Trial Transcripts

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LOS ANGELES, CALIFORNIA; TUESDAY, AUGUST 11, 1987; 9:30 A.M.

(In the presence of the jury:)

THE COURT:  Good morning, ladies and gentlemen.

THE CLERK:  Count Civil 84-6170-WJR, Dr. Jeffrey MacDonald vs. Joe McGinniss. Counsel, please state your appearance.

MR. BOSTWICK:  Gary Bostwick appearing on behalf of the plaintiff, Dr. Jeffrey R. MacDonald.

MR. KORNSTEIN:  Good morning, your Honor. Daniel Kornstein and Mark Platt on behalf of the defendant, Joe McGinniss.

THE COURT:  All right, Mr. Kornstein, you may proceed.

MR. KORNSTEIN:  We call Cleve Backster to the stand.

THE COURT:  Will you step around please and be sworn.

THE CLERK:  Please raise your right hand.

CLEVE BACKSTER - DEFENDANT'S WITNESS SWORN

THE CLERK:  Please be seated; state your full name and spell it for the record, please.

THE WITNESS:  C-l-e-v-e is the first name; B-a-c-k-s-t-e-r is the last name.

THE COURT:  You may proceed.


D I R E C T  E X A M I N A T I O N


BY MR. KORNSTEIN:
Q  What is your occupation?
A  I'm a polygraph consultant and polygraph researcher, and also have a polygraph training school.
Q  Would you explain to us what a polygraph is.
A  The polygraph is the name for the commonly-termed device "lie detector."
Q  And what is that you do in your occupation?
A  Initially I started a polygraph section in the government; in fact, at that time it was the beginning of the Central Intelligence Agency Polygraph Section, back in 1948. And since then I've been very active as a polygraph examiner, also as chairman of a number of polygraph research committees in our profession; and also I do a great deal of quality control work on polygraph examinations conducted by other people; and also testify as an expert witness quite often.
Q  How long have you been involved as a polygraph examiner?
A  This would be 39 years, since 1948.
Q  Have you ever instructed any schools for the United States Government?
A  Yes. I currently, in fact, am giving seminars for the Department of Defense Polygraph School in Alabama. Also at the Naval Investigative Service, the Canadian Police College; and also give two-day seminars at the FBI Academy for the FBI polygraph examiners.
Q  Are you involved in any educational institutions for polygraphs?
A  Well, we conduct our own school which is considered one of the leading schools in the country teaching polygraph technique. I was director of the first school, the Leonard Keeler Polygraph Institute in Chicago, and have been quite active in the training business ever since.
Q  When you testify as an expert witness, do you testify for both the prosecution and the defense?
A  Yes. I have about equal number of appearances on each side, and also in civil as well as criminal cases.
Q  Can you give us an approximation of how many polygraph examinations you have conducted over the years?
A  Well, I stopped counting after about 5,000 examinations. I would say an estimate of maybe 8- to 10,000 examinations personally conducted over the years, but also have been connected with polygraph examinations conducted by others, in probably in excess of 5,000 cases.
Q  Have you ever testified before Congress?
A  Yes, I have.
Q  On how many occasions?
A  On two occasions.
Q  And what subjects did your testimony concern?
A  Well, 1964 was a hearing in Congress by Congressman Moss' Committee on Foreign Affairs and, let's see, Government Information -- let's see if I can be more precise than that -- the Foreign Operations and Government Information Subcommittee in April of 1964. And then that same committee reopened these hearings again in June, 1974 under Congressman Moorhead from California.

MR. KORNSTEIN:  Your Honor, this witness we would offer as both a percipient witness as well as an expert witness, and we offer him as an expert on polygraphy.

THE COURT:  All right.

MR. BOSTWICK:  We have no objection, your Honor, to him being qualified as an expert on polygraphy.

THE COURT:  All right.

BY MR. KORNSTEIN:
Q  Mr. Backster, do you recall when you first heard the name Jeffrey MacDonald?
A  Yes, I do.
Q  When was that?
A  Well, I think these would be some of the newspaper accounts very early in 1970 very soon -- well, in fact, on the occurrence of the crimes, the name certainly did appear in the press.
Q  Did there come a time when either he or someone on his behalf contacted you?
A  Yes.
Q  Who was that?
A  This would have been April, in fact, just prior to April 23rd, 1970, I was contacted by the defense attorney for Jeffrey MacDonald, Bernie Segal, out of Philadelphia.
Q  Where was your office at the time?
A  New York City at the time.
Q  And how were you contacted?
A  It was telephone contact initially, and then a trip was made --
Q  Wait. Slow down. One piece at a time. Do you recall what Mr. Segal said to you?
A  Yes. He retained me as the polygraph examiner for the defense to arrange for the testing of Jeffrey MacDonald in Philadelphia.
Q  Was such a test conducted?
A  Yes, it was.
Q  And did you conduct it?
A  Yes, I did.
Q  And where was it conducted?
A  It was conducted in Philadelphia; as I recall, it was in the law offices of Bernie Segal.
Q  And how did you get from New York to Philadelphia?
A  The -- I took a train from Pennsylvania Station.
Q  You brought your equipment with you?
A  Yes.
Q  And do you recall on what day the examination took place?
A  Yes. My appointment book indicates my trip to Philadelphia on April 23rd, 1970.
Q  Do you recall approximately what time you arrived at Segal's offices?
A  Not offhand, after all these years. It would be sometime in the morning. I remember I did return that same evening.
Q  All right. Then sometime in the morning, would you describe for us what happened after you got to Segal's offices?

MR. BOSTWICK:  Objection, your Honor. Calls for a narrative, could include hearsay, could include inadmissible.

THE COURT:  Sustained.

