*1 error, Plaintiff Lhost, Defendant error.
Supreme Court Argued No. October 1978. Decided 76-564-CR. 31, 1978. October (Also reported 121.) in 271 N.W.2d *6 plaintiff For argued by in error the cause was Garrett N. Kavanagh, public defender, assistant state with whom Eisenberg, on brief Howard B. state public defender.
For argued the defendant by in error the cause was Becker, David J. attorney general, assistant with whom on the brief attorney was Bronson Follette, C. La general.
COFFEY, J. presented There ap- are two issues on peal:
1. Was the evidence sufficient to sustain a verdict guilty to the attempted crime of rape ?
2, Did refusing the trial court err in to admit the re- of polygraph sults test favorable to the defendant be- prosecution cause the stipulate? refused to alleged The defense has the evidence is not suf- ficient statutory to meet the elements attempted rape. Attempted rape by 944.01, is defined sec. Stats.1 repealed by Sec. 944.01 was 184, Laws of ch. sec. 7 rape effective March 1976 and by the crime of is now treated 940.225, Stats., see. as a sexual assault. 989.82(2), The statutes read sec. 1973. Stats. follows: Rape. (1) Any “944.01 sexual inter- male who has wife, force
course with a and he is not his female knows against than will, imprisoned not more her years. against “(2) ‘by phrase force and this section the her over- will’ means either that her resistance is utmost prevented by physical that her will come or violence or physical to resist imminent overcome threats of likely great bodily violence harm.” to cause Attempt. (2) attempt com- “Sec. 939.32 ... An per- requires mit form a crime that the an intent actor have which, accomplished, if acts and attain a result *7 would constitute such and that he does acts toward crime the commission of the crime which demonstrate un- equivocally, all he circumstances, under formed except intent for the and would commit the crime person intervention factor.” another or some other extraneous Oakley State, 298, 657 22 125 N.W.2d Wis.2d (1964), analyzed statutory require- this court the two together of intent ments and overt which acts must occur attempted rape: in order to have an “(1) The male must have the intent to act so by overcoming pre- have venting with or intercourse the female by physical violence, her utmost resistance or overcoming by her towill resist the use of threats of physical bodily likely great imminent harm; violence to cause (2) the male act must toward the commission rape by unequivocally, overt acts which demonstrate circumstances, under all the that he formed the intent rape rape except and would have committed the person the intervention of another extra- some other Supra factor.” neous 306. sufficiency upon appel- of the evidence rule for the action of a criminal is also well stated: late review “ guilt prove beyond must defendant’s the state ‘While doubt, appeal on this court’s review is a reasonable
628
determining
limited to
adduced,
whether
the evidence
rationally
by
believed and
ficient
jury
considered
was suf
prove
guilt
beyond
defendant’s
a reasonable
required only
doubt. Reversal is
when
con
the evidence
favorably
sidered most
to the state and the conviction
probative
so insufficient
value and
that it
force
can
be said as
acting
a matter of law that no trier of facts
reasonably
degree
could be convinced to that
of certitude
”
beyond
which the law defines as
a reasonable doubt.’
State ex rel.
113,
Gagnon,
108,
Kanieski v.
54 Wis.2d
(1972) ;
A review of the evidence mandates a conclusion in
*8
agreement
position
with the state’s
the evidence is
prove
sufficient
to
the
attempted
elements of
rape.
It has
attempted
been stated in the consideration of an
rape case that intent will be inferred from the
acts
overt
State,
LeBarron
294, 298,
accused.
32 Wis.2d
(1966).
1. The defendant removed the victim’s slacks after request; she refused to do so his she stated “never” request. response in to this dropped pants to his knees. his
2. That he had legs in finding clenched despite the victim’s 3. That trying spread her persisted in to position, a crossed he legs. off push defendant tried to
4. victim When pressed forcibly down and body, her hands her he held on with his attack. hold she free from his
5. the victim broke That when neck, at beating grabbed which his his and started back parts private fingers in the victim’s time he stuck two get going legs spread as he was and told her to her her “no matter what.” after the house slapped and left he the victim
6. That nearby crib baby in the and the victim screamed began cry. factually Adams similar to
This case is following (1973) where N.W.2d Wis.2d statutory ele- found sufficient to establish were facts attempted rape: ments he her on “(1) complainant as threw His statement room, you really I want be- floor, T don’t want forcibly before;’ (2) his had a cause I never white woman undergarments her complainant’s pulling and shorts finger complainant’s knees; vagina; (3) into his insertion of a com- in the event (4) his threat to the child struggle cry after out; (5) plainant his renewed should throwing couch; (6) buckle the child onto a his belt Supra being 519. undone.” Adams, use force to overcome the assailant’s intent to from these same overt resistance found victim’s Supra at 519-22.
