*1 228 Wisconsin, Plaintiff-Respondent-Petitioner,
State Dean, Defendant-Appellant. Arvid E.
Supreme Court Argued May 1, 1981. July 6, 1981. No. 79-1257-CR. —Decided (Also reported 628.) in 307 N.W.2d petitioner For the argued by the cause was Thomas J. Balistreri, attorney assistant general, with whom on the (in court) briefs Follette, was Bronson C. La attor- general. ney defendant-appellant For the (in there were briefs appeals) argument oral Cushing, Glenn L. public assistant state defender. ABRAHAMSON,
SHIRLEY S. J. This is a review of a decision of the court appeals, Dean, State v. (Ct. App. 1980), Wis.2d N.W.2d 23 which re- judgment versed the of conviction of the circuit court for county, Judge. J. Byrnes, Walworth John Circuit The issue in this case is whether Dean is unfavorable to admissible over defense coun- objection stipulation required pursuant sel’s Stanislawski, to State Wis.2d N.W.2d *2 (1974), charged was Dean executed after he was represented by the offense was counsel. but before he polygraph The admitted evidence. The circuit court appeals in- polygraph court of held that evidence affirm and the conviction. We admissible reversed appeals. decision of the court begins facts with a consideration Our discussion we view presented. Because case and issue of this to consider whether we should as an occasion this case polygraph then summarize evidence, we to admit continue techniques polygraph and operative theory and development law on the Wisconsin review the of this in courts admissibility polygraph evidence examining pre-Stanislawski, Stanislawski state, exper- judicial assessing post-Stanislawski After cases. polygraph rule and with Stanislawski with the iences jurisdictions, we conclude in this and other manner which not function in a rule does the Stanislawski pro- enhances necessary degree integrity of the trial to the tects forth, we justify For the set its reasons continuance. evidence is we hold that hereafter proceeding unless any in this state criminal admitted on or before was executed Stanislawski September 1,1981.
I. disputed. pertinent in the case at bar are not facts The charging 1978, complaint a Arvid was filed On June to remain the scene of an accident failure at Dean with resulting (1) injury, in violation secs. 346.67 July 346.74(5), exe- 1978, Dean 1979-80. On Stats. stipulation. cuted a Stanislawski following day, at appearance, his initial willing Dean indicated that he was proceed that time to without counsel. The circuit court indicated on the record that it understood that Dean had agreed polygraph. a take August
On 1, 1978, examiner Robert Peters adminis- tered regional test to Dean at Berlin the New laboratory. taking crime polygraph, Before Dean signed examination statement of consent rights, which he that he stated understood his Miranda attorney, that he did not wish to consult with an that he required that he knew could not be test with- take the out his consent and that he consented to the interpreted examination. The examiner the results indicating deception questions on the relevant *3 which Dean was asked about the offense. appointed request.
Counsel Was then for Dean at his 1979, April 3, commenced, On before trial district the attorney brought a motion to admit the evidence of the objected ground results. Defense counsel on signed stipulation that Dean without of benefit hearing counsel. A was held on the motion. Dean he stated that had been told that could he withdraw his sixty days consent to the of admission the results within taking attorney disputed of the test. The district hearing court, this assertion. At this neither the circuit prosecutor, inquiry any nor defense counsel conducted any nor introduced evidence on the polygraph identifying deception as a method for or on the conditions under which examination taken, procedure, qualifications the actual test whs competence or the of examiner method of inter- pretation granted of test results. circuit court stating state's motion to admit the right counsel, signed his to that Dean had waived agreement had permitted renege and that he should agreement unhappy on the because he the re-
231 part suits. The evidence was admitted state’s case chief. Dean was on trial to convicted a jury. appealed contending entering Dean into a Stanis- stipulation la/wski is a tactical decision for coun- defense sel and voluntarily defendant cannot a and intelli- gently execute the without or waiver advice appropriate of counsel or admonitions the trial court. distinguishes stipulated Dean a examination interrogation the defendant from oral custodial counsel, defendant, which the without benefit of submits warnings. receiving Ari- after the Miranda Miranda v. (1966). zona, 384 436 U.S. interpre- appeals
The court of
based its decision
an
v.