BY MR. KORNSTEIN:
Q  All right. When you got there, who was present?
A  Bernie Segal was there, and of course, some of his staff members whose names I don't recall, and Jeffrey MacDonald was there.
Q  All right. Before you conducted the examination of MacDonald, did you have any conversation with Segal on that day?
A  Yes.
Q  Do you recall what happened in that conversation?
A  Well, I don't recall the actual conversation, but it wouldn't be different than the general conversation in preparation of any polygraph test for a defense attorney.
Q  Now, after you spoke to Segal, then did you begin to conduct the polygraph examination of MacDonald?
A  Yes.
Q  Who was present in the room when you were conducting that test?
A  Only Jeffrey MacDonald and myself, which is customary.
Q  Would you explain to us what polygraph equipment consists of?
A  Yes.

MR. BOSTWICK:  I'm going to object, your Honor, to the generality of the question. I don't mind a question as to what it consisted of in that case.

MR. KORNSTEIN:  Okay.
Q  In that case, on that day, would you tell us what polygraph equipment you had with you for the examination of MacDonald?
A  Yes. This was a standard Stoelting, S-t-o-e-l-t-i-n-g, polygraph, which is one of the prime manufacturers of the polygraph equipment. And it would record basically three different functions. It would record the respiratory pattern of the individual taking the test from an attachment to the rib cage. Then it would record galvanic skin response from two contacts that were on the finger, that measure the combination of the changes of resistance in the skin and perhaps electrical activity at the skin level; but this particular parameter is very sensitive to emotional change. Also, the cardiovascular system would be recorded through a conventional blood pressure cuff leading to a mechanical tambour that would trace out each pulsation of the heart; it would also show relative changes in blood pressure and the rate and strength of the pulse beat.
Q  Now, from the moment you and Jeffrey MacDonald were alone in that room, would you -- first, how long were you alone in the room?
A  I don't recall precisely how long; I'm sure it would have been in excess of two hours.
Q  All right. Would you tell us, during the time you were alone with him, what happened; what you said to him, what he said to you, and what you did in the conduct of your examination.
A  Well --

MR. BOSTWICK:  I object to the question as being compound. I'm also going to object to any results whatsoever being testified to.

THE COURT:  Sustained.

MR. KORNSTEIN:  Well, wait a minute. Your Honor, as to results --

THE COURT:  Well, let's take the question, one by one.

MR. KORNSTEIN:  Okay, one at a time. All right.
Q  Would you tell us what you said to him and what he said to you during that time alone.
A  Yes. The interview that I would have conducted at that time is a very structured interview that is guided by a note pack that actually goes question by question for any -- a specific incident polygraph test is conducted. And I would have taken basic background information such as the subject's name, place of birth, and date of birth, and street address, general information of that type, leading into a discussion of the information relating to the case.

THE COURT:  Is he hooked up to any equipment while you're asking him these preliminary questions?

THE WITNESS:  No, your Honor, he is not. This would be the final phase; after final review of the questions, word for word, so there are no surprise questions and he would be allowed even to collaborate in the wording of the questions so we would be sure he understood the questions.

BY MR. KORNSTEIN:
Q  Did he in fact review the questions before you asked them?
A  Yes, I reviewed the questions with him; and I'm sure it would be several times because we would work out the fine-tuning of the wording of the questions so that they wouldn't be confusing or ambiguous.
Q  And at what point did you hook him up to the polygraph equipment?
A  This would be the last phase after the question preparation, and the kinds of questions that would be prepared, would not only relate to the case itself, but would involve a series of questions that we call control questions in polygraph testing. And the theory of polygraph testing that I introduced into the field in 1959 involves a theory of the focusing of the psychological set of the individual. And we would put questions in that related -- not overlapping the time of the incident -- that would have some stigmatic value, so that the person would be focusing on those questions and not falsely showing a sensitivity reaction to the relevant questions if they were telling the truth to the relevant questions. So this would bring up an area of questions that would relate by category to the crime in question, but would not overlap the time that the crime did occur.
Q  Now, in the preliminary discussion with MacDonald when you were going over the questions and he was reviewing them with you, did he make any objection to any of the questions?
A  No. I recall it to be a very orderly process. In other words, there was no unusual outbreak or objection, because it's a very quiet procedure and very orderly and calm procedure in working out questions with the subject.
Q  After he's hooked up -- you hooked him up to the polygraph equipment -- can you tell us, as best you can recall, the questions that you asked?
A  Well, the kind of questions -- in trying to refresh my memory -- would be the typical questions used in a crime of violence, such as a homicide; and the questions would relate to --

MR. BOSTWICK:  Your Honor, I'm going to move to strike all answers that they would be. Unless the witness is specifically recalling these questions, I'm going to object to him telling what his pattern or practice is as being testimony.

THE COURT:  Now, you're asking him what happened on that particular day?

MR. KORNSTEIN:  Yes.

THE COURT:  So, are you describing what you generally do, or is this what happened on that day?

THE WITNESS:  This would be what happened on that day, yes, your Honor.

MR. KORNSTEIN:  You may answer.

THE WITNESS:  Yes, in the -- although the precise wording of the question I would not recall after 17 years, it would be a question of whether Jeffrey MacDonald inflicted one or more of the injuries that led to the death of his wife and children.