acts. inference reasonable ease create facts intercourse sexual to have intended defendant accomplish force that he would use victim with the support Oakley v. State offers defense the same. court found that supreme position wherein of its *9 630 attempted
elements of rape had been an not met when by assailant desisted when told the victim she menstruating. Oakley distinguishable. This case and are Oakley In pursue the defendant not did the removal pushed or woman’s blouse skirt when she his hand away; any required retaliatory nor to was she offer more merely pushing away. resistance than his hand pants. instant case the defendant asked her to remove her replied The victim “never” and so the defendant removed them; part lack resistance on is not the victim’s persuasive totality under the of the circumstances test Further, as manifested the defendant’s overt acts. in Adams, this case in physical the defendant used restraining try force in her resistance as he continued to spread year legs. 14 old child’s crossed The de- alleged get going fendant’s that statement he was willingness victim “no matter what” indicates his to use accomplish force sexual with the intercourse child. As 475, 479, was noted in v. Skulhus 159 Wis. 150 (1915), 503 N.W. fact the defendant terminated outcry his attack at the victim’s first not sufficient evidence create a reasonable as to doubt the attacker’s intent. question resistance,”
toAs
court
of “utmost
this
term, subjectively
held
has
is a
relative
tested.
Herfel,
513, 518,
State
49
Wis.2d
N.W.2d
(1971) ;
333, 336,
v. State,
Madison
61 Wis. 2d
N.W.
(1973).
age, experience
physical
2d 150
attri
determining
butes
victim must be considered
legal question
Further,
of “utmost resistance.”
offering
required
“utmost
not
resistance”
victim is
126, 130,
Schmear,
do the
useless. State
2dWis.
(1965). Also,
In a factual review to find a reasonable of this case supports inference which was that “utmost resistance” following offered, the facts can be considered: year requested 1. When the 14 to remove her slacks, old replied child victim “never.” testimony
2. The of victim that she was “scared thought death” and the defendant to “have was there just something.” some kicks and kill us or 3. That sleeping “us” refers to the whom child for babysitting. the victim was age,
4. experience physical The and attributes height weighed victim: she 5' 4" in pounds; height the attacker was described as 5' 9" in weight. 170-175
5. That when she broke free from hold started his she pounding grabbed back his with her fists and neck. his fingers That
6. she screamed when his entered her genital area. yielding through
A
creates
victim’s
in an attack
“fear”
rape
no
to the assailant’s intent
reasonable doubt as
in fear to
victim.
choice when made
submit
only
philosophical
law does
to resist
is a
choice
and the
martyr
require
not
to test
a woman to become a
sincerity
rape
of the imminent
of
manifested
threat
supra
Herfel,
at 518-
an
State v.
attacker’s overt acts.
recognized
traditionally
19.
a difference
The law has
between consent and
It is reasonable
be-
submission.
going
get you
threat “I am
lieve
the defendant’s
what,”
force,
no matter
the use of
created
combined with
minimizing
fear,
power
her
the victim
utmost
thus
In this
there were
ele-
and will to resist.
case
obvious
decided in
ments
resistance.
victim
the face
it
her attacker’s
was safer
submit to his ad-
actions
Vances,
point
but at the
when he
realiz
came closest to
ing
objective,
sexual
his
The fact that he
she resisted.
negate
ceased in the face of the
does
resistance
not
inference that he intended to use
to have
force
sexual
relations with the victim.
in and
itself
Resistance
can
an
preventing
accomplished
extraneous factor
crime,2
passive
crying baby
or a
factor such as a
can
party.
constitute
intervention
a third
Adams v.
supra
at 523.
