Brain Fingerprinting - Harrington Testimony Analysis

Brain Fingerprinting Laboratories

Brief Analysis of Testimony by Dr. Lawrence A. Farwell, Dr. William Iacono, and Dr. Emanuel Donchin Regarding Brain Fingerprinting, the Daubert and Frye Standards, and Related Issues Including Relevant Portions of the Transcript of the Harrington vs. State hearing on Nov. 14, 2000

Lawrence A. Farwell, PhD

November 14, 2000

Harrington vs. State of Iowa

Pottawattamie County District Court

"Transcript" refers to the transcript of the November 14, 2000 Harrington vs. State hearing. The portions of the transcript referred to in this analysis are reproduced below. "Report" refers to Exhibit 1, Dr. Farwell's report on the Harrington Brain Fingerprinting test, HarringtonTechReport005Exhibit1.doc, "Supplement" refers to Exhibit 2, the supplement to that report, HarringtonSupplement003figsExhibit2.doc. Both were received as exhibits in the hearing.

A. Dr. Lawrence Farwell

1. The science of Brain Fingerprinting/P300 has been tested.

Dr. Farwell

Dr. Farwell stated that the science has been tested.
Report

p. 7, 11-13

Appendix 3 (Dr. Farwell CV)

Appendix 6 (Journal of Forensic Sciences publication)

Appendix 7 (US Patent)

Supplement

p. 20-29

Transcript

(References to transcript are of the form "page, line - page, line.")

6, 4 - 15, 23

28,8 - 29, 25

45,14 - 49, 3

2. The science of Brain Fingerprinting/P300 has been peer reviewed and published.

Dr. Farwell

Dr. Farwell stated that the science has been peer reviewed and published.

Report

p. 7, 11-13

Appendix 3 (Dr. Farwell CV)

Appendix 6 (Journal of Forensic Sciences publication)

Appendix 7 (US Patent)

Supplement

p. 19-29

Transcript

6, 4 -15, 23

19, 14 - 19, 18

28,8 - 29, 25

45,14 - 49, 3

3. The science of Brain Fingerprinting/P300 is accurate.

Dr. Farwell

Dr. Farwell stated that the science is accurate.

Report

p. 7, 11-13

Appendix 3 (Dr. Farwell CV)

Appendix 6 (Journal of Forensic Sciences publication)

Appendix 7 (US Patent)

Supplement

p. 19-29

Transcript

6, 4 -15, 23

19, 14 - 19, 18

22, 19 -23, 24

28, 8 - 29, 25

45,14 - 49, 3

56, 17 - 57, 2

57, 21 -57, 25

4. The science of Brain Fingerprinting/P300 is generally accepted in the scientific community.

Dr. Farwell

Dr. Farwell stated that the science is generally accepted in the scientific community.

Report

p. 7, 11-13

Appendix 3 (Dr. Farwell CV)

Appendix 6 (Journal of Forensic Sciences publication)

Appendix 7 (US Patent)

Supplement

p. 20-29

Transcript

6, 4 -15, 23

19, 14 - 19, 18

28, 8 - 29, 25

45,14 - 49, 3

Dr. Farwell also stated the following:

The Brain Fingerprinting tests showed that the record of the evening of the crime stored in Harrington's brain did not match the crime scene and did match his alibi.

Report

p. 17 - 20

Supplement

16 - 18

Transcript

35, 12 - 44, 8

( 44, 1 - 44, 8 contains a very brief summary statement regarding the crime.)

45, 14 - 48, 7

49, 9 - 52, 23

The Brain Fingerprinting results obtained provide relevant information bearing on the question of whether Harrington committed the crime.

Report

p. 15 - 17

Supplement

p. 13 - 16

p. 31 - 35

Transcript

40, 4 - 44, 7

Brain Fingerprinting has been tested extensively on information stored in the brain regarding real-life situations, as well as information learned in the course of laboratory simulations, and the results of these tests on information regarding real-life events have been accurate, peer reviewed, published, and accepted in the scientific community.

Report

p. 11 - 12

Supplement

p. 28 - 31

Transcript

7, 13 - 9, 12

10, 3 - 10, 20

11, 25 -14, 8

This science was unavailable at the time of the original trial.