619
Craft,
of State
N.W.2d
tation
Wis.2d
grounds
(Ct. App. 1979),
on other
aff’d
Wis.2d
(1980).
appeals
held that
The court
In appeals result the court of considered rejected proposed by and other parties. alternatives suggested determining validity The state stipulation by applying governing the rules admis- resulting sibility interroga- of statements from custodial evidentiary questions complexity tion. The relat- ing however, distinguishes polygraph, a defend- ant’s decision to execute a from the defend- police receiving speak decision to after ant's warnings. per pro- proposed se Miranda Dean rule hibiting unrepresented entering from into a defendants stipulation. complexity Stanislawski valid attacking difficulty procedure and the per testimony se in favor of the militate some extent question Adoption per of a se rule would raise rule. right proceed amendment a defendant’s sixth whether California, impaired. Faretta v. had been without counsel (1975). court’s choice of alternative This 422 U.S. presents largely dependent Dean to the issue solutions upon view of the nature court’s effectiveness of the conditions set Consequently we take this occa- in Stanislawski. forth the nature of the sion reexamine allowing admission Stanislawski decision upon stipulation parties polygraph evidence upon the other conditions set forth the decision. This timely in our examination is view since we have now years’ experience seven with the over Stanis- accumulated sum, appropriate, In we deem it lawski rule. consider- ing case, posed in this to consider first the issue whether continue to admit evidence on the we should Stanislawski. basis of
233
Our reexamination of Stanislawski at
this time is
by
aided
the fact
in several of
which have
the cases
raising questions
come
this court
before
about admissibil-
ity
of
evidence, counsel have
addressed
question of whether Stanislawski
should be overruled.
argument
argument
case,
At
oral
this
in oral
previous
attorney general’s
cases,
has
office
taken
position
oral
that Stanislawski should be overruled. At
argument
counsel, a
in the case at
defense
staff mem-
bar
Defender,
of
stated that the
ber
the Office
State Public
taking
position
no
Stanislawski
Office was
as such.
particular
however,
in this
noted,
Defense
counsel
case,
conviction should
reversed whether
his client’s
be
case.
Stanislawski
or not
court overruled the
undertaking
inquiry is to
principal
Our
concern
this
provided a
rule has
Stanislawski
determine whether the
regulate
fairly
courts can
the trial
means
which
maintaining a
admission of
evidence while
reliability
this evidence.
for
standard
workable
in this
not been successful
Stanislawski
has
If the
rule
much
regard
prolong its existence
no
we see
reason
required
procedure as
less to add an additional
in this case.
the facts
requires
discussion
some
inquiry in this
Our
case
admitting
scientific evidence
the standards
not
do
polygraph. We
reliability
the scientific
to examine
the occasion
treat
case
however
1923),
(D.C. Cir.
Frye
States,
Fed. 1013
v.
United
admissibility
or
scientific evidence
standard for
acceptability
or
question
the scientific
have
parties in this case
polygraph. The
theory of the
issues,
of these
on either
or briefs
submitted evidence
these issues. Commonwealth
we do not decide
;
(1978)
381 N.E.2d
Vitello,
Mass.
1975),
(8th Cir.
F.2d
Oliver,
States
United
however,
are,
(1976).
aware
We
( HH I— is device The machine which measures involuntary e.g., responses, bodily blood records certain rate, respiration, pulse pressure, and skin resistance accurately electricity. quality measures and A machine poly- responses. theory of the body records these *7 objec- graph and measured that the recorded machine is analyzed responses determine physiological tive can be to mind; Acceptance of subjective state the individual’s deception detecting as a method test premise is a re- requires there acceptance of the lying and lationship and emotions between between changes. The re- physiological and measurable emotions changes physiological lying, and emotions between lation scientifically or body understood completely is not in the appears support empirical evidence explainable, but existence. its a accuracy as of the machine
Acceptance of both the poly- operative theory of the measuring and device determining whether the step in graph the first is but detecting deception. method is a reliable test machine universally apparently conceded is It separating truth capable of independently is not itself examinee and of the deception. The interaction from given is in which test the conditions the examiner and play in the test.3 all a critical role Deception 2-6, 215-250, (2d Inbau, 304-307 Truth and & Reid 1977). ed.