appeal requests
The defendant’s second issue on
pronouncement
*11
court to reconsider its
State
Stanis
lawski,
730,
(1974).3
Wis.2d
court’s it at 126: Gaddis was stated procedure request, “The here followed —defendant’s laboratory approval ex- the court’s and the crime state conducting test, 165.79, aminer’s under sec. Stats.— procedure could be to that authorized in the Stanislawski where an additional alternative viewed as Case, particularly poly- the defendant submit to another offered to *12 by any graph examination administered examiner the designate. justices prosecutor However, all cared to agree having that, proper determined in the Stanislawski procedure polygraph in for the admission of evidence ought state, not alterna- this we consider additional or relaxing Some procedures forty-year-old soon after tive so the experience total ban on such evidence. the with judge trial should “(4) is admitted That if such evidence testimony tend to jury not does the examiner’s instruct any a defend- prove disprove crime with which element charged only at the whether at most tends indicate but ant Further, telling the truth. defendant was of the examination time them to de- jury it is for be instructed members should testimony weight and effect such what termine corroborative given.” be should 634 by-stipulation-only procedure should be had addi- before
tions to it should be considered.”
stipulation”
again
The
appeared
“no
ex
issue
in State
Schmidt,
668,
rel. Harris v.
890
69
230 N.W.2d
Wis.2d
(1974).
hearing
parole
In Harris a
examiner
revocation
permitted polygraph
received in evidence
results
by
stipulation.
without a
used
This evidence was
assessing
credibility.
examiner
parolee’s
in
The
prejudicial
court found that
it
error to admit
was
Supra
test
stipulation.
results without
at 681. The court
stipulation
also considered the absence of a
as control-
ling4
affirming
of a
offer
exclusion
defendant’s
State,
to take a
Turner v.
examination.
76
1, 24,
(1977).
Wis.2d
250
706
N.W.2d
recently
As
as last
term the issue was raised
State,
(1978),
Zelenka v.
Wis.2d
N.W.2d
sought
where the defense
the admission of a
examination
taken of
defendant’s father.
It was
alleged
support
that the father could
defense claims that
during
police
interrogation
improperly
had acted
following
request
Zelenka’s
re-
counsel.
court
holding
iterated
State, supra,
its
in Gaddis v.
that some
experience
only
stipulation
needed
with the
rule
considering
change
before
a
in Stanislawski and stated:
persuaded
change
are not
“We
the rule of Stanis-
upon
experience
arguments
lawski
and the
made to
supra
State,
this date.”
Zelenka
at 613.
cases discussed above indicate a clear choice
position
court not to withdraw from its
in condi-
tioning polygraph admissiblity upon
prior stipulation.
The court
Hemauer
also discussed
64 Wis.2d
(1974),
polygraph may
N.W.2d 342
which held the offer to take a
probative
outweighed
well. be
but can be excluded if its value is
danger
prejudice.
of unfair
*13
only
stipulation
The defense maintains that
rule
Stanislawski
permits
a condition to he created where-
rights
process
pro-
due
compulsory
defendant’s
to
only
stipulation
permits
cess are violated. The
rule
a
prosecutor
agreement
admissibility
to withhold his
to the
exculpa-
results
to
which
tend
reveal
tory
Washington
argues
evidence. The defense
Texas,
Mississippi,
(1967)
and Chambers v.
Washington Texas, supra held that Sixth guarantee process compulsory ap- Amendment’s plicable through to the states the Fourteenth Amend- Washington ment.5 a further held unconstitutional procedure charged prohibiting parties Texas rule testifying with the same an- crime from for one and parties other’s defense. The rationale that such was prone testifying are perjure no more themselves in they might for the defense than when choose to make bargain testify prosecutor with the in the state’s case. Mississippi, Chambers v. supra, the court disclaimed
setting any they new principles constitutional held when a Mississippi party may rule that a impeach not his contrary own right witness was to a defendant’s to com- pulsory process. Factually, sought petitioner the tes- timony party of a who had stated on three he occasions petitioner responsible not the for the murder §7 Constitution, I, providing: art. is similar in The Wisconsin right enjoy prosecutions shall “In all criminal the accused counsel; the nature and to be heard himself and to demand him; against face cause meet the witnesses of the accusation process compel face; compulsory the attendance of to have by indictment, behalf; prosecutions in his and in witnesses speedy impartial jury information, public to a trial an committed; county wherein offense shall have been or district previously county which or district shall have been ascertained by law.”