BY MR. KORNSTEIN:
Q  And do you recall how long the series of questions took to ask and get responses?
A  The series of questions would be probably nine or ten questions, and the questions are paced from first word, one question, to first word of the next, at about 25 to 30 seconds from the first word of one question to the first word of the next question.
Q  Did you ask any questions relating to his sex life?
A  No. In a crime of this type, we would be very careful not to do that, in fact. The only time -- the only justification for sex questions in polygraph testing is if you are testing in a sex case. The purpose of the control questions would be to have a matching category as the category of the crime, and only with a sex crime -- such as child molestation, something of that nature -- would you ask such control questions, because you would not want the relevant questions to be the only kind of questions that were sex-oriented. Now, in a crime of violence we would ask questions that would sound ordinarily quite naive, but they would be such questions -- and this would be the kind I would have used on that occasion: During the first blank years of your life -- not overlapping the time of the crime -- have you ever deliberately done something to hurt someone who loved you? And this is the category that we would stick to in a homicide case of that type.
Q  To be more specific, let me ask you the following: Did you ask MacDonald any questions about his extramarital sexual activities?
A  No.
Q  Did you ask MacDonald any questions about homosexual activities?
A  None whatsoever.
Q  Did you ask MacDonald any questions about unusual sexual practices by MacDonald, such as having sex with animals?
A  Absolutely not.
Q  Did you ask MacDonald any questions about the occurrence of a wild orgy on the night of the occurrence of the murders?
A  No, indeed, I did not.
Q  Now, at some point that morning, you -- did you have a discussion with MacDonald about the results of the examination?
A  Yes. It would either be that morning or early afternoon. I can't be precise on that. And after collecting the last chart, I would have run a minimum of two charts, and very likely three charts, during the examination; and after collecting the information that I needed to do my analysis, I would be quite open, and quite quickly open, concerning the results of the test. Because if there were any legitimate reason for confusion on the questions, well, we needed to reword the questions. They would be reworded and additional charts would be collected.
Q  All right. Now, let me go back a moment. Do you recall what MacDonald's responses were to the questions about whether he had inflicted the wounds that led to the death of his family?
A  Yes, I do.
Q  What were his responses?
A  The answers were no to each of these questions.
Q  All right. Now, would you tell us the conversation that you had with MacDonald about the results of the polygraph that day?
A  Well, the first thing I did was to acquaint him with my opinions, that in my opinion he was being deceptive on the test. And the fact that I --

MR. BOSTWICK:  Objection, your Honor. I'm going to move to strike that evidence. I'm going to move to strike.

THE COURT:  I didn't hear the answer. So, on what grounds are you moving to strike?

MR. BOSTWICK:  I'm moving to strike that it's inadmissible in federal court, any results of a polygraph test.

THE COURT:  All right. Come to the side bar and we'll have a discussion about this.


(Sidebar conference:)

MR. BOSTWICK:  Your Honor, my objection is that number one --

THE COURT:  Excuse me just one minute. Can you find his answer? I didn't hear it. I heard part of it. I better have the answer before me.

(Witness' last answer read.)

THE COURT:  So your motion is to strike his answer?

MR. BOSTWICK:  As to his opinion as to what he thought the results of the polygraph test were.

THE COURT:  All right. And you have some authorities on it?

MR. BOSTWICK:  Brown vs. Darcey, 783 Fed. 2d --

THE COURT:  Wait just a minute. Let me get this out.

MR. BOSTWICK:  783 F. 2d, 1389.

THE COURT:  Is that it?

MR. BOSTWICK:  That's it, your Honor.

MR. KORNSTEIN:  Will you let me respond, your Honor?

THE COURT:  Yes, just a second. Okay.

MR. KORNSTEIN:  The usual rule is, of course, in a criminal case that the polygraph evidence is inadmissible. We're not introducing it to show whether or not he committed the crime; what we're doing is this: In the answers to the interrogatories, one of the --

THE COURT:  Excuse me. Whose answer?

MR. KORNSTEIN:  In MacDonald's answer to our interrogatories about one of the full statements in the book -- one of the statements explicitly put in by MacDonald is that Fatal Vision falsely states or implies that Plaintiff MacDonald failed a legitimate lie detector test administered by Cleve Backster. They put it in the case. Next, on his -- my cross-examination of MacDonald we had extensive conversation -- cross-examination about this issue, the Backster polygraph. MacDonald said it was an incomplete examination; he said he never got any results. He said that there were all sorts of sex questions he asked him, so that this is for credibility and impeachment; and it's rebuttal to MacDonald's own testimony.
MR. BOSTWICK:  The only thing in response to that, your Honor, is that it is so extremely prejudicial in terms of this man giving an opinion when there is a dispute as to how the test was given in the first place. And for him to give an opinion as to what he believed the results were in terms of Dr. MacDonald being deceptive, is so extremely prejudicial that it outweighs the probative value of his testimony.

THE COURT:  But didn't you ask him if he was given the results of the test?

MR. BOSTWICK:  Did I, your Honor?

THE COURT:  I think you did.

MR. BOSTWICK:  I asked him about another test that was taken as well; I asked him how many times he had been hooked up.

THE COURT:  It seems to me --

MR. BOSTWICK:  You may have a better memory on that than I do.

THE COURT:  Well, I don't really. But it seems to me that he was asked by someone, and I thought it was you, whether or not he was ever apprised of the results of the test. And my recollection is that he said no. That's what Mr. Kornstein just stated, and I think -- maybe you have a transcript on this, I don't know. You've had transcripts made of a bunch of the testimony. But if it was inquired into, certainly he can bring it out if it was opened up by you on your examination of MacDonald, with an admonition to the jury that it's only being offered as it bears upon credibility, and not as to whether he's guilty or not guilty of the crime. I think it would have to be admitted under such an admonishment. But it seems to me that somebody inquired into this subject when MacDonald was on the stand.

MR. BOSTWICK:  I believe Mr. Kornstein is correct in that he inquired into it. And I believe that on redirect I also inquired into it. But I don't -- I don't remember him answering the question that you say that I posed to him, but he may very well have.

THE COURT:  I don't know. It's been too long ago. But it seems to me that he's entitled to get into this if that subject has been put in issue in the case, with an admonition.

MR. BOSTWICK:  While we're here, your Honor. There is one other thing. I noticed that Mr. Kassab is still in the audience.

THE COURT:  Yeah, I've seen him.

MR. BOSTWICK:  I also notice that there are a good many reporters here. We tried to do a survey of the local newspapers. In fact, Mr. Kassab's comments did appear in what is known as the Daily Breeze.

THE COURT:  I saw it.

MR. BOSTWICK:  Now, that's one where I was confused with my actor cousin Barry Bostwick.
MR. KORNSTEIN:  We have instructed him appropriately.

THE COURT:  I think he's really got to be collared, because --

MR. KORNSTEIN:  We have.