Transcript

31, 19 - 32, 2

Brain Fingerprinting does not test guilt or innocence, but only whether certain information is stored in the brain.

Supplement

p. 31 - 32

Transcript

26, 9 - 26, 23

56, 6 - 13

98, 24 - 99, 3

141, 11 - 14

Brain Fingerprinting is to be used in conjunction with other methods of determining the facts of the case.

Transcript

26, 24 - 27, 11

141, 15 - 22

B. Dr. William Iacono

1. The science of Brain Fingerprinting/P300 has been tested.

Dr. Iacono

Dr. Iacono stated that the science has been tested.

Transcript

152, 7 - 152, 10

156, 11 - 157, 2

157, 23 - 158, 10

160, 2 - 161, 18

165, 21 - 166, 9

168, 13 -168, 25

170, 21 - 174, 25

179, 11 - 179, 21; 180, 5 - 180, 9

183, 14 - 183, 22

2. The science of Brain Fingerprinting/P300 has been peer reviewed and published.

Dr. Iacono

Dr. Iacono stated that the science has been peer reviewed and published.

Transcript

156, 11 - 157, 2

157, 23 - 158, 10

160, 2 - 161, 18

165, 21 - 166, 9

168, 13 -168, 25

170, 21 - 174, 25

179, 11 - 179, 21; 180, 5 - 180, 9

183, 14 - 183, 22

3. The science of Brain Fingerprinting/P300 is accurate.

Dr. Iacono

Dr. Iacono stated that the science is accurate.

Transcript

168, 18 - 170, 20

170, 21 - 174, 25

179, 11 - 179, 21; 180, 5 - 180, 9

184, 19 - 185, 2

4. The science of Brain Fingerprinting/P300 is generally accepted in the scientific community.

Dr. Iacono

Dr. Iacono stated that the science is generally accepted in the scientific community.

Transcript

156, 11 - 157, 2

157, 23 - 158, 10

160, 2 - 161, 18

165, 21 - 166, 9

168, 13 -168, 17 Here is a direct quote on the point of general acceptance from p. 168:

13 Q So in your view, the technique described by Dr. Farwell,

14 which is in your view an application of the guilty knowledge

15 test, does this have a high degree of acceptance in the

16 scientific community?

17 A In my view, it does, yes.

170, 21 - 174, 25

179, 11 - 179, 21; 180, 5 - 180, 9

183, 14 - 183, 22

Dr. Iacono further stated the following:
Dr. Farwell is an expert.

Transcript

188, 7 - 188, 11

This science was unavailable at the time of the original trial.

Transcript

187, 15 - 187, 20

The results of Farwell's Brain Fingerprinting test provide relevant information to the question of whether Harrington committed the crime.

Transcript

185, 24 - 187, 14

C. Dr. Emanuel Donchin

1, 2, and 4. The science of Brain Fingerprinting/P300 has been tested, peer reviewed, and published, and is generally accepted in the scientific community.

Dr. Donchin

Dr. Donchin stated that the science has been tested, peer reviewed and published, and is generally accepted in the scientific community:

a) The Farwell and Donchin 1991 study, including experiment 1 on a laboratory mock crime and experiment 2 on real-life events, constitutes a test of the science. Dr. Donchin stated that it has been peer reviewed and published, and is well accepted in the scientific community:

210, 21 - 211, 8

b) Dr. Donchin stated that Dr. Farwell used essentially the same procedures in the Harrington case as in the Farwell and Donchin study (Dr. Farwell said the same thing):

220, 2 - 220, 14

3. The science of Brain Fingerprinting/P300 is accurate.

Dr. Donchin

Dr. Donchin did not address the issue of accuracy directly in his testimony. He did, however, testify that he had published the Farwell and Donchin paper with Dr. Farwell, and did not dispute Dr. Farwell's testimony regarding the accuracy of the results reported therein.

Dr. Donchin also stated the following:

Dr. Donchin could not agree or disagree with the conclusions reached by Dr. Farwell, because he had not prepared to the extent Dr. Farwell had regarding this particular test, and did not know enough about the specific case.

