out in his mind, and I don't like the time factor. It would seem to me that despite his IQ level, he should know the difference between 9:00 in the morning and 5:00 P.M. and he somehow should know the difference between a rope and shoelaces,nd those things bother me a lot.
Q. Can a polygraph examination contribute to a false confession?
A. Unfortunately it can.
Q. How is that?
A. Because with some people it is a last hope. They think, "Okay, if I take this test and I pass it, you're going to get off my back," and then when they are told that the test indicates they are lying, that's the straw that breaks the camel's back, and then their will is beaten to a pulp, and then they just give in.
Q. So it is very important that the polygraph be conducted properly?
A. Yeah, it is, particularly with certain personality structures. You get somebody of low IQ and highly susceptible in personality structure who is concerned only with the immediate situation of getting home rather than the long term consequences of what he has to say. They always think they can straighten it out at a later date. They don't realize that they give the police a sword that they're going to stick in 'em, and they become an agent of their
MR. STIDHAM: Your Honor, at this time I would like to ask again that Mr. Holmes be allowed to be qualified as an expert in the area of polygraph examinations and he be allowed to testify with regard to his conclusions about the test that was given to Jessie Misskelley by Officer Durham. If the Court is not going to allow us to --- if the Court is not going to consider that in the totality of circumstances with regard --
THE COURT: I'm going to let him testily in this hearing, but unless my mind is drastically changed by something other than what I've seen or heard so far, the results of the polygraph are not admissible by a witness for the defense or a witness for the State. It is simply not credible evidence. The device is extremely fallible, particularly with people who are of borderline mentality as to whether or not they may even be able to completely lie or they may be completely truthful. The machine is just simply not that sophisticated, and it depends on an individual's interpretation. No court that I know of other than under special circumstances has allowed the results in court as far as the truthfulness of the subject. They may be admissible for other reasons but certainly not as to the validity of the test.
MR. STIDHAM: Your Honor, again our argument was two-pronged. We thought it would be admissible for the truth of the matter asserted.
THE COURT: Well, no, your whole theory is you can find some guy to come up and say that the test was deceptive and, therefore, if the test was deceptive, that the tactics used were misleading and that it induced a false confession. I understand your theory. it's a pretty good one, I guess. I'm going to allow you to go ahead for this hearing.
MR. STIDHAM: For purposes of the suppression hearing, you're going to allow him to testify about the results?
THE COURT: Yes.
MR. DAVIS: Your Honor, we strenuously object to that because of the fact that it's
THE COURT: I'm sure these newspaper and cameras are going to be blaring it all over the place. Of course, it has already been blared in the paper anyway.
MR. DAVIS: So far all they have is Mr. Stidham's version of that. If we proceed at the hearing, we are going to -- with tainted evidence -- we are going to proceed to present what comes under the veil of someone with authority but not admissible evidence that could easily taint the jury panel.
MR. STIDHAM: Your Honor, at the very, very least it is admissible to go towards the totality or the of circumstances.
THE COURT: I'm going to hear it in this hearing. Let ' s go.
BY MR. STIDHAM:
Q. Mr. Holmes, you have had an opportunity to examine the polygraph test that was performed on Jessie Lloyd Misskelley, Junior on June third?
A. Yes.
Q. Can you tell us what your findings were?
A. Well, they were different from the other examiner. He indicated he thought there was deception at the points in the graphs where the pertinent test questions were asked. I evaluated the charts, and I have come up with just the contrary opinion. I didn't feel that at the point where the pertinent test questions were asked that the defendant was deceptive in nature.