636 charged. petitioner party with had which the was This given effect; also a that this confession to confession repudiated. party part was later not called as prosecution’s Mississippi of the case “voucher” so the precluded petitioner rule from in effect cross-ex- amining party previous inculpatory as to his declara- by prohibited tions. The defendant was also the Missis- hearsay sippi questioning persons rule from three party whom the third had told of his involvement finding ap- the murder. the “voucher” rule and plication hearsay unconstitutional, rule the court stated: rights “Few are than that more fundamental of an present E.g., accused to in his own defense. witnesses Texas, (1972) ; Washington Webb v. v. 95 U.S. Texas, Oliver, (1967); U.S. In re 333 U.S. accused, (1948). 257 as is right, In the exercise of this required comply of the must with established procedure designed rules of and evidence to assure both reliability guilt
fairness and
innocence.”
ascertainment of
supra
Mississippi,
Chambers v.
at 302.
The defendant cites
support
two cases which
their
position
requirement
stipulation
prior
admissibility
evidence is constitution
ally
upon
violative based
Washington
Texas, supra,
v.
and Chambers Mississippi, supra.
The first
State
Sims,
Misc.
(Ciyahoga Cty.
Despite the exhaustive work that went into the trial
writing
court’s
Sims, supra
of State v.
(40 pages in
length)
question
precedential
we
its
value to this court.
Sims was
April 25,
filed on
recently
1977 and as
*15
February 22,
Supreme
1978 the Ohio
Court reaffirmed
“stipulation only”
its
Souel,
rule. State v.
53 Ohio St.2d
123,
Dorsey, 323, 87 N.M. 532 P.2d affd. 88 N.M. 539 P.2d (1975). Supreme The New Mexico Court analysis without following detailed findings made the regarding “stipulation only” the existing previously rule in New Mexico: “ (1) nature; Mechanistic in
“(2) Inconsistent with concept the process; of due “(3) Repugnant purpose the announced and con- struction of the New Mexico p. Rules of Evidence.” 205. Dorsey inconsistency decision stressed the prior stipulation requirement pertinent to the rules of evidence.6 Ostensibly, Dorsey the case turned on the counterparts The Wisconsin are: Purpose “901.02 and construction. shall be con- These sections administration, unjusti- strued to secure fairness in elimination of expense delay, promotion growth develop- fiable and and of and ment of the law of evidence to the end that the truth be proceedings justly ascertained and determined.” Testimony by experts. scientific, technical, other If or “907.02 specialized knowledge trier fact to understand assist the of will qualified issue, in a witness a fact the evidence or to determine training, by knowledge, skill, expert experience, or educa- as an opinion may testify tion, form of an or otherwise.” thereto in the generally irrelevant admissible: evidence “904.02. Relevant except admissible, evidence inadmissible. All relevant evidence is given that, appro-
New Mexico perception court’s the priate by qualified polygrapher foundation that strict administering scientific methods had been followed test, is an and device accurate reliable warranting admissibility necessity only by limited testimony.7 for foundation
Washington
Missis-
Texas,
supra,
Chambers
and
in-
sippi,
proposition that
supra,
not stand
do
herently
questionable
evidence or evidence
unreliable
validity
part of
admitted into evidence as
must be
fact,
right
compulsory
process.
defendant’s
analysis
contrary,
the court
an
in each case
undertook
reliability
testimony and
to establish the
of the excluded
weigh
reliability
necessity
evi-
then
for such
against
dence
interest
its exclusion. Wash-
state’s
admissibility
ington
do
Chambers
not mandate
stipulation if
finds
without
this court
results
by
provided
otherwise
Constitutions
the United States
by
Wisconsin,
rules,
statute,
other
and the State
these
adopted by
Supreme
not rele-
rules
Evidence which is
Court.
vant is not admissible.”
fully
state
followed
date no
has
should
noted that
It
*16
Dorsey
Wyoming;
565 P.
Cullin v.
v.
State
rationale:
curiously
to
Dorsey
used
(Wyo. 1977)
was
rationale
2d 445
previous
only”
abandoning Wyoming’s
support
“stipulation
rule
a
454,
Molina,
Arizona;
Ariz.
policy.