203, 1 - 203, 4

209, 22 - 25

Dr. Donchin agreed with Dr. Farwell and Dr. Iacono that if there is no P300 in response to the probes, the subject does not recognize them. If there is a P300 in response to the probes, the subject recognizes them.

216, 23 - 217, 1

Dr. Donchin agreed with Dr. Farwell and Dr. Iacono 1) that the science of Brain Fingerprinting can determine whether or not someone recognizes the probes, and 2) that the answer to legal questions of guilt or innocence goes beyond the science.

217, 24 - 218, 3

Dr. Donchin stated that in the Farwell and Donchin study there was skill or art involved in applying the science (in selecting irrelevants in experiment 1 and probes in experiment 2), and that this art component of the scientific process had been accepted by the scientific community. He stated that the art or skill component was "just like fingerprints." Dr. Donchin stated that he could not criticize the probes Dr. Farwell had used in the Harrington case because he did not know enough about the case.

209, 4 - 209, 6

222, 19 - 223, 22

Dr. Donchin stated that Dr. Farwell had a history of skillfully developing the probes, as evidenced in the peer-reviewed and published Farwell and Donchin 1991 study.

225, 24 - 226, 3

1 IN THE DISTRICT COURT OF IOWA IN AND FOR POTTAWATTAMIE COUNTY

2 -------------------------------------------------------------

3 TERRY J. HARRINGTON, :

4 Plaintiff, : No. PCCV073247

5 -vs- :

6 STATE OF IOWA, : TRANSCRIPT OF PROCEEDINGS

7 Defendant. :

8 -------------------------------------------------------------

9 Before Hon. Timothy O'Grady, Judge,

at Council Bluffs, Iowa, held on

10 November 14, 2000, and November 15, 2000.

11 APPEARANCES:

12 Ms. Mary Kennedy and

Mr. Tom Frerichs

13 Attorneys at Law

209 West Fifth Street

14 Waterloo, Iowa

15 Appearing for Plaintiff.

16 Mr. Richard Crowl

Pottawattamie County Attorney

17 227 South Sixth Street

Council Bluffs, Iowa

Appearing for Defendant.

- - -

Page 1

1 TABLE OF CONTENTS

2 WITNESSES: DIRECT CROSS REDIRECT

3 Lawrence A. Farwell 3 54 139

William Iacono 148 189 199

4 Emanuel Donchin 203 210 ---

5 EXHIBITS: OFFERED RECEIVED

6 Ex 1 - Dr. Farwell Report 28 148

Ex 2 - Supplemental Report 35

7 Ex 3 - Dr. Iacono CV 148 148

Ex 4 - FBI Memo 120 ---

8 Ex 5 - Washington Post Article

Ex 6 - Des Moines Register Article

9 Ex 7 - Farwell Transcript (3-10-95)

Ex 8 -

10 Ex 9 - Dr. Donchin CV 203 203

Page 2

1 THE COURT: This case is styled Terry J. Harrington

2 versus the State of Iowa. Today we have a hearing -- the

3 first part of the trial, actually, on the Post Conviction

4 Petition, and also on the State's Motion to Dismiss and

5 Motion in Limine. I think we have an understanding that we

6 will proceed with the scientific evidence over the next day

7 or so.

8 Mr. Crowl, are you ready?

9 MR. CROWL: Yes, Your Honor.

10 THE COURT: Miss Kennedy, Mr. Frerichs, are you

11 ready?

12 MS. KENNEDY: Yes, Your Honor, we are.

13 THE COURT: Your first witness, please.

14 MS. KENNEDY: I call Lawrence Farwell.

15 THE COURT: Dr. Farwell, if you would step forward,

16 please.

17 LAWRENCE A. FARWELL

18 being produced as a witness on behalf of the plaintiff,

19 and having been first duly sworn by the Court, was examined

20 and testified as follows:

21 DIRECT EXAMINATION

22 By Ms. Kennedy:

23 Q Would you state your name, please, and spell it for the

24 record.

25 A Lawrence Ashley Farwell; L-a-w-r-e-n-c-e, A-s-h-l-e-y,

Page 3

1 F-a-r-w-e-l-l.

2 Q And Dr. Farwell, what is your business address?

3 A 107 South Maple Street, Fairfield, Iowa.

4 Q Would you please tell the Court about your educational

5 background, briefly.