The successful use of produce depends reliable results biological on the examinee’s and psychological makeup. Inbau, Decep- Reid & Truth and (2d 1977). tion 228 ed.
The training, examiner’s competence, experience, in- tegrity during and conduct critically the test is as im- portant as the machine and the examinee.4 examiner must obtain baek- recognized: The crucial role of the examiner is well “[T]he important any [polygraph] most factor involved in the use of is ability, experience, integrity education and of the examiner himself,” DeBetham, Supp. 1377, United 348 F. States v. (S.D. supra 1972), 2, quoting Inbau, and Cal. note Truth Reid & Deception (1966). Inbau, Deception Truth 304-305 Reid & (2d 1977) qualifications training, ed. discusses examiner inter alia, as follows: utility regard “Basic to all has been with said accuracy Polygraph technique the matter of examiner qualifications. reasonably intelligent person, “An examiner must be an awith good degree. background preferably college He educational — itself, practical good an should have understanding intense interest in the work personality nature, of human traits and suitable ‘get general ability which be evident from his otherwise along’ people and to be liked his friends and asso- well training experience ciates. No amount of or will overcome the lack necessary qualifications. of these “Many persons functioning Polygraph now do not examiners possess qualifications. these basic . . . *8 judgment training required period “In our for the of an ex- training Moreover, aminer it is months. must be individualized experienced competent, a or a from examiner examiners with suffi- frequent permit to make cient volume actual cases the trainee Polygraph him- to conduct tests observations examinations and personal supervision. self . . . under the instructor’s technique simple “Mastering Polygraph matter. It re- is no requires quires all of one’s work- and effort. In fact it much time omitted.) (Notes ing energy. . . .” time and regulating providing licensing, and law for the has no Wisconsin operators. disciplining examinee; ground crime and must on the information biologically psychologically or unsuitable screen out the interview; pre- examinee; pre-test must conduct a must questions; supervise environment pare the test must influences; must ask to eliminate distortive the test examination; questions during must conduct post-test interview; interpret and must results of the testing interpreta- part A test. crucial of the and of the physiological is the evaluation tion of the data examiner’s behavior, squirming, of the examinee’s such as visible coughing, sniffing, hesitancy. Inbau, and Truth Reid & 1977). Deception, 17, 19, 23, 292, (2d ed. deception
The determination of truth or cannot directly responses made or from the examinee’s verbal recordings depends from the of the machine but rather interpretation analysis on the examiner’s physiological changes measured and recorded establishing analysis requires charts.5 The chart timing accounting between stimulations and responses, idiosyncracies of the examinee as well as usual or physiological responses anger, anxiety unusual or due analysis other emotions. The examiner’s of the charts merely physiological is not based on the recorded meas urements but subjective impressions on the examiner’s the outward behavior of the examinee. Thus while the enveloped is precision an aura of scientific objective body responses, large measurement of dependent measure the result of the is on the opinion opinion of the examiner, and that drawn from process completely which is almost in the control examiner. 5 For a discussion of the polygraph evidence, nature of testimonial,
is whether
physical,
expert opinion
it is
evidence,
or
Chambers,
see State v.
240 Pa.
(1977).
238
III. experience We turn now to consider this court’s the use of in criminal cases. be- evidence We gin by briefly reviewing history of the admission of this court before Stanislawski. proceed to review Stanislawski decision and We involving polygraph after that then the cases decision.