117
State v.
total exclusion
opinion
concurring
in a
of
court
members
P.2d 528. Two
573
stipulation
condition
suggested it
time to re-examine
Dorsey.
explicitly re
admissiblity
light
Arizona had
Note:
of
Dorsey
Treadway,
1067
P.2d
jected
v.
639
polygraph
sufficiently
is not
in the
reliable
absence
stipulation.
of a
admissibility
The issue of the
an
exculpatory polygraph
stipulation
examination without
came
Supreme
before the U.S.
Court last term. Certio-
rari was
States,
denied in Masri v. United
434
907
U.S.
(1977), previously reported
(5th
in 547 F.2d
Cir.
932
1977). This denial
upheld
of certiorari
the Fifth Cir-
complete
cuit’s
polygraph
bar as to
results.8
Empirical data
supplied
has not been
establish
Stanislawski,
reliability of polygraph exams since State v.
pra;
Gaddis v.
supra, and this court’s most
su
pronouncement
recent
State, supra.
in Zelenka v.
To
only
this date
a
require
limited number of
not
courts do
stipulation prior
a
admissibility
to the
res
majority
ults.9
require
of courts
stipulation
still
a
8
Supreme
From
grant
the U.S.
Court’s consistent
refusal
involving polygraph
certiorari
challenges,
ap
to cases
the Court
pears
taking
position
permits
to be
each circuit
deter
requirements
mine the
the admission or exclusion of
test results.
denying admissibility;
Cases
Second Circuit: United States v.
Bando,
838, 841,
244
den.,
F.2d
(1957);
cert.
640 admissibility.10 Further, prior at least one has court stipulation criminal matters withdrawn its rule all complete policy reverted to a exclusion under has any (Okla. State, Fulton v. 541 circucstances. P.2d 871 1975).11 App. Crim. Ct. sharp are in as studies of authoritative
The results
they
today
when Stanislawski
dispute
were
(civil case).
(1972)
also
316,
See
United
386
Misc.2d
339 N.Y.S.2d
1972), affd,
(S.D.
Supp.
DeBetham,
Cal.
1377
States v.
348 F.
denied,
907,
(9
Ct.
1972),
412
93 S.
cert.
U.S.
F.2d 1367
Cir.
470
(1973).
2299,
evidence
which have held
Ed.2d
Courts
36 L.
972
carefully-circumscribed
stringent,
con
prescribed
have
admissible
Mayes,
F.2d
512
637
States v.
and limitations. United
ditions
(1975);
(CA 1975),
denied,
States
1008
United
422 U.S.
6
cert.
denied,
(CA
1974), cert.
419 U.S.
Infelice,
641 written in In at 1974.12 Stanislawski 738 footnote divergent reviewed the results in studies: accuracy: accurate, per percent 5 “Estimates of 94 inconclusive, percent cent Inbau, F. 1 Reid & known errors —J. (“Lie Deception: Polygraph De Truth and The tector”) 235; Reliability Technique, 9, 234, supra, at 87.75 footnote percent Reid, The accurate —F. Horvath & J. Polygraph Decep Diagnosis Truth and Examiner of of tion, Science Criminology 62 Law, Journal and Police of Criminal (1971), 276, 278, 279; accurate, percent 3 96 percent inconclusive, percent 1 maximum known error— Pfaff, Polygraph: Aid, R. The An Invaluable Judicial citing (1964), 1130, 1132, 50 A.B.A.J. Arther and Ca puto, Interrogation 214; Investigators (1959) 2 to 5 for percent Wicker, Polygraphic The Truth Test error —W. and Evidence, supra (1953) 9, 711, the Law footnote 713; percent Levitt, 2 to 3 known error —E. Scientific “Lie-Detector,” Evaluation 40 L. Iowa Rev. (1955), 440, 450; accurate, percent 75 to 80 15 to 20 percent inconclusive, Note, Poly percent 5 The error — graph Probation, (1972), 76; and 9 Idaho L. Rev. 75, percent accurate, percent inconclusive, 80 error —E. percent 17 3 Cureton, A Validity Consensus as Polygraph Procedures, (1953), 728, 22 Tenn. L. Rev. high But see: percent Highley- 729. As as 25 error —S. man, Deceptive Certainty Detector,” the “Lie supra (1958-1959), 9, 62; 47, percent footnote 70 ac Burkey, Against curate —L. The Case the Polygraph, 51 (1965), 855,856.” A.B.A.J. surveys Authorities have noted that such statistical recognize do not an inherent in the data bias collection process; being way there is no conceivable in which verify accuracy responsible party the test expert appeal, Joseph Wilimovsky, this ease on stated proof accuracy in the offer of there ais rate 96% margin remaining inaccuracy was not a case of but of incon 4% clusive results. Contrary: “Comparison Analysis Poly- Kubis of Voice graph Polygraph as Lie (1974) Detector Procedures” 8 laboratory accuracy where under conditions the rate was 76%. Abbell, “Poly- subject unless a confession results.