THE COURT:  -- if not, I think it could really be damaging. We, being residents of the west part of town, get the Daily or the Evening Outlook, and then on Sunday we get the Daily Breeze; and I noticed. Just so that you know what happened last Friday, we -- the law clerks called each juror and worked -- and reminded the juror of the admonition of the Court not to read any newspaper accounts or listen to any radio rendition or accounts of the trial, nor any TV showing. We called each juror individually and reminded them of that Friday -- Friday evening after we heard Kassab allegedly made these statements out in the corridor.
MR. BOSTWICK:  Thank you for the effort, your Honor.

THE COURT:  Very well.


(Within the hearing of the jury:)

THE COURT:  All right. Ladies and gentlemen, the Court is going to permit the line of questioning by Mr. Kornstein at this time with respect to the results of the polygraph test performed by Mr. Backster. It's not being offered to establish whether or not the defendant -- whether or not Dr. MacDonald was guilty or not guilty, or is guilty or not guilty of the crime with which he was charged. It's only being offered as it bears upon credibility. So keep that in mind as we go through any results of this test.

BY MR. KORNSTEIN:
Q  Mr. Backster, would you tell us what the results were of the test?
A  Yes. In evaluating a polygraph test, a quantitative or numerical evaluation system is used; and it's a system that I had introduced to the field back in 1959. And with this system a certain number of negative points needs to be accumulated in order to convert the tracings that you see on the charts into a truth or deception or an inconclusive result. Now, the whole system works on the basis of the flow of reactions of the subject either to the control questions or to the relevant questions. And if the subject is showing the reaction on the relevant questions in going through control questions that are designed to involve a kind of lie of a mild nature with the individual, this is how we accumulate the point total that would lead to a deceptive conclusion. This is the thing that was done.
Q  And what were the results in MacDonald's case?
A  The results were very unambiguous. They were not borderline at all, and in my opinion, he was being deceptive on these charts concerning the questions relating to the crime.
Q  Did you inform MacDonald of the results?
A  Yes, I did.
Q  What did you say to him, and what did he say to you?
A  Well, again, actual conversation would be difficult after 15 years; but I would have --

THE COURT:  No. What did you tell him in substance? And what did he tell you?

THE WITNESS:  In substance I would have told him that I could not be of help to him in his defense because he had failed the polygraph test.

BY MR. KORNSTEIN:
Q  And what was his reaction?
A  Again, exact reaction was not one of rage; it was not one of anger. We had a very -- I would state a very dignified conversation after the end of the polygraph procedure.
Q  All right. After the end of the polygraph procedure and after you told him the results, did you say anything else to him?
A  Yes. I brought up an interesting point, and this does stick to my mind because it's not anything that I would do often during polygraph testing. I -- our conversation led into my interest in Eastern philosophy, and I was mentioning the possibility, if there were substance to Eastern philosophy and if there were substance to the idea of karma, the fact that you have to pay for your crimes in this lifetime, perhaps in another existence, it might be better that he clear this up in this lifetime rather than to wait until later. And it was interesting because I got a very puzzled reaction from him, and he asked me, do you really believe in that? And I said, yes, I think possibly it could be so. And that was the end of the conversation.
Q  Did you have a conversation on that day with Bernie Segal about the results of the examination?
A  The results of the examination, yes.
Q  What did he and you say to each other?
A  Again, I notified him without any confusion that this was not an inconclusive test, because I had learned after the test that another test had been conducted that was inconclusive. In fact, I was pondering how it could have been, because we were covering the same crime; different techniques were used, but, again, this was not in that same category as the first test that was conducted. And in other words, it was just acknowledged that I could not be of further help. And so the best thing -- and the thing that I did for 17 years -- was keep quiet about this determination.
Q  Did you and Mr. Segal discuss whether or not you would write a written report about this examination?
A  Yes. It is a common arrangement when the defense attorney has a polygraph test, and I remember this also applied on that occasion, a polygraph test administered and where the subject in the opinion of the examiner has failed the polygraph test, no written report will be submitted.
Q  Now, let me just understand something. The examination itself, as far as the polygraph went, was complete?
A  Yes, indeed.
Q  There was nothing left to be done?
A  No. It was not discontinued in progress at all.
Q  Was it discontinued by MacDonald because he didn't like the questions?
A  No, indeed. I collected as many charts as I needed to make a determination.
Q  Was there any discussion about an insanity defense?
A  Absolutely none.
Q  And did you receive any communication within the next two or three days from MacDonald or his lawyer about the results?
A  The only communication that would have occurred after that would have been my submitting a bill and being paid. Now, I don't remember the amount, but that would have been completed successfully. There was payment.
Q  There was payment?
A  Absolutely.
Q  Now, after April 1970, do you recall the next time you were contacted by anyone in connection with the MacDonald case?
A  Well, actually, due to the fact that I had not let it be known even in our polygraph circles that I had conducted this examination, there was no contact whatsoever that I recall until the occasion of the book being published, Fatal Vision.
Q  Well, when you say the occasion of the book being published, you mean after it was published or before it was published?
A  Well, now before the book was published -- are you talking about Bernard Segal or anyone in conjunction with this case?
Q  Anyone in connection with the MacDonald case, either McGinniss, Segal, MacDonald, anybody speaking to you after 1970?
A  Yes. In fact, any inquiries that had been made or would have been made about the case, I would have rebuffed; and there was inquiry from the author of this pending book of Fatal Vision, Joe McGinniss.
Q  And how did he contact you?
A  Well, there was a series of letters. There was correspondence, and the first of the McGinniss letters to me would be -- it was dated February 3rd, 1983.
Q  Do you have that letter with you?
A  Yes, I do.
Q  That's a letter from Mr. McGinniss to yourself?
A  Yes, it is.

MR. KORNSTEIN:  Your Honor, we would offer that into evidence as the next exhibit.

MR. BOSTWICK:  May I have a moment, your Honor?

THE COURT:  Yes.

MR. KORNSTEIN:  166 would be the number for identification.

THE COURT:  Is that correct, Marva?

THE CLERK:  166 is correct.

THE COURT:  All right. It will be marked 166 for identification unless there is -- no objection?

MR. BOSTWICK:  We have no objection, your Honor.

THE COURT:  All right. It will be received in evidence.

