---

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
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.