6 A I have an undergraduate degree from Harvard University.

7 I have a Master's and a Ph.D. in Biological Psychology from

8 the University of Illinois.

9 Q Your current position?

10 A I'm Director and Chief Scientist of the Human Brain

11 Research Laboratory.

12 Q What other professional employment have you had prior to

13 your current occupation?

14 A Since receiving my Ph.D. in 1992, our actually beginning

15 before I had my Ph.D., I was consultant to the Central

16 Intelligence Agency on brain research and its use in

17 detecting concealed information. I was also, for a couple of

18 years -- It's listed in my C.V., but I was a member of the

19 faculty of Harvard University. I was a research associate in

20 the Department of Psychiatry of the Harvard Medical School.

21 Q Do you consider yourself a scientist?

22 A That's correct.

23 Q And do you specialize in any particular field?

24 A Yes. I specialize in cognitive psychophysiology. That

25 is what my training is in and that's the field that I have

Page 4

1 applied in this case.

2 Q Would you define psychophysiology, please; briefly, if

3 you can?

4 A I can. Psychophysiology is the measurement of

5 physiological responses with the aim of drawing conclusions

6 regarding mental or psychological processes. Cognitive

7 psychophysiology, specifically, deals with information

8 processing in the brain, detecting that through physical

9 measures.

10 Q Okay. And your current -- in your current position, as

11 psychophysiologist, are you focusing on a certain line of

12 work or a certain area of specialization?

13 A Yes. And I have been since I first started working for

14 the CIA in 1991. And that is specifically what has come to

15 be known as brain fingerprinting. There has been some

16 evolution of technology, but over the years, it's been

17 essentially the same practice, and that is detecting

18 concealed information in the human brain in order determine

19 to whether an individual has or doesn't have particular

20 information in his brain, often with forensic applications.

21 Q In this brain fingerprinting area, have you done

22 research, published papers, anything like that?

23 A Yes, I have.

24 Q What papers have you published?

25 A I have published -- Well, first of all, the details are

Page 5

1 in my C.V., but in terms of the major papers that I have

2 published, the ones perhaps most pertinent here, there was a

3 Farwell and Donchin study in 1991 -- I'm also -- that

4 accepted for publication. It will come out in January, a

5 paper in Journal of Forensic Sciences, which I'm publishing

6 with Sharon Smith of the FBI on research that we did there.

7 Q These papers focus specifically on brain fingerprinting?

8 A That's correct. The terminology was a little bit

9 different in the first paper, but the science was the same.

10 Q Who developed or who invented brain fingerprinting as

11 you are working with it today?

12 A I did. Now, that's -- That is really too brief a

13 description to say that I invented it, because it's based on

14 science which has been developed by my peers, and colleagues

15 over a period of decades.

16 Q If you then invented the brain fingerprinting, you are

17 saying that although you invented it, it's based on science,

18 accepted science from other scientists?

19 A Right. Basically, what I measure is event related brain

20 potentials. Those are specific patterns of brain activity

21 that indicates that a certain cognitive activity has taken

22 place. By measuring those event related brain potentials, we

23 can tell what information a person recognizes or doesn't

24 recognize. Now, the specific brain wave component that I

25 began with when I first -- or I should say brain wave pattern

Page 6

1 that I began with when I started this, first developed this

2 invention, was the P300. That was discovered in 1965 by

3 Sutton, et al.

4 Q Let me stop you right there. The P300, then, is what?

5 Explain that, please.

6 A It is an event related brain potential, and what an

7 event related brain potential is, is a specific pattern of

8 brain wave activity that is related to an event. That's why

9 we call it event related. The event that a P300 is related

10 to is the event of taking note of something significant

11 called context updating. This has been published in hundreds

12 of studies in many different labs throughout the world.

13 Q These studies were all centered around the P300;

14 correct?

15 A Correct.

16 Q And you used the P300 in your brain fingerprinting test?

17 A That's correct. Initially I started with the P300, and

18 what happened over time, is that I discovered that there was

19 a little bit more going on after the P300 was over. That

20 happened, by the way, throughout the course of development of

21 cognitive psychophysiology and event related potential.