(Defendant's Exhibit 166 received in evidence.)

BY MR. KORNSTEIN:
Q  In this letter --

THE COURT:  What's the date of the letter again?

MR. KORNSTEIN:  February 3rd, 1983, your Honor.
Q  In this letter McGinniss approaches you to get the results of the polygraph examination?
A  Yes, that's correct.
Q  And do you remember if you responded?
A  Yes, I did.
Q  And how did you respond?
A  I responded in a letter dated February 4th, 1983.
Q  Do you have that letter in front of you?
A  Yes, I do. I have a copy of it.

MR. KORNSTEIN:  Your Honor, we would offer that into evidence as 167.

THE COURT:  Any objection?

MR. BOSTWICK:  No, your Honor.

THE COURT:  It will be received in evidence.

(Defendant's Exhibit 167 received in evidence.)

BY MR. KORNSTEIN:
Q  Okay. In that letter, 167, you say that you can't discuss it with him unless MacDonald signs a release or authorization?
A  Yes. Actually, there was a blanket authorization that had been mentioned before, but that was not satisfactory. I wanted individual authorization directly from Dr. MacDonald to me.
Q  And did you receive a letter from Mr. McGinniss after your February 4th letter?
A  Yes. I received correspondence dated February 11th, 1983.
Q  And do you have that with you?
A  Yes, I do.

MR. KORNSTEIN:  We would offer that as Exhibit 168 in evidence.

THE COURT:  Any objections?

MR. BOSTWICK:  No, your Honor.

THE COURT:  It will be received.

(Defendant's Exhibit 168 received in evidence.)

BY MR. KORNSTEIN:
Q  And in that letter Mr. McGinniss says that he sent the requested authorization to MacDonald for his signature?
A  The request for authorization, yes.
Q  And do you recall the next correspondence that you received from Mr. McGinniss on the subject?
A  I received a letter dated March lst, 1983.
Q  From Mr. McGinniss?
A  Yes.
Q  Do you have that in front of you?
A  Yes, I do.

MR. KORNSTEIN:  We offer that as the next exhibit, which will be 169.

MR. BOSTWICK:  No objection, your Honor.

THE COURT:  It will be received.

(Defendant's Exhibit 169 received in evidence.)

BY MR. KORNSTEIN:
Q  In that letter Mr. McGinniss tells you that MacDonald had refused to sign the authorization?
A  Yes.
Q  From that date in 1983 until approximately a month or so ago, did you discuss -- let's go back. From 1970, April 1970, until about a month ago, did you discuss the results or even the conduct of polygraph examination with anyone?
A  In no open way did I announce or discuss the results, although at the time that the book appeared -- and I had not read the book myself, but my partner in the school, in San Diego, had read it and mentioned -- because there was no index in the book that he came across -- the part that related to me. That was my first knowledge of that being in the book. And then the -- I believe it was NBC -- played the videotape on Fatal Vision, was the next time. Q  Now, this polygraph examination took place 17 years ago?
A  Yes.
Q  All right. Do you remember it clearly?
A  I remember it very clearly because of the nature of the case.
Q  What do you mean by that?
A  Well, I've conducted polygraph tests in a number of homicide cases, certainly, but this one had characteristics that made it very memorable.

MR. KORNSTEIN:  Could the witness be shown Exhibit 402, the book? Particularly Page 618?

THE CLERK:  4-0-2 in front of the witness.

THE WITNESS:  Thank you.

BY MR. KORNSTEIN:
Q  Mr. Backster, running from Page 618 on to Page 619, on the indented portion is a description by MacDonald of what happened with your polygraph examination, what occurred. Would you take a few moments just to read those two pages to yourself?
A  Yes. You're talking of, starting into the chapter or that and the following page, 620?
Q  No. Starting on Page 618 with the first indentation, the one that begins, "Ummm...
A  Yes. I'll do that.

(Reading.)

Q  Have you had a chance to read that, Mr. Backster?
A  Yes.
Q  Insofar as that description relates to you and what you did with the polygraph examination, is it truthful or false?

MR. BOSTWICK:  Objection, your Honor. It's a compound question.

THE COURT:  Sustained.