A. (1933), Bohner, In 246 314 State N.W. Wis. v. permit upheld court’s refusal this court the trial Citing jury. presented lie to be to the test of a detector only reported the admission of decision on the then (D.C. detector, Frye States, Fed. 1013 United lie instrument, a 1923), the court concluded Cir. device, progressed from systolic pressure had not blood stage. court experimental demonstrated utility present “may have some said that while the great ultimately value in the administra- may hasty that a too not be overlooked justice, it must tion of may stage development during of its acceptance it will overbalance bring complications and abuses Bohner, utility to have.” it be assumed whatever years in LeFevre v. later Ten at 658. supra, 210 Wis. (1943), we held State, 416, 425, N.W.2d 288 242 Wis. stipula into a though parties entered had that even evidence, trial admission tion for findings poly- two properly excluded had court In other defendant. graph administered tests repeatedly to allow refused cases this post-Bobner or not whether polygraph evidence introduction admissibility. State See to its parties consented (1955); State 529, 537, N.W.2d Perlin, 268 Wis. *10 Baker, 368, 364, (1962); 16 Wis.2d 114 426 v. N.W.2d Meyer 418, v. State, 425, 25 Wis.2d 848 130 N.W.2d ; (1964) 206, Nemoir, 214, State v. 62 214 Wis.2d N.W.2d (1974). 297
B.
Stanislawski,
In State
730,
v.
62
216
Wis.2d
8
N.W.2d
(1974),
court
reconsidered the rule of blanket ex-
stating
Frye
clusion of
evidence. After
“general
admissibility
acceptance
of
test
as
of
in
one
particular
belongs,”6
in
court found
field
which it
acceptance
change
of
a
that
there had been marked
polygraph testing
forty plus years since Bohner
in the
Frye,
fifty
years
concluded
plus
and the
since
and
6
Frye
subject
The
much discussion
test has been the
of
Catanese,
Supreme
368
v.
Court in State
debate.
Louisiana
Frye
975,
(La. 1979), explained
in the
flaw
So.2d
978-979
test as follows:
subject of
‘general acceptance’
has been
“The
standard
particular,
years.
scholarly
In
considerable
criticism
recent
‘general acceptance’
requirement
suggested
been
it
has
validity
requirement
of the test
is tantamount
to a
court
susceptible
as to
the trial
demonstration
enable
of such
Clearly,
de-
judicial
criteria used
notice
fact.
take
not re-
termining
admissibility
should
of scientific
required for
unquestionable
quire
demonstration
the instant
types of scientific
judicial
facts. Other
of scientific
notice
stringent
less
evidence under
been admitted into
evidence have
merely require
‘an aid to
to be
which
standards
jury’
”
omitted.)
(Notes
probative.’
enough
to be
or ‘reliable
Giannelli,
Frye test,
e.g.,
The Admis-
see,
For a discussion
States,
Frye
A
sibility
v. United
Evidence:
Novel Scientific
(1980);
v.
Reed
Later,
Century
L. Rev. 1197
80 Colum.
Half
Williams,
(1978);
v.
State,
374,
State
364
A.2d
283 Md.
Barbara,
People
1978);
(Me.
v.
Mich.