22 Initially, papers were looking at short potentials that only

23 had to do with sensory processing, and started to look at

24 things that took place a little longer after the stimulus,

25 which had to do with cognitive processing. What I have done

Page 7

1 is extended out beyond the P300 and looked at the pattern

2 that takes place a little farther out in time. However, in

3 order to conduct this brain fingerprinting, and to get the

4 results that we have gotten with Terry Harrington, all I

5 really need is the P300. I can add frosting to that cake, if

6 I want to, and go into more detail, look at the brain waves a

7 little bit farther after the stimulus, but I don't need to do

8 that in order to get the results. So fundamentally, this is

9 based on the P300. The original invention was as well.

10 Q Aside from the papers that you briefly discussed, have

11 you done any research on test subjects or anything like that

12 on your brain fingerprinting?

13 A I have conducted about 170 tests, and of those,

14 approximately 100 were on real life information; not

15 information that was acquired in the laboratory, but actually

16 regarding real life events.

17 Q What was one of those studies, please? Could you

18 describe one of those studies?

19 A Yes. The first study that I did, which actually later

20 became a part of that Farwell and Donchin 1991 paper, was a

21 study of detecting information about minor crimes or socially

22 undesirable acts in the lives of college students.

23 Basically, what we did is we got four college students, we

24 went with their permission, to their roommates, and asked

25 them about some situation that they had done that was either

Page 8

1 a crime or some socially undesirable act. We didn't tell the

2 person we were testing what that situation was that we were

3 looking for. And we developed a set of words or phrases,

4 some of which were relevant to that particular event, and

5 others weren't. I can describe in more detail, but in any

6 case, some of these phrases or words were relevant to that,

7 and others weren't. We presented those on a computer screen

8 mixed in with other irrelevant items, and we could tell by

9 the brain response by this P300 which ones the subjects

10 recognized. So what happened is that we found that we were

11 able to detect that these four undergraduates had

12 participated in these four specific real life events. We

13 also ran four tests on these same subjects on events that

14 they hadn't participated in. So each subject, we tested on

15 two things; one was an event that he or she had participated

16 in, the other was a event that he or she had not participated

17 in. In the cases where they participated in the event, we

18 got a P300 in response to the items that were flashed on the

19 screen that were relevant to the event. Where they hadn't

20 participated, they didn't get a P300, and this is what you

21 predict from the literature, because the P300 indicates that

22 you take note of something.

23 Q Let me stop you there and ask you to slow down a little

24 bit for the court reporter.

25 A All right.

Page 9

1 Q He looks a little nervous to me.

2 A If I inadvertently lapse into technical jargon, please

3 stop me and I will say it in plain English.

4 Q Speaking of plain English, what you just described for

5 the Court, the test that you ran on the college student, was

6 in conjunction with the paper that you talked about earlier,

7 the 1991 paper?

8 A That's correct. Actually, it was originally published

9 in 1986. The original study on four students was published,

10 or eight tests on students, we published in 1986. Another

11 publication on essentially the same content was one of the

12 two experiments in the 1991 paper.

13 Q And the paper was done with whom?

14 A Dr. Emanuel Donchin, my advisor in my Ph.D. program at

15 the University of Illinois.

16 Q When you worked with Dr. Donchin, what was his

17 specialty? What did you work with him about, specifically?

18 A About the P300. When I first had this idea of

19 developing this test, it was on the basis of a lot that I had

20 learned from Dr. Donchin, because he was my advisor.

21 Actually, he wasn't my advisor at that time. Someone else

22 was my advisor, but he was the head of the lab and probably

23 the world's leading expert on 300. When I first came up with

24 this idea, after I had seen it work, I took it to

25 Dr. Donchin. He said, "Great, let's go with this." And then

Page 10

1 we did further research together on it. So in answer in your

2 question, his specialty is the 300.

3 Q To cut to the heart of the study again, I'm asking you

4 to simplify it way down. You asked college students

5 questions about events that you had researched; correct,

6 events in their life?