BY MR. KORNSTEIN:
Q  Would you tell us what, if any, statements in those two pages are false?
A  Well, the first false statement is that it was an expensive test, because it wasn't. It was my standard fee; there was no unusual fee that was charged for the examination.
Q  Do you recall what the fee was?
A  I would estimate that it would probably be $500 for a day out of the office at the time. I'm not sure of that, but it would be in that vicinity. But certainly it was not a bit more than I was charging anyone else at that time for out-of-town work.
Q  Would you tell us what other false statements there are in that description, if there are any?
A  Well, as you get to the -- I believe it's about the third paragraph on the second page, here on the right-hand side, "Well, in fact, just the opposite happened. He basically gave me no prep, except sort of negative type of prep, in which he said that this machine can detect any sort of lying...." This is not the kind of pretest interview that I would conduct. In other words, I might emphasize that the polygraph instrument -- and I'm sure I did at that time -- could be accurate if properly used, especially in a case that had the intensity of this particular case. Then this business of going through the sexual history is just absolutely not accurate. In fact, in the polygraph field in general, in all my lectures I speak of the importance of staying away from sexual issues in a non-sex case because it can create great problems. A person that is extremely disturbed in the area of sexuality could focus on expectancy of those questions and not show accurately on the relevant questions or the control questions, whichever be the case. And the business of "And then he asked had I ever had sex with men." This is a real taboo subject, because that is a very dynamite issue; if the person happened to be a latent homosexual, something of that nature would be so explosive that the person would be falsely attracted to the control question and not show accurately on the relevant question. So it's avoided at all cost. And the orgy was not part of the conversation at all. I did not ask him about an orgy. And the rest of it is just -- I could go point by point -- is not the nature of the conversation that occurred at all.
Q  Would you go through it point by point. Counsel objected to the blanket description; so do it point by point.
A  All right. "And I stopped him, and I said, uh, I understand what we're doing here. I thought this was a polygraph based on my current legal situation -- and he says well, he was just getting me used to the machine and getting a base line reading on truth or falsity." I've never used the term "machine" in my life, in my whole polygraph career it's always an instrument, never a machine. That's a little picky. "So I said okay, let's get back to the point --
Q  Wait a minute. Slow down. The first part of that where he says -- MacDonald says, "I stopped him and said, I don't understand what we're doing here." Did he say that to you?
A  No, he did not.
Q  And then he goes on to say, "I thought this was a polygraph based on my current legal situation." Did he say that?
A  Well, if he did, it certainly -- I would agree with that. His legal situation was whether he committed the crimes.
Q  All right. And in the next sentence, did you say that you were just getting him used to the machine and getting a base line reading on truth and falsity?
A  No. In fact, I do not run that kind of test. There is a kind of test called a Stim Test, that -- pick a number and I'll tell you what the number is -- something of that nature, where that would be the line of argument that they would use; but I do not use stimulation tests. So that wouldn't have been the case.
Q  And then the next paragraph?
A  All right. "Let's get back to the point. . .and he immediately reverted to premarital and extramarital sexual activities, unusual sexual activity. I thought this guy was crazy, to tell you the truth." And, again, he's not telling the truth, in my opinion on that, because that conversation did not occur.
Q  And when he says, "Look, I don't think we can continue." Did he say that?
A  No, absolutely not. He did not discontinue his own examination. I've had that happen very seldom in 39 years, and this was not one of those cases, I distinctly remember.
Q  And in the next sentence he says, "At this point I made some comment about, well, have you considered" -- "he" -- talking about you -- "he made some comment about, well, have you considered the insanity defense."
A  Not at all. I've never even said those words to anyone in my entire career.
Q  And his next sentence where he says, "And I said, Jesus, that's the most outrageous thing I ever heard." Did that happen?
A  I agree that it's outrageous; but he didn't say so at the time.
Q  All right. Then he says, "You haven't even completed your polygraph, and now you're telling me that I should be going for an insanity defense." Did that happen?
A  Absolutely not.
Q  Is the rest of the paragraph accurate?
A  I may have said something about not having it brought to my attention, in regard to "I've never been wrong on a major case." It is true that in a significant case that involves the intensity of this, it has never been brought to my attention that I have erred. That doesn't mean it hasn't happened; it just hasn't been brought to my attention if it did.
Q  All right. Until you testified today, did you ever make public the results of your polygraph examination of Jeffrey MacDonald?
A  No, I have not.
Q  Until you testified here today, have you ever made public how that polygraph examination was conducted?
A  I haven't even discussed that polygraph examination until today in any kind of detail that I'm giving you now.
Q  Did there come a time when anyone on behalf of Jeffrey MacDonald, apart from Joe McGinniss, sought to get the polygraph results from you?
A  There were a series of contacts between March 9th and March 31st, 1983, by Ted Gunderson, in an attempt to get the polygraph -- learn of the polygraph material and apparently to gain either access to it or to obtain it.
Q  Other than that?
A  There also was a sort of a little spate of interest at the time that F. Lee Bailey's Lie Detector Show was showing on TV. And someone from -- in fact, F. Lee Bailey called me himself, and they were discussing the possibility of Dr. MacDonald being tested in conjunction with that, where you're actually tested on TV.

MR. KORNSTEIN:  No further questions.

THE COURT:  Mr. Bostwick, you may cross-examine.


C R O S S - E X A M I N A T I O N

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 Highleyman 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?
A  I'm not sure that I was aware of that at the time, but, again, this would not have a selective effect on controls and not relevants, or relevants and not control questions.
Q  Are you acquainted with Mr. David Raskin?
A  Oh, yes. I trained David Raskin in polygraph technology.
Q  And is he a credible polygrapher?

MR. KORNSTEIN:  Objection. Relevance.

THE COURT:  Well, I think he's testing his knowledge. Overruled. He's testing his knowledge on it in the field. Overruled. You may answer.

THE WITNESS:  Yes. The last part of your question again?

BY MR. BOSTWICK:
Q  Is he a credible polygrapher?
A  Dr Raskin at the University of Utah has collaborated in a number of laboratory studies that are often cited in the field, and the -- our problem, my problem personally, in my opinion at least, with Dr. Raskin is that I can respect his intellectual approach in doing this research at the university; but I have a lot of problems with him through the cases he gets involved in in the field.
Q  Have you talked about the MacDonald case with Professor Raskin?
A  No, I have not.
Q  Were you aware of the fact that Mr. Ras -- Dr. Raskin gave Dr. MacDonald a lie detector test?

MR. KORNSTEIN:  Objection, and move to strike.

THE COURT:  On what grounds?

MR. KORNSTEIN:  Relevance, your Honor.

THE COURT:  I don't know we can determine whether it's relevant at this time. It may be, subject to it being stricken later, I'm going to let him answer. Overruled.

BY MR. BOSTWICK:
Q  Are you aware of the fact --

THE COURT:  Are you aware of that fact, if it is a fact?

THE WITNESS:  I'm aware that there was publicity that stated that Jeffrey MacDonald had --

MR. KORNSTEIN:  Move to strike the witness -- it's just a yes or no answer.

THE WITNESS:  Okay. What was this again now, so I can do yes or no.

MR. BOSTWICK:  Your Honor, I object to the coaching by the defense counsel of this witness.

THE COURT:  All right. No more coaching. Next question. Or what is your answer?

THE WITNESS:  What was the question you wanted a short answer to, again?

MR. BOSTWICK:  No. Defense counsel wants a short answer.

WITNESS:  Okay.

THE COURT:  Well, it calls for yes or no.

MR. KORNSTEIN:  Your Honor, may we have a side bar?

THE COURT:  No, no. It calls for a yes or no, and what's --

THE WITNESS:  Yes, I can do that.

THE COURT:  Repeat your question.

BY MR. BOSTWICK:
Q  What was it that you have read about Dr. Raskin's report?

A  Okay, now

MR. KORNSTEIN:  Objection. Hearsay.