cians. In experts one court . . testified that opinion qualified polygraph expert of a higher opinions experts was high than the and ballistics as opinions fingerprint experts.’ as the ex- While perts agree aminer are most aminations training experience of the ex- that attaining results, those accurate crucial ex- familiar with the field believe diagnosis reasonably constitute a reliable deception responses questions truth and traditional admission asked. To finger- expert testimony as to tests, handwriting an- prints, alyses, recognize blood tests or ballistics forty fifty years past courts have seen testimony expert judicial as admissible aids analyses, narcotics, to Nalline tests for neutron activation tests, ton- breathalyzer for alcoholic tests blood alcohol police artist tent, electroencephalographs, voiceprints, chromatography. drawings spectrometer and infrared fifty forty during or that, same it find clear We ‘twilight from the moved years, tests have standing degree Frye scientific to such zone’ expert rejection testi recognition that unconditional longer testing indicated.” is no mony based omitted). (notes Stanislawski, 62 Wis.2d 738-741 significant had advances noted that the court While court concluded polygraphy, in the made field been poly rejection of “withdrawing an unconditional necessarily mean does graph evidence *12 admissibility.” 62 an unconditioned is to have rejec unconditional court withdrew The at 741. Wis.2d adopted for the conditions and polygraph evidence tion by the set forth admissibility polygraph 274, Valdez, 91 Ariz. v. in State Supreme Court Arizona not ex- 1962).8 did The court (en banc 894 P.2d 371 a similar Supreme Court took Judicial The Massachusetts 421, Juvenile, N.E-2d 365 Mass. v. A position in Commonwealth explaining follows: (1974), 120, 123-124 legal “, and acknowledge these scientific Although we . . progress making polygraph is the developments indicate recognition-, evidentiary complete toward hoped evolution for say unwilling at time are nevertheless we
pressly polygraph decide whether evidence was reliable Frye any standard under or under other standard. question reliability The court straddled the both stipulated unstipulated polygraph view test. We approach by taken the Stanislawski court as to reliability of the as consistent with that taken Valdez, Supreme upon the Arizona Court the case Supreme Arizona Court which Stanislawski relied. The reliability tech- persuaded nology admissibility not on but on and based forth in it set stipulation and the other conditions 900; supra Valdez, P.2d State See the decision. P.2d 1067- Treadaway, 163, 568 116 Ariz. Hill, 16, 317 (1977); 40 Ohio and State App2d (1963). N.E.2d
A commentator described Valdez student decision as follows: . . despite “. The defendant Valdez claimed that agreement signed he before his
test, the unfavorable results of that test should have been lacking excluded scientific the trial court as unreliable and acceptance. agreed supreme Arizona standard in the Fatalo case has been met and that test subject results should henceforth be to the same of evi- rules applicable dence acceptable to other expert forms of scientific do, however, evidence. We polygraph testing think that has ad- point prove vanced to the significant where it could to be of value process to the criminal admissibility initially trial if its is limited carefully designed protect defined proper circumstances justice. effective administration of Accordingly, criminal we hold agrees for reasons stated below that if a defendant in advance regardless admission the results of a outcome, judge, their searching inquiry trial after a close and qualifications examiner, into the fitness the de- examination, fendant such methods utilized in conduct- ing may, tests, proper discretion, in the exercise of his admit results, binding evidence, not as or conclusive but to be con- guilt. pre- all other sidered with evidence as to innocence or As a requisite judge first would make sure that the con- defendant’s protected.” rights fully are stitutional *13 acceptance that the and scientific of the evi admission, dence did not merit but was nonetheless im pressed procedure had been ‘consider ably improved Frye Believing since United States.’ recog procedure court must embrace ‘[m]odern psychology nized modern sciences,’ of . conditions . or other . ... compromised complete the court ac between ceptance complete rejection admis and allowed the polygraphic upon stipulation sion the written merely parties, provided (1) of both that: the evidence is nature, only impeaching, if the corroborative in or but stand; jury (2) instructions stres defendant takes administered; sing (3) role this corroborative are expert cross-examination is available for party; (4) the dis opposing is at the admission Note, Polygraphy: Short court.” cretion of trial (1977). to Fla. Truth, 29 U. L. Rev. Circuit “Generally Note, Remaining also Problems See for 375, 399 Accepted” L. Polygraph, 53 U. Rev Boston (1973). reasoning of
Another commentator described fol- stipulated admitting polygraph evidence courts lows: require that lie detec- stipulation .. cases do not “. test,104 Frye enough satisfy proven tion be nor will enter reliable they side has refused the tests if either admit merely permit Thus, the courts stipulation. into a will gamble that the tests prosecution and defense to context, need In the tests prove favorable them. experimental reasonably only reliable as to be be shown stipulations and therefore, courts, enforce tests.105 the evidence cases not because the tests in these admit Frye standard, rather but regarded under the as reliable theory parties have estoppel or all under waiver because .For . results . of the test . to the admission consented only moment, stand cases parties take permit will the courts proposition that experimental where device gamble an a reasonable to do so. agree, will be forced but none all ‘general Frye’s acceptance' was written terms Oliver yet holding admission limited
test,
its
525 F.2d
Thus,
required not that
stipulation.
results
*14
accepted
generally
they
sufficiently
the tests be
ac-
but
be
cepted
Additionally
stipulation.
be
to
under
admitted
Id.