7 A Well, actually it's not quite correct that I asked them

8 questions. What we did is to present words or pictures on a

9 screen, flash them on a screen, computer screen, and some of

10 these words or pictures were relevant to the events in

11 question, some weren't. It's a little more complicated than

12 that, but that is the basics of it.

13 Q And the words and pictures, whatever, that you flashed

14 on the screen, what did that tell you about those college

15 students?

16 A What it told us, if they got a P300, in response to the

17 items that were specific to that crime or that event, then we

18 knew they recognized those items. That's what a P300 means.

19 It means you recognize something as significant. You take

20 note of it. So that's what that indicated.

21 Q Okay. Other than that particular test, did you have any

22 other tests or do any other research in the field?

23 A Yes. In that same experiment, we did a test on 40

24 subjects. I should say 20 subjects in each of two

25 conditions. One condition was they had participated in an

Page 11

1 event. The other condition was they hadn't participated in

2 an event. This was a laboratory event where it was actually

3 a laboratory mock crime experiment, and Dr. Donchin got

4 funding from the CIA to the tune of about $80,000 to do that

5 particular research. We did it together. I actually ran the

6 subjects -- I wrote the software to acquire the data, and

7 acquired the data. I wrote the software to analyze the data,

8 and I analyzed the data. And the results were that we were

9 able to tell which event the individual had participated in,

10 because when they recognized the details about those events,

11 on the computer screen they got a P300. We defined that

12 mathematically, we measured it, we came up with a

13 determination and a statistical confidence for that

14 determination. It's not just that we look at lines on a

15 graph. We mathematically analyze and the data analysis

16 algorithm says either yes, the information is there, or no,

17 it isn't. Or it can come up saying we just don't have enough

18 information to make a clear determination, and that's an

19 indeterminate response. And that happened in 12 and a half

20 percent of the cases in that Farwell and Donchin 1991 study.

21 We never got a wrong answer before or since, but in that

22 case, we did have 12 and a half percent we couldn't come up

23 with a clear answer one way or the other. So that's simply

24 listed as an indeterminate.

25 Q Any other studies that -- high profile studies or

Page 12

1 anything else that you have done with the P300 or with your

2 brain fingerprinting?

3 A Yes. There is another study that I am publishing in the

4 Journal of Forensic Sciences with Sharon Smith of the FBI.

5 She is an instructor at the FBI Academy in Quantico. This

6 was very similar to the study that we did initially on the

7 students. Again, we had pairs of individuals, and in each

8 pair, one of the individuals had committed some kind of an

9 activity. These weren't crimes. They were just real life

10 activities that they had engaged in, and one of them had not.

11 In each case as before, we had one person who we were testing

12 for knowledge of an event, and then we got that information

13 from somebody else, so we recruit a subject and somebody who

14 knew that subject, and we had permission then to find out

15 about that person's past from the other person. The person

16 who knew the subject would tell us, "Okay, here is a

17 particular event that the person participated in some years

18 ago, and here are the details about that event." We used

19 those details, and what we found was that in every case, when

20 we flashed those particular details mixed in with the

21 irrelevant items on a screen, the individual would recognize

22 them, they would emit a P300 and we could tell with a high

23 statistical confidence which event people participated in,

24 and which ones they hadn't.

25 Q To break it down, what would you consider the scientific

Page 13

1 basis for brain fingerprinting? Is it the P300?

2 A Yes, it is. Now, I have gone beyond that, and again, in

3 addition to the studies I just mentioned, I did three studies

4 under contract for the CIA in which we did the same kind of

5 research. I did another study with the FBI in which we did

6 the same kind of research in the FBI study. We were

7 detecting who was an FBI agent and who wasn't by detecting

8 information in the brain only an FBI agent would recognize.

9 The CIA studies, one was in collaboration with the Navy, and

10 we were detecting who had information about Naval medicine,

11 who had that particular expertise, the application of those

12 experiments. If we can detect an FBI agent or Naval medical

13 expert, we could detect a KGB agent, or what have you. There

14 was another study which was a mock crime which we did for the

15 CIA, my colleagues and I, and then there was another study

16 for the CIA which had, instead of smaller number of subjects,

17 it had 30 subjects, and again, we detected real life events

18 in the lives of people which happened to include a couple of

19 crimes, but specifically what we were looking for is can we

20 tell whether a person has participated in a particular event

21 or not, and what we found again, is that we could in all of

22 those CIA studies, we had 100 percent accurate results. We

23 got the correct answer. We got a definite answer in every

24 case, and the answers in every case were correct, and this is

25 not from my looking at the wave forms. This is from the

Page 14

1 mathematical analysis which says either information present,

2 or information absent, and it gives us a statistical

3 confidence for that individual determination.