Q. What -- in your report you list some factors that trouble you. Could you explain those to the Court?
A. Well, this was an ideal case or what we call a peak attention test where you set up a series of questions where one is the key detail , and in this case there should have been a peak attention test regarding whether or not the boys were tied up with plastic tape or wire or shoelaces. And the theory being -- of the seven listed it the examinee reacts to the key one, he definitely has pertinent information with regard to the crime in question. So you keep taking that key detail and you shift it around in a series of different tests, and statistically it he reacts each and every time to the key detail, there's a large probability that he has intimate knowledge of the crime. Also, a peak attention test could have been conducted regarding the location of the clothes. Among experienced examiners -- particularly in murder cases -- peak attention tests are held in the highest esteem and both the Israelis and the Japanese -- that. is the only kind of test they run are peak attention tests because they believe it h the highest degree of validity. And in this case the shoelaces provided a real good opportunity to conduct a peak attention test. Unfortunately that wasn't done and had the defendant reacted each and every time to shoelaces, then we'd be looking at him with a fish eye saying he's probably involved in this. But there are other things beside that that bother me. When you conduct a polygraph examination and utilize control questions, you keep the control questions in the same e, to delineate his specific role in the crime, he should have been asked, "Were you present when the three little boys were killed? Did you kill any of these three boys yourself? Did you do anything to cause the deaths of any of these boys? Did you tie up any of these boys? Did you do anything to hurt any of these boys? Have you lied about where you were at the time of the killings?" Once they got this alleged confession and it was obvious to
THE COURT: Is it too late to do that now?
THE WITNESS: Not really. It might be a good idea if you got somebody that is independent. I have lost my objectivity in the case, and I'm sure Examiner Durham has, too. It you brought in an independent examiner, not connected with either the prosecution or the defense, I think he could sort it out.
BY MR. STIDHAM:
Q. Is it true that if an examiner didn't interpret the test results properly, that that might cause the interrogator to become more assertive and produce a false confession?
A. It's a catalyst. If the examiner goes out and says this guy is deceptive, he's involved, that's all those interrogators have to hear. That Gives them the enthusiasm to be more assertive in their accusatory format. Sure. It. is a catalyst.
Q. In your opinion did Mr. Durham fail to properly interpret these results?
A. Yes.
Q. Did he also fail to properly perform the test?
A. Yes.
THE COURT: Those questions are totally and completely improper. Go ahead. He can give his opinion as to what his findings were. Of course, he didn't even do the test. He just analyzed somebody else's test.
MR. STIDHAM: Your Honor, it is a test -- analyzing someone else's work.
THE COURT: Go ahead.
BY MR. STIDHAM
Q. Is it important when you're trying to corroborate a confession that you find things independent of the confession linking the suspect to the crime?
A. Absolutely. That is what you strive for when you take the confession, something that only the killer would know, some piece of physical evidence, some witness that he has that knows that he did it or confessed to. You're always looking for that corroboration. That's one of the things that disturbs me about the defendant's confession in this case. There's nothing you can hang your hat on.
Q. Does it bother you that they didn't take him to the crime scene?
A. That's the first thing you do. When you get a guy to so-to-speak verbally crap out what he did, you take him right to that crime scene. In this case there was some dispute as to what side of the creek he was on, where was he standing, where the banks were. That could have been resolved if he had been taken to the crime scene.
MR. STIDHAM: Your Honor. I would like to submit the report of Mr. Holmes into evidence.
THE COURT: It may be received for purposes of this hearing.
(DEFENDANT'S EXHIBIT SEVEN IS RECEIVED IN EVIDENCE)
MR. DAVIS: Your Honor, of course we would object to that on the same basis that we would object to any of his opinions regarding the polygraph results which is basically what that report contains.
THE COURT: I'm going to receive it just for the record.
CROSS EXAMINATION BY MR. DAVIS:
Q. Mr. Holmes, as I understand it, did I hear you say that you had lost your objectivity in regard to this case?
A. Yeah, I think-- I don't think the boy-- based on that confession is involved--
Q. That's not what I asked you--
MR. STIDHAM: Your Honor, if he would permit him to answer the question. He asked him why he lost his objectivity and now he doesn't want to hear the answer.
MR. DAVIS: No, he --
THE COURT: All right. I don't want any argument. Ask your question -- I'll sustain your objection. Rephrase your question.
BY MR. DAVIS:
Q. Did I understand you correctly to say that you had lost your objectivity in this case?
A. I had a feeling that your judge was going to ask me if I wanted to test this guy, and I was going to say I have already lost my objectivity. That's what I meant by that.
Q. But that was your statement?
A. Right.
MR. STIDHAM: May he be permitted to finish the answer he had begun'? Were you through?
THE WITNESS: I don't feel it would be proper for me to test the defendant because I've lost my objectivity regarding the polygraph.
BY MR. DAVIS:
Q. You gave a list of a number of items that you said were indicators of maybe an incorrect confession. Is that correct'?
A. Yes.
Q. Then you stated the most important thing in determining the truth of a confession and you said, "The most important thing of all is if they sound and look like they are telling the truth, then you can tell." That was your testimony?