737.
general acceptance
only
acceptance
the court
limited its
test
to
among polygraphers,
adopting
and declared that
it
a discre-
tionary
rejection
rule.
Id. at 736. In
in
view of the same court’s
Alexander,
(8th
1975),
United States v.
526 F.2d
167 n. 6
Cir.
general acceptance
only
polygraphers
a
test
and its
limited
to
stipulation,
refusal
to allow the admission
a
of test results absent
both
court’s latter
either
statements must
construed as
stipulations.
solely
unintended
relevant
dicta or as
in the context of
This
Circuit
construction is
somewhat
a Ninth
corroborated
stipulation
(9th
Eagle
Co.,
case,
Herman v.
Ins.
396 F.2d
Star
(per curiam),
expressly
1968)
admissi-
Cir.
which
noted that
any
bility
stipulation
lie
not have
detector
test results on
did
reliability.
implications as to
Comment,
“105 Annot.,
(1973).”
The Truth
In Stanislawski dis- testing expressly nor reliability of the justifying ad- conditions four of the role the cussed however, clear, It is evidence. mission examination, concluded the court sufficiently interpreted, and conducted properly when justify responses to deceptive and truthful indicative agree parties its into if admission thereto if and the other conditions set are forth Stanislawski unstipulated polygraph met. Because remained apparent Stanislawski, inadmissible even after it is the court each as viewed Stanislawski conditions having function, obtaining namely, parties’ a waiver objection validity poly- theory the basic enhancing assuring graphs, of the test or integrity of the trial. We shall examine condi- each tion its function.
Requiring parties a and defense counsel to enter encourages agreement stipulation discussion eventual regard general only subject relia- to not of the subjects specific bility testing but also more examiner, required qualifications such designation examiner, phrasing the test specification under of the conditions questions, given. An of both concern which the test is obvious given parties stipulation is that to a a manner that be conducted such to the defendant challenge by party or the trial results can withstand a forth extent set can to certain court. The *16 agreement aspects ad- the parties’ on certain of the way, the in this the When used ministration of test. reliability enhancing of the stipulation to can contribute the test. agree the parties not discuss or the Whether defendant, testing the to to be administered of
details operates stipulation is it primary of effect challenge validity of the objection to the or of as waiver testing theory and eliminates of basic parties opportunity for the to establish necessity or the of satisfy trial in each case to a foundation party polygraphs. validity If either theory and basic testing, reliability convinced stipulate test. State to the refuse to party can Mendoza, 122, Wis.2d (1977) N.W.2d 260 (Robert Hansen, dissenting). As the court J. further explained State, in Robinson 152, 162, 100 Wis.2d (1981), stipulation requirement N.W.2d set “[t]he up permits this court in Stanislawski each of parties independent to make an evaluation of the reliabil- ity willingness rely evidence and their on it.” reliability
Because the of the test to be administered cannot be determined until after the actual examination has administered, been imposed Stanislawski conditions stipulation reliability in addition to the to ensure the actually test which was administered pursuant defendant individual to the integrity to ensure the at which the trial the evidence sought was to be To admitted. achieve these ends Stanis- lawski authorized the trial court discretion to its stipulated accept polygraph testimony if refuse qual- was not trial court convinced that the examiner was proper condi- or that the test conducted under ified provides tions. This condition an additional control over reliability. gave opposing
Stanislawski party oppor- also tunity respect cross-examine the examiner qualifications training, conditions under which the administered, test was possibilities the limitations of and interrogation, and, error in at the discre- judge, any pertinent tion of the trial other matter deemed inquiry. Stanislawski, Wis.2d 742-43. Permitting subjects provided cross-examination on these impetus parties further for the to seek to have the test performed optimum qualified under conditions ex- high integrity. addition, pert In cross-examination on assisting subjects the traditional function of these serves evaluating proffered jury in *17 evidence. limiting requiring