4 So yes, the scientific basis is the P300, although I

5 have added to that. But to repeat, when I tested Harrington,

6 I conducted data analysis, including only the P300, the same

7 thing that I had done in the Farwell and Donchin studies,

8 same thing that I had done in previous studies.

9 Q Well, we can get to the Harrington study later. You

10 mentioned -- You used the phrase information present,

11 information absent?

12 A Right.

13 Q Again, is that another way of describing your brain

14 fingerprinting test --

15 A Sure.

16 Q -- for us non scientists?

17 A Sure. That's a way of describing the result of the

18 test.

19 Q Okay. Now, probably you have had lots of people that

20 want to draw an analogy between your brain fingerprinting

21 test and a polygraph. Is what you are doing telling whether

22 or not somebody is lying?

23 A No, it is not; has nothing to do with whether they are

24 lying or not. In fact, you get the exact same results with

25 brain fingerprinting whether the person is lying or telling

Page 15

1 the truth.

2 Q How is that?

3 A We are just detecting whether the information is there

4 in their brain. It's as if -- Say the DNA, they have DNA

5 from a crime scene and on the person of the suspect, or you

6 have fingerprints at the crime scene, you have fingerprints

7 on the fingers of the suspect. If those match, it doesn't

8 matter what he says about it. What we are doing is detecting

9 a match, or no match, between information stored in the brain

10 and information that we get from the crime scene, or relevant

11 to the crime. If it matches, it matches. If it doesn't, it

12 doesn't; has nothing to do with what the person says.

13 Q How much subjectivity is involved in looking at the

14 results, interpreting the results of the brain fingerprinting

15 test?

16 A None at all. You could push the button. I could tell

17 you which button to push. When it says analyze the data, you

18 would push the button, the system would analyze the data and

19 come up with a mathematical determination. Now, you can see

20 the results in the plots, but that's not the basis on which

21 we make the determination. We make it mathematically, and we

22 use standard mathematical techniques for doing that that are

23 well published and accepted in the statistical literature.

24 Q Your system of brain fingerprinting, you described

25 earlier in your testimony how you flash pictures or phrases

Page 16

1 or words?

2 A Correct.

3 Q What are the differences between these words or phrases

4 that you use?

5 A All right. We use three types of stimuli or words or

6 pictures. Usually we use words. One type of stimulus is

7 called a target. These are items that we know the person

8 knows, we are sure the person knows, because we have talked

9 to them about them. We give them a list of them. In many

10 cases, these are details, for example, about a crime that we

11 know he knows, because he has been told them in a trial or

12 because of information that he has some independent access

13 to. We are sure he knows them. We give him a list of them,

14 and we say, "When one of these comes up on the screen, you

15 push a special button." We are very certain he is going to

16 recognize and take note of those. And those are going to

17 emit a P300. You recognize them, he takes note of them. We

18 know we will get a P300 from those, also a MERMER extending

19 out beyond, extending out into a longer time window in

20 looking at the brain wave data from a P300, which will be

21 clearer when I have showed the plots. So we have that

22 stimulus type called targets where we know he is going to

23 recognize them, we know we will get a P300 and a MERMER. A

24 second type of stimuli are irrelevants. They have nothing to

25 do with the crime, they have nothing to do with the person in

Page 17

1 particular. We know he is not going to recognize those as

2 relevant, and we know we are not going to get that P300 or

3 MERMER response. So those are the two types, sort of set a

4 standard, here is what his brain wave looks like when he

5 recognizes the stimulus, here is what it looks like when it's

6 irrelevant to him, or here is what it looks like when he has

7 that information in his brain, here is what it looks like

8 when he doesn't have that response.

9 Then we present, mixed in with these others, a third

10 type of stimulus. We don't tell him which ones these are.