A. Yes.
Q. And the person that is in the best position to determine if they sound like they are telling the truth, if they look like they are telling the truth is the person taking the confession. Would you agree with that?
A. Yes.
Q. You were not there when this confession was given?
A. No.
Q. So basically what you have done is listen to the officers testify?
A. I haven't heard the officers testify.
Q. Have you seen their investigative reports?
A. I have received -- yes. some reports from attorney Stidham.
Q. Have you seen the original polygraph charts? Yes.
Q. The original --
A. Not the originals. Copies. Excuse me.
Q. And what else besides the copy of the polygraph charts and reports that Mr. Stidham sent you have you used in formulating your opinion'?
A. The confession.
Q. Have you heard the tape of the confession --
A. No.
Q. -- where you can hear the defendant's voice?
No.
MR. STIDHAM: Your Honor, are they trying to impeach him on the fact that the Court wouldn't permit him to stay in the courtroom and listen to the testimony?
THE COURT: I don't know. Do you have an objection?
MR. STIDHAM: I asked for permission for the experts to be allowed to remain in the courtroom, and Mr. Ofshe was the only one who was allowed to remain in the courtroom. Now they're trying to impeach him on that.
THE COURT: Do you have an objection?
MR. STIDHAM: Yes. your Honor. I think it is an improper question.
THE COURT: Overruled.
BY MR. DAVIS:
Q. Basically what your opinion is based on your review of the polygraph charts and reports provided to you by Mr. Stidham?
A. True.
Q. And all a polygraph does is measure physiological responses, correct?
A. To stimuli.
Q. It does not tell you definitively who is telling the truth and who is not, correct?
A. We measure a symptom of the act of lying, but the existence of the symptom is the best evidence of lying.
Q. Sometimes.
A. Sometimes.
Q. And sometimes lying occurs when there's no physiological response, correct?
A. Correct.
Q. What we have here is your opinion versus the opinion of Mr. Durham?
A. True.
Q. And Mr. Durham is the one who gave the exam and was there present to observe the defendant when he made certain statements?
A. No, he denies that in his report. He says the defendant confessed to investigators later on, that he wasn't present when the defendant confessed --- in his report.
Q. You refer to the peak attention test as what should have been conducted, that that is the test that Officer Durham should have used?
A. Yes, sir.
Q. Were you aware at the time that Officer Durham conducted his test that at that point this defendant was not a suspect?
A. The case facts were known. He wasn't a suspect when they brought him in for the polygraph test?
Q. Yes, sir.
A. He had to be a suspect or there would be no reason to give the test. Why would he be asked do you know who did it and did you do it if he wasn't a suspect?
Q. Let me ask you this: Are you assuming in saying that the peak attention test was the one that should have been given in saying that are you assuming that he was a suspect at the time he was polygraphed?
A. Certainly he was a suspect. He was asked questions that clearly infer that whether or not he ever attended devil worshipping --
Q. I'm not asking you was he a suspect. I'm asking you were you assuming that as a fact when you said that it would be the preferred or customary operation to give him a peak attention--
A. I would assume that he was a suspect.
Q. If he were not a suspect, would that change? If you were going to polygraph someone who is not a suspect to determine
A. I can't think of a situation where you would test anybody who wasn't a suspect unless he was a witness and you were trying to corroborate the validity of his testimony. You just don't go around picking up people off the sidewalk and giving them polygraph tests. It he was brought in on a homicide case, he has to be a suspect.
Q. All right. Well, let me ask you this: You indicated that witnesses are polygraphed to determine if you can corroborate their testimony?
A. Right.
Q. Is it not conceivable that you bring in witnesses in a homicide case, question them and then put them on the polygraph to corroborate their testimony?
A. True.
Q. If that happened in this instance, then he wouldn't have been a suspect, would he?
A. My understanding he hadn't given any incriminating information up to that point, either as a witness or as a suspect .
Q. Well, if he had been brought in as a witness and put on the polygraph test in order to determine if they could corroborate his statements, he would not have been a suspect under those circumstances --
A. What would they test him on? He hadn't given any information.
MR. DAVIS: Your Honor, could the witness be instructed to answer the question'?
THE COURT: Answer yes or no and then you can explain your answer.