test Against Admissibility graph The Case Evidence: Trials,” L. Rev. 35. Federal 15 Am. Crim. Criminal cogent Dr. studies done of the most One Laboratory article, “Implications of Martin Orne in his Deception,” Polygraph Detection of Research accuracy addressing problems (1973). *19 required for stipulation a is of lie detector results when stipulation admissibility prior to the is taken and test following counsel, makes the at the he behest of defense points: carried polygraph examination is the usual “Whereas arm’s is at polygrapher out the in a situation where agency, a length potential employ the of a law enforcement —in (or actual) employer similar rela- or some inevitably
tionship, a have where his decision would suspect’s in which direct on a future —the context effect inevitably friendly polygrapher the his test carries out is suspect that his different. In realizes the latter case the attorney help in employed polygraph has the examiner per- preparation the For the innocent of his defense. relatively little; however, for the son matter this considerably. guilty individual it alters the situation friendly guilty poly- individual when a tested grapher is that the of the test he knows results if found only deceptive of against kind will not used him. The be findings attorney utilize are ones which his would being poly- corroborated where his innocence is graph. being consequence, As a fears about client’s greatly able to detected are reduced. As we have been acknowledged laboratory, by all show in the and is suspect’s polygraph experts, a detection is the of fear major response augmented physiological assuring his factor lying. precisely aspect It is the the while dramatically altered situation which is most when attorney. employed by is defendant’s perhaps respect client even accorded deference tend by the examiner will to convince polygrapher really attempting help is client that his cause and thereby less make him and less de- afraid tectible, guilty.” even he pp. (Emphasis 194-195. if supplied.) In suggests conclusion polygraphers Dr. Orne testing should refrain from defendants when there is an deceptive. meaningful consequences absence of if he is found Sup at 195.14 ra determining unreliability reliability an
unstipulated polygraph request taken at the of defense counsel a review of facts in the instant will case inculpating instructive. The evidence the defendant is: 1. The victim was able to record a matched license plate reasonably number and make a accurate identifi- cation of defendant’s car.
2. pick The victim was able to the defendant out of group a 5 photographs night incident, on the an made in-court identification. positive
3. The victim identifica- able to make key tion of chain found in and barrette defendant’s night car as the ones in her slacks incident. key belonged The fact that the to the victim was verified *20 Urquidez, Supp. 1363, See United States v. 356 F. 1366-67 (D.C.C.D. 1973) affecting polygraph accuracy, Cal. for factors i.e., subject; detected; being the of the motivation of the fear subject’s integrity physical condition; competence, and mental the operator; ques wording and of attitude the the of the relevant tions; appropriateness question; reading the of control the graphs. Adams, length People This article was discussed in App.3d 109, Rptr. 518, (1975), Cal. wherein it Cal. 520-21 polygraph was held where been that a unilateral exam has ad any reliability tests, stipu ministered the lation, future even of if under subsequent be would so diminished that results the the of Supra tests should not be considered as evidence. 524. This at developed stop practice shopping.” rule was to the of “examiner subject polygraph greater The more times a takes a test likeli hood he will is that become immune or to the ma habituated supra processes. 47; Abbell, chine’s United States v. Ur quidez, supra at 1366.