THE COURT:  Sustained.

BY MR. BOSTWICK:
Q  Did you talk to anyone in the professional field about Dr. Raskin's lie detector test of Dr. MacDonald?
A  No.
Q  When did you train Dr. Raskin?
A  I would be guessing now. It would be, I'd say, back in around 1972 or '73, back in New York City before he moved to San Diego.
Q  Have you attached a polygraph machine to plants?
A  Yes. In fact, yes. That's a short answer.
Q  Do plants tell the truth or lie?
A  That hasn't been my area of inquiry.
Q  What have you been inquiring into?
A  Well, in attaching one third of the polygraph, actually the galvanic skin response, to a plant leaf, I found over the years that I have been interested in that, that the plant would seem to be showing electrical responses that related to the emotions of the people in the area. And this is a completely new area in science; and it's been explored quite nicely before lectures -- before about 30 different universities and honor societies of science; and I've traveled all over the world talking about it.
Q  Now, did you talk to Dr. MacDonald about that on the occasion that you examined him?
A  No. I didn't talk to him, but he made an interesting comment about it just before his examination.
Q  What was the interesting comment?
A  The comment was something about the fact that I'm the person that was testing plants. This struck me as being unusual.

THE COURT:  He said that you were the person?

THE WITNESS:  Yes, he mentioned that to me, that he was aware of that.

BY MR. BOSTWICK:
Q  And have you appeared on the Johnny Carson Show on some occasions, talking about attaching polygraph machines to plants?
A  Only one taping of Johnny Carson which was, I believe, reshown because it had Raquel Welch on it, not because I was on it.
Q  And did the plants react to Raquel Welch on the show?
A  No. I know a number of people who did, but I don't know whether the plants did.
Q  Could you look at Page 619 of Exhibit 402, that's the book?
A  Yes.
Q  What he's saying here about -- in the first full paragraph on Page 619, about the fact that you polygraph plants, and being on the Johnny Carson Show; that's true, isn't it? Essentially?
A  Well, where is the part about Johnny Carson?
Q  The first full paragraph on Page 619.
A  619. Okay. Well, he says "He's on the Johnny Carson Show all the time." That is not true.
Q  But it was shown several times; right?
A  Once, and once it was repeated, yes.
Q  And did you talk with Mr. Segal about the fact that you were bigger in your field than John Reid?
A  No. I would not have said that, because I wouldn't necessarily have believed that at the time --
Q  Did you talk -- beg your pardon. Go ahead.
A  John Reid passed away in 1982. So I think I could say that now.
Q  Now, you don't recall any of the preparatory questions that you gave him, the control questions; is that right?
A  Oh, I have the complete itinerary, the same forms that were used and filled out during that interview right here. I can go through, step by step, every item that I asked him.
Q  You haven't changed those questions that you asked people for 17 years?
A  Well, not materially. We've added one more relevant question to the sequence than we had in this note pack. And that's the primary change.
Q  And you know that you haven't -- you haven't asked except for that one change, you haven't asked questions, any control questions that were any different of anybody you were giving a polygraph exam all that time?
A  The control questions are tailored to the incident and to the individual. So they would be very different; so would the relevant questions.
Q  And you don't recall what control questions you asked him; do you?
A  I recall the general category I would have used on that occasion, yes.
Q  I'm not asking what you would have used; I'm asking what you did use.
A  I will go for that. I recall the kind of control question I did use on that occasion.
Q  And do you know -- can you relate for us, word for word, what those control questions were?
A  Not word for word.
Q  Can you relate in substance or effect what those control questions were?
A  Yes.
Q  Can you give those to us?
A  Yes. It would have been depending on the age of Dr. MacDonald at the time of the polygraph test, it would have stated: During the first 21 years of your life, do you remember ever hurting somebody who loved and trusted you? And then between the ages of 18 up until about the time that he took this examination two or three years before; and also, it would have to predate the -- certainly the time of the crime, I would have asked the same question. There were two control questions.
Q  Two control questions?
A  Yes.
Q  And in -- and your testimony is that the answer to those two control questions would show up any problems of extreme emotional distress or respiratory problems that a person had, in order to be able to evaluate the test; is that right?
A  No, it's not right.
Q  How would that -- how do those control questions help?
A  Well, the difficulties that you mentioned, the respiratory difficulties, would show throughout the entire chart. They would not relegate themselves to either the control question or to the relevant question.
Q  So how do the control questions help you determine whether or not a person is suffering, let's say, the effects of a collapsed lung?
A  That isn't the way we would attempt to see if we had a problem. It would be the overall nature of the tracings, not the control questions per se.
Q  But those are the only two control questions you can recall asking?
A  Yes.
Q  How long did that take?
A  The -- a lot of time is spent in the pretest interview, going through the early stages, also listening to what the person has to say; letting them explain the circumstances as they claim it to be. And the actual running of the charts themselves is a very short procedure; but that is the final procedure after a lengthy interaction between the subject, as we went through each of these items in the note pack.
Q  What did you do with the charts when you were finished?
A  I recall, when I came back from Philadelphia, that I put them in a safe place because I did not want them in our general files. And the safe place is the point of confusion, because we've made two moves -- one, all the way across the country from New York City to San Diego, and then also, after getting to San Diego, in 1974, three years later we made a move within the city of San Diego. And this safe place has eluded me now. I've been looking quite intensely for --
Q  You're trying to say the records are gone; aren't you?
A  I'm not sure they're gone.
Q  But you can't find them; right?
A  It's just that I have maybe 75 packing cases of files, and they're somewhere.
Q  Did you make an attempt to find them to bring them here to court?
A  Yes, I did.
Q  And you can't find them; isn't that right?
A  As of this date, I have not been able to find them.
Q  So there is no record of this polygraph examination that you are testifying to today?
A  Only my clear memory as to its results.
Q  I'm asking if there is a record anywhere.
A  In my mind, yes.
Q  And you never made a report; isn't that correct?
A  Absolutely not.
Q  Were you, in fact, paid?
A  Yes.
Q  How do you know?
A  Because if I was not paid, this would be one of about three conditions that would have caused me to be less silent concerning the results of the test. If I had to go through a collection procedure to collect, that was not a problem at all.
Q  But you don't recall being paid.
A  I do recall being paid.
Q  Do you recall whether it was a check?
A  No, I don't.
Q  Was it in cash?
A  It would probably have, been a check, but I don't know.
Q  If you don't recall whether it was check or cash, how can you say you recall that you were paid?
A  Because either one would have been satisfactory to satisfy paying me. I don't care whether it was check, cash, whatever.
Q  But you really don't recall being paid; you're just assuming that you were paid because the fact is that you say that if you hadn't been paid, you would have done something about it; isn't that right?
A  I recall being paid, but don't know whether it's check or cash.
Q  Do you recall who paid you?
A  It would have been the office of Jerry [sic] Segal.
Q  Jerry Segal?
A  Yes. He's the one that retained me.
Q  How do you know it would have been the office of Jerry Segal?
A  Because we very much encourage the attorney to make the payment to protect the confidentiality of the examination result, should it turn out that it cannot be helpful to the person.
Q  How much did Jerry Segal pay you?
A  I don't know. It would be, I would think, in the vicinity of $500, which would be a day rate, I think, around that time. That's only an estimate.
Q  Did you ever talk to Mr. McGinniss on the telephone?
A  No, I don't think that I have talked to him on the phone. I keep a record of every phone call that I receive, with the minute it started and the minute it ended; but that would not -- not until there was a visit -- well, let's say, the first visit that I had, would be preceded by a phone call. And, let's see, June 30th was my first contact. That would have been with Dan Kornstein. And then there was a visit that included Joe McGinniss to San Diego on July 11th, 1987.
Q  How long did the three of you talk?
A  We went to dinner, and they drove back up to Los Angeles the same afternoon. So it was a dinner conversation
Q  Did they explain to you what Professor Segal had testified to in this case about a polygraph examination at his office?
A  Who is that?
Q  Professor Segal.
A  No.
Q  They didn't explain that testimony to you?
A  I don't understand what you're speaking of.
Q  Did either Mr. Kornstein or Mr. McGinniss, when you had dinner in San Diego, explain to you what Professor Segal had testified to as to the polygraph examination taken in 1970?
A  No. I don't recall any discussion of that, nor would it have been pertinent to me.
Q  You haven't been told what Professor Segal testified to, up to today you haven't been told that?
A  I don't recall being told that.
Q  Back in 1983, when Mr. McGinniss requested information from you, why was it that you wanted --
A  I'm sorry. You said Professor Segal? Do you mean Jerry Segal?
Q  Well, Dr. MacDonald's lawyer.
A  Oh. All right. Now, it's starting to ring a bell. Now, would you ask that last question again?
Q  Did, whoever Dr. MacDonald's lawyer was, by the name of Segal, did anyone tell you -- in your conversation with Mr. McGinniss and Mr. Kornstein, or perhaps Mr. Platt -- did anyone tell you what Mr. Segal testified to?
A  Yes, there was a discussion concerning his testimony that tended to support Dr. MacDonald, or was vague at least, at best.
Q  That was your conclusion?
A  Yes. That's my conclusion.
Q  Was it their conclusion as well?
A  I'm not sure about that.
Q  What did they say to you?