The fourth condition instruc- jury polygraph tion be when read the evidence was sought jury put polygraph admitted ensure that the the perspective.9 presented proper The in the ob- jective prevent by either a trial or a trial of the was condition, others, polygraph. like the was This fourth protect integrity of trial. intended to the also Essentially conditions the latter three Stanislawski particular reliability test of the issue of the address parties stipulated admission to the results when had waiving thereby objection evidence, polygraph. validity theory of of the basic obtaining When, parties’ explained of in terms theory objection validity the basic of of waiver reliability enhancing proffered polygraphs, of of integrity ensuring trial, of of evidence and appear to be a workable Stanislawski conditions four largely dependent method, the adversarial one albeit injecting process, of into cases a standard sought. in which admission in this of Stanislawski effectiveness measure is, regard course, theory not in but reflected in which it impact rule on the cases of the Stanislawski Polygraph Evidence, I— Wis J See Instruction entitled Criminal, which states: testimony “During you of [name this trial have heard (also pertaining known of a to the results witness] test) person took the who lie detector taken [name as a prove testimony by or itself not tend to does The examiner’s test]. any has disprove the crime with the defendant element of which charged, whether [name tends to indicate but most been telling he the time took person the truth at took test] who opinions of You are bound examination. case, in the any expert. all the evidence should consider You opinion carefully evidence with all you consider should just weight credit case, giving it such evidence in other to receive.” you is entitled it deem
249 applied. post- We therefore turn to examine the Stanislawski decisions this court.
C. post-Stanislawski importance cases indicate the the court four attaches the Stanislawski conditions as ensuring means of the and the this evidence integrity post-Stanislawski of the trial. The show cases consistently the court has demanded strict adherence to the Stanislawski conditions. yost-Stanislawski
In the several eases court has held principle unstipulated polygraph firm to the evi State, In Gaddis v. dence is admissible. Wis.2d (1974), days ten after decided N.W.2d Stanislawski, this court would issue arose whether stipulation to ad permit to the Stanislawski alternatives to do so. court refused mit the evidence. This sought into admission Gaddis had testimony opinion expert results polygraph and request him at his taken of a test polygraph examination approval trial court. The taking being After truthful. that he was indicated to be to another exam to submit offered Gaddis prosecution by an examiner selected conducted the test results agreed stipulate in advance proof offer in evidence. Gaddis’s admissible would trial testify he did. The at trial as he would indicated admit proof and refused to rejected the offer Bohner, relying testimony, on State (1933), which was 657-658, 246 N.W. Wis. affirming trial court’s In of trial. time law at the refused evidence, this court ruling saying: rule, expand the Stanislawski or relax request, followed-—defendant’s here procedure “The laboratory ex- crime state approval court’s conducting 165.79, test, aminer’s could under Stats.— sec. procedure an be viewed additional alternative Case, particularly authorized in Stanislawski poly- where defendant offered to submit another graph prosecutor that, having cedure for the admission of by any examination administered examiner agree However, designate. justices cared to all *19 proper pro- determined in Stanislawski this evidence in ought state, we or alternative consider additional procedures relaxing forty-year-old so soon after by- experience total ban on Some with the such evidence. stipulation-only procedure additions should be had before State, 63 . to Wis.2d .” it should be considered. . Gaddis at 126. Schmidt, 668, 230 In State ex Harris v. 69 Wis.2d rel. (1975), the Stanislawski we concluded that N.W.2d equally applicable to evi- the use of rule was compli- hearings. probation Absent dence revocation polygraph evidence rule the ance Stanislawski with was inadmissible. 601, State, N.W.2d
In Zelenka 83 Wis.2d a sought results of introduce the (1978), the defendant suppression unstipulated polygraph test a favorable hearing. of the examination of the results The evidence prove a detective that father was offered Zelenka’s asked improper after the defendant comments made signed. stipulation had been Stanislawski counsel. No of United the lead that we follow Zelenka advocated 1972), (ED Supp. 90 350 F Mich. Ridling, States v. if proffered polygraph results admissible and hold the appointed by a court to tests would submit the defendant citing so, do and polygraphist. declined to This court Gaddis, supra, 249, quoting p. also declined and requiring stipula- rule a modify or the Stanislawski relax tion. State, Zelenka, Lhost v. Wis.2d months after