BY THE WITNESS:
A. What you're trying to argue is at the time he was given this test, he was not a suspect. I disagree with that wholeheartedly.
Q. How was it that you determined that he was a suspect at the time the test was given?
A. The nature of the test questions.
Q. You indicated that a confirmation test would be the normal procedure after the confession?
A. Yes.
Q. You also indicated that you would expect an extremely emotional reaction once he spilled his guts, so to speak.
A. An emotional relief, yes.
Q. We've heard -.- if officers have testified that at the time he spilled his guts that he started crying and indicated some emotion, would that emotional release and the emotions of that moment -- would that affect and interfere with a valid polygraph exam?
A. Possibly.
Q. So under those circumstances it wouldn't be a good idea to give the polygraph exam if you wanted a valid result.
A. Yeah, but that's not the emotion they would have seen if it was a valid confession, in a valid confession they would see relief, not anxiety or frustration. When a person confesses and they get it off their chest, they go into a serenity that they haven't experienced in a long time. They're just glad it's over with and there's tranquillity and peacefulness to their demeanor that would not have precluded conducting a second polygraph examination.
Q. So it's your testimony under oath that in nearly every instance of a confession to a serious homicide, that the defendant after confessing becomes tranquil and serene?
A. There is a certain anxiety about the consequences of what they just did, but by the same token, you always see that relief if it is a genuine confession.
Q. You used the words tranquillity and serenity" about the defendant after they give a confession.
A. (NODS HEAD)
Q. That would be one of the indicators to you -- because this defendant didn't exhibit tranquillity and serenity -- that would indicate this statement might not be accurate?
A. True.
REDIRECT EXAMINATION BY MR. STIDHAM:
Q. Is there a mystical, magical moment that every interrogator finally wakes up and realizes during the interrogation process that he can finally say, "Hey, you are a suspect"?
A. Well, what you do is you start off interviewing. Then you make a transition from non accusatory to accusatory interrogation. And you make that transition when you evaluate the suspect's story and you see some things that are disturbing to you. His story doesn't make sense and so you become more accusatory in nature.
Q. Is there any doubt in your mind that based on the questions you've seen in the interrogation that Mr. Misskelley was a suspect when he was brought down to the department?
A. No, none. Primarily, the two questions that were asked on the polygraph about whether or not he participated in devil worshipping. That presupposes that he was in that kind of cult.
Q. Is there any reason for the polygraph examiner to participate, or have pretest knowledge about facts regarding the subject, or should the polygraph examiner be objective and out of the loop, so to speak?
A. No, he's got to get input from the investigators because he's got to know what questions will cover the waterfront and do the job.
Q. If I were to tell you that Mr. Misskelley was shown a photograph of one of the young victims in this case, would that be a factor in your analysis?
A. Depends upon when it was shown to him. Are you talking about right prior to the polygraph test?
Q. No. Subsequent to the polygraph test but prior to his breaking down as you've described it.
A. Well, the breaking down comes on the basis of a cumulative effect on the psyche and he reaches a point of resignation and that is when he confesses.
Q. Is it sometimes difficult to determine whether or not it is relief or I'm glad to get these guys off my back. Is it hard to tell the difference sometimes?
A. Yeah, it is sometimes.
(WITNESS EXCUSED)
MR. STIDHAM: Your Honor, assuming from the court's ruling that there's a possibility that you will not allow him to testify at the jury trial which begins next week --
THE COURT: You need to listen carefully to what I'm saying. He can certainly testify to a great deal about what he testified to here today. The only problem I have is with the results, either affirmative or negative, of a polygraph exam being introduced that is, whether he passed or failed.
All you have got here is two people who have differing opinions on the test that was given, that have differing opinions on the test questions on a device that is not very reliable in the first place and not very scientific.
Mr. STIDHAM: Will I be permitted to make a proffer?
THE COURT: You just did make a proffer. But the thing is, there's a number of things -- I think he could probably qualify on investigations and that part of his testimony about -- certainly his experience.
That might be useful, relevant testimony. I'm more concerned about two experts getting up and saying, "This is what I found," particularly in an area that most courts view as very unscientific in the first place.
So the results I'm not going to allow, but a great deal of his testimony is interesting and perhaps beneficial to you, and I would allow it so you just have to make a decision whether you need him at the trial, which I will allow his expertise with regard to the investigative questioning techniques that were employed.