MR. KORNSTEIN:  Objection. Hearsay.

THE COURT:  Sustained.

THE WITNESS:  In fact, I asked the question --

THE COURT:  Wait, wait.

THE WITNESS:  Okay. Yes.

BY MR. BOSTWICK:
Q  What kind of an agreement did you make with Mr. Segal not to divulge the results of the polygraph examination?
A  There was no kind of arrangement or deal that needed to be made, because ethically I would not do so. It's my own standard of ethics, not any kind of deal with Mr. Segal.
Q  In your 39-years of asking questions on polygraph examinations, have you ever asked any questions about sexual activity?
A  Yes, in sex cases. These would involve child sex abuse cases; it would involve rape cases; cases of that nature that involved a sexual crime.
Q  But you're absolutely certain you didn't ask any of them on this occasion?
A  Yes, I am absolutely certain.
Q  You have a clear memory of the exact questions that you asked?
A  Word for word, I can't vouch that they're exact, because we would -- perhaps adjust the wording of the question with the help of the subject for the circumstances etc., so I'm telling you that the basic structure of the questions I would remember asking at that time.
Q  Have you read Fatal Vision?
A  No, I have not.
Q  Basically how many times did you say you've discussed this test that was conducted in 1970 with other persons since that time?
A  Until the book and the movie Fatal Vision came out, absolutely no one, other than my partner when I went back for my trip to Philadelphia.
Q  And since the book and movie came out?
A  Private conversations only, and even those have been very limited.
Q  With whom?
A  Ah, people in the office, and perhaps an occasional polygraph examiner who asked me about the coverage in the book, and the allegation that was made as to how I conducted the test.
Q  When you told him that you thought that perhaps he had a karmic debt to pay and he ought to clear it up in this lifetime, are you sure you didn't mention the insanity defense?
A  Absolutely sure.
Q  You can remember that from 17 years back?
A  I certainly can. They involve spiritual values that to me are very ingrained in my memory.
Q  Can you tell us what other polygraph examination that you've taken, let's say, more than ten years ago you can recall as clearly as you recall this exam that you're testifying here to today?
A  I'm sure there would be examinations that, if I had reason to recall, I certainly would be able to recall.
Q  Do you know what -- who they were?
A  No. I wouldn't want to divulge, even if I did remember who they were.
Q  But you don't remember who they were; do you?
A  Not offhand, no.
Q  But you remember this one quite clearly; right?
A  Absolutely clearly.

MR. BOSTWICK:  Thank you.

THE COURT:  That concludes your examination?

MR. BOSTWICK:  Yes, it does, your Honor.

THE COURT:  Do you have any --

MR. KORNSTEIN:  No redirect, your Honor.

THE COURT:  All right. You may step down.