by police opening the door to her house with key. testimony by expert samples
4. There that hair an matched of a to which those class of hair characteristics belongs. the defendant
Despite proof, pass defendant was able polygraph disparity defense initiated exam. between upon perception traditional forms of and evidence based knowledge arguable polygraph evidence, and the form an damage arguments expert opinion, to the does unstipulated polygraph who those contend the exam Further, reject bears accurate and reliable results. we argument examination results are equally reliable as forensic such as evi tests ballistic dence, fingerprint blood tests and identification.15 objective subjective factors which find several
We testing.16 distinguish from forensic exam physio- objective (1) there is no one are: factors decep- logical unique indicative of reaction that may tion; deception factors (2) indicated other question as a “neurotic interconnection” such asked; (3) or factors elimi- socio-economic cultural any subject apprehensions nate from the moral about being subjects deceptive; ability produce (4) imagery the ma- muscle tension and mental to “beat chine”; subjects (5) proper polygraph ex- are not drugs mentally unstable, depressant amination if on overly lengthy interroga- subjected tired if become prior All of the tion to exam. above factors tend subject’s responses; (6) minimize autonomic surroundings responses physical will affect noises, examining i.e., people subject, number of in the *21 15 supra. Ridling, supra; States v. United Sims analysis gives supra, the follow Abbell, a detailed of 36-41 subjective ing objective factors. and area, length interview; (7) pre-test of test and fram- ing questions specificity complexity; of as to and complete knowledge ques- required so examiner is adequately tions can be framed. If a examiner defense investigation police without the benefit of he is not asking questions knowledge. subjective full with (1) requires procedure factors are: an recommended during subject’s examiner to observe behavior exam, readings therefore chart biased an ex- perception behavior; subject’s (2) aminer’s toas “friendly” contrary, “hostile” or to the examiner’s psychological subject may interaction with affect results; (3) predictability polygraph lack of charts. No two polygraph will in the examiners read charts consistently.17 same manner unstipulated
We therefore come the conclusion polygraph sufficiently are not accurate exams and re- holding liable so as to mandate the abandonment of our right compulsory Stanislawski. A defendant’s process encompass right does not un- introduce reliable evidence which overrides “established of rules procedure designed and evidence both to assure fairness reliability guilt and in the ascertainment of or inno- supra 302; cence.” v. Mississippi, Chambers at State v. Ash, Accuracy Consistency See: Hunter “The & of Jour, Polygraph Diagnoses,” 1 Police Science Examiners’ Administration, (1973) giving twenty which describes experienced polygraphers. charts to seven Three months given twenty experts. later the same charts were these “Agreement results were stated as follows: between the two judgments same made different examiner at times was high average consistency (occasion agree to occasion —an 85% ment) consistency for the seven examiners. The of the individual ranged high from examiners involved a low of to a 75% 90%.” ,See Supra Mendoza, also: State v. 372. 80 Wis.2d experts” (1977) N.W.2d 260 where “battle of the ensued over contrary readings charts. *22 stipulation rule Conner, supra at 458. The Wisconsin designed the to assure pronounced in is StanislawsM polygraph reliability of in the introduction fairness and Supreme by the Iowa in evidence. was stated results As evidentiary Court, stipulation tantamount a is objection: waiver of challenging trial ground third for “Defendant’s is ruling excluding polygraph evidence court’s admitting stipulated alleged inequity of
based on the ar- excluding unstipulated This evidence. evidence and admitting the evi- gument misconceives basis party other- stipulation. a who pursuant When dence admissibility right evidence object of to the wise has consents to gives up evidence, he of admission right object. principle under which This is the his received. stipulated polygraph evidence [Citations is omitted.] invoking a rule of evi- objection of “An is a means regulated. proof of at trial is admission dence which adversary system, evidence In our [Citation omitted.] it objection in case for what is is received without worth. lated objection stipu- when an is This is no less true given Contrary up. away than is otherwise when it admissibility argument, the issue of to defendant’s in of the ad- polygraph no more hands evidence is admissibility any versary to which an find no merit evidence than is the issue of may lodge objection. adversary a valid Wé ground.” supra Conner, State at 459. fact, agreement admissibility stipulate to the polygraph jury results also be a waiver of a credibility18