11 These are called probes, and these are stimuli that are

12 relevant to the situation we are investigating, say the

13 crime, but that he would have no way of knowing, unless he

14 did it. So if he shows a P300, and a MERMER in response to

15 these probes, that provides evidence that he actually has

16 that information about the crime stored in his brain, because

17 those are significant to him. If he doesn't have the

18 information stored in his brain, then he won't even know

19 which ones are the probes to him. They will look like

20 irrelevants, and the response will look like the irrelevants

21 response. It will not have a P300 in them. It won't have a

22 MERMER.

23 Q You keep mentioning MERMER. Would you explain briefly

24 what the MERMERS are as compared to the P300?

25 A Yes. The P300 is a positive response. By positive, I

Page 18

1 mean electrically positive component, maximal at the parietal

2 midline area of the brain, the top of the back of the head.

3 And it indicates that a person is taking note of the

4 stimulus. Now, what happened during my research initially in

5 the FBI study where we were detecting FBI agents, I noticed

6 after this positive response, there was a negative deflection

7 that seemed to take place consistently, whenever that

8 positive response happened. It's been found in other labs as

9 well, at least in one of the labs as well at that time, and

10 more since, I believe. And I started to think, well, maybe

11 there is more to this than we thought. So the positive

12 deflection of the P300 followed by a negative deflection --

13 By a negative, I mean negative voltage on the scalp,

14 constitutes the MERMER. I also am convinced that there are

15 phasic changes, short term changes in the frequency of

16 signals that take place that don't show up in the signal

17 averaging that we use to get event related brain potentials,

18 and these are interesting scientific ideas, and I have some

19 data on that, but basically the MERMER is frosting on the

20 cake, of which the P300 is the cake.

21 Q Let me stop you here. Could you do these same tests

22 using just the P300 and not extending it out to the MERMER?

23 A Yes, I could, and I have.

24 Q When did you -- If you can remember, when did you start

25 actually using the MERMER in addition to using the P300 for

Page 19

1 your tests?

2 A I started doing that in 1993 with the FBI study. But

3 the CIA studies specified the P300, so the results are

4 reported to the CIA. All three of those studies were only in

5 terms of the P300. For my own edification, I also analyzed

6 the MERMER. So I analyzed both those studies both ways. In

7 every case, what I got is I got the same result with the P300

8 or with the full MERMER, but in the MERMER, the statistical

9 confidence would increase, because -- in most cases, because

10 I'm just including more data.

11 Q Now, the MERMER is something you developed yourself; is

12 that correct?

13 A That's correct.

14 Q As you mentioned earlier, the P300 has been subject to

15 peer review for years, and basically accepted by the

16 scientists in the field; is that right?

17 A P300 has been accepted for decades by all the scientists

18 in the field, that's correct.

19 Q How about the MERMER?

20 A The MERMER has been published by myself, or is being

21 published by myself and Sharon Smith at the FBI in this

22 article in the Journal of Forensic Sciences in January of

23 this coming year. However, it is a very new thing and

24 doesn't have anything remotely approaching the level of

25 scientific acceptance the P300 has.

Page 20

1 Q I'm going to back up up just a little bit. You talked

2 about the three types of stimulus that you use on your

3 subjects, and you equated it to crime scenes and so forth,

4 but all your studies used the same three types of stimuli;

5 correct?

6 A All my studies use the same three type of stimuli. All

7 of them detected information stored in the brain. Now, this

8 could be information about a real life event, as it was in

9 about 100 of the 170 cases I used; it could be information

10 about a laboratory event, as it was in about 70 of those

11 cases; it could be information about a crime. Information in

12 the brain is information in the brain.

13 Q Now, let me ask you some questions that occurred to me

14 as a lay person, and not a scientist. You tailor the

15 stimulus to what your subject remembers or doesn't remember;

16 correct, or what is stored in the brain, or they tell you

17 that this is what I know, and this is what I don't know;

18 correct?

19 A Well, that is correct. However, before we even get to

20 that point, before I may even ever meet the subject, I

21 ascertain independently what they know and don't know insofar

22 as possible.

23 Q Okay. Let's take, example, if you are working on a