determination of and a of cross- waiver examination. 1975), Alexander, (8th Cir. 526 F.2d In United States jury at 168: admission was noted the effect on the trial, it evidence is offered evidence “When infallibility, akin to likely of near with an aura to be shrouded laying During Delphi. the course of the ancient oracle of equate
Proponents unstipulated polygraph exam testimony expert psychia- with that of of a use its trist, fail to into considera- proponents but the same take many judges experienced trial and scientific tion that *23 testimony question role of medical writers of renown the psychiatric polygraph of in our a nature and examiners present evidentiary polygraphist trial, his foundation the will at reliability generally be own of which will assessment the test’s physical percent. present evi- well in of 90 He will also excess dence, polygram, the form of to him to advert in the the enable jury’s physiological responses attention to which various recorded support upon presentment his Based the of tend to conclusion. day jurors, particular evidence, present form of scientific despite sophistication increased and their and educational levels likely give significant, capacities, if not intellectual are still to weight opinion conclusive, polygraphist’s whether the to a as to being ques- response in to a is truthful or deceitful his defendant bearing dispositive the on a in a To tion issue criminal case. extent accepted unimpeachable con- that the are results by cautionary by jurors, despite the trial clusive instructions collectively judge, jurors’ responsibility the traditional ascertain ajudge guilt preempted.” the facts and or innocence is United Alexander, supra States v. at 168. juries problem according prestige of undue reemphasized People Barbara, 255 171 evidence was N.W.2d 1977): (Mich. “[B]y polygraph, of the we run dan- at use gerously by by substituting close to a trial machine for a trial jury.” Supp. (D. Wilson, Ct. Md. 361 F. United States problem undue influence 1973) the of that it was stated may jury cross-examination: not be cured on a prop- jury admissibility suggest can a proponents that of “The testimony ex- competence of an erly merit of the the and assess n subjected is du- This contention aminer cross-examination. poses expert validity, of an as a The cross-examination rule. bious attorney as much as task; who knows it the rare a formidable is interpretation in- expert. the numerous subtleties Given mysteriousness polygraphy the tech- and in modern herent great. jury danger citizen, of confusion of the nique give weight may misled, to the jury and undue testimony.” jury medicine, specializing modern trial. Doctors of psychiatry sciences, and the not de- behavioral have veloped knowledge nor marshalled their and resources degree diagnosis analysis to such a that human mind can be referred to as an exact science. Thus, by allowing expert this evidence to be received as testimony, causing problems are we not for undue jury justice in its search all con- for the truth and cerned, litigants general public? as well as the improve Should we not for the truth and re- search quire testimony a set of standards for all medical psychiatric require expert nature and witnesses be board certified and should we not hasten likewise day require polygraphers be board certified acceptable prescribed with an set of standards of com- petence expertise judicial system? approved recognized Stanislawski, supra,
As we in State v. *24 objection polygraph testing gained general that has not acceptance longer rejecting is no valid as a reason for polygraph opportunity evidence. for Nevertheless, extraneous factors to so influence the test results is great, leading potential jury and the for into col- considering inquiries lateral polygraph when it is evi- question credibility clear, dence on the of a is witness’ so precedent we established in a Stanislawski condition polygraph the admission of evidence. That condition is stipulation prosecutor, the written defense coun- taking person being sel That test. condition satisfied, polygraph evidence is on an admissible issue credibility court, in the discretion of trial with a right limited appropriate of cross-examination and an purpose instruction as to the for which the is evidence holding poly- admitted. court’s in This Stanislawski that general graph acceptance tests have scientific under- investigative their as an scores usefulness tool. Use of encouraged, investigative purposes for tests is to be designed discouraged. stipulation not is condition provide encouragement possible fairest this in the way. requirement stipulation that entered given polygraph into before is the test insures searching examination is to as a tool out be used truth, confusing jury. potentially not a device into, opin- stipulation expert
Unless the is entered an ion on the examination is based results not admissible evidence.
By Judgment and orders affirmed. Court. — (concurring). HANSEN, I concur CONNOR T. J. However, with the result reached in case. as stated dissenting opinion Mendoza, in a in State v. 80 Wis.2d (1977), my opinion 187, 258 it N.W.2d stipulation the court should withdraw the rule enunci Stanislawski, ated State Wis.2d N.W.2d (1974), and hold that the results of a ex amination Fulton are not admissible evidence. (Okla. App. 1975).