Six again sought to (1978), a defendant 620, 271 N.W.2d polygraph test unstipulated favorable an introduce grounds rule process Stanislawski challenged due stipulation. only on is admissible that evidence charged Lhost attempted rape, prose- and the cution’s case rested on victim’s identification defendant as well physical as substantial evidence. The by pretrial defense had requested motion a and the court ruled that no test would be admissible stipulation unless a stipula- was filed. No Stanislawski executed, tion had been and the trial court refused ad- mit the evidence. argued
Lhost that the favorable results should be admissible without requirement stipulate state to the introduction right process of the evidence violated his due to com- pulsory process prosecutor because could bar him from introducing probative and relevant evidence which exculpatory. prior cases rais- The court reviewed the ing supra issue, e.g., Gaddis, p. ex this State rel. supra Harris, p. 250, Zelenka, supra p. and con- choice cluded these cases “indicate clear conditioning position from court not to withdraw its *20 admissibility upon prior stipulation.” Lhost, a supra, court, review- at 634. The Lhost after Wis.2d decision, ing other recent cases from the Stanislawski on jurisdictions and recent studies and commentaries “unstipulated polygraph polygraph, the concluded the sufficiently so as to mandate are not reliable exams Lhost, holding in of our Stanislawski.” abandonment specifically supra, court at 645. Thus the Wis.2d stipulation enhancing placed on as a means of reliance the reliability point evidence to the where the otherwise evidence becomes admissible. The inadmissible that a test court referred to studies which indicated given stipulation possibly is than without a less accurate given stipulation.10 explained the one with a The stipulation as follows: value 1 0 general acceptance pre-test be does not seem to that a There stipulation of the test. See McMorris v. enhances the (7th 1981). Israel, 458, 463, 14n. Cir. 643 F.2d cogent by most Dr. “One studies was done Laboratory article, ‘Implications Martin Orne his Deception,’ Polygraph Research for the Detection of (1973). addressing accuracy In problems to lie stipulation required detector when a is for ad- results missibility prior and the is taken following counsel, the behest of defense he makes points: “ ‘Whereas usual examination is carried out polygrapher in a at arm’s situation is where length potential tionship, agency, employ a of a law enforcement —in (or actual) employer rela- or in some similar inevitably di- a where his decision would have suspect’s rect in which effect a future —the context inevitably friendly polygrapher out his test carries is suspect his different. In latter case the realizes help attorney employed has examiner per- preparation innocent For the his defense. however, little; relatively for the son this matter considerably. The guilty guilty the situation individual it alters polygrapher by friendly when tested individual decep- he the test is knows that the results of tive ings if found only against find- him. The kind of used will his where attorney utilize are ones would which his polygraph. being As innocence is consequence, greatly corroborated being are fears detected client’s about able in the As have been to show we reduced. acknowledged by polygraph ex- all is laboratory, and as major suspect’s detection is the perts, a factor fear of ly- response physiological assuring augmented while his aspect which is ing. most precisely the situation It is em- is dramatically when the altered per- attorney. respect ployed by the defendant’s poly- haps the client accorded even deference to convince client graph will tend examiner really attempting help cause and to less his polygrapher detectable, even thereby make less him if afraid (Emphasis supplied.)” Lhost guilty.’ pp. 194-195. he is supra, 642-643. State, Wis.2d at *21 argu- rejected in Lhost the and court considered as are unstipulated examinations
ment that evidence, such as ballistics forensic tests as reliable
253 fingerprint court, blood and tests identification. The distinguishing exam from forensic test ing quoting Abbell, Polygraph Evidence: The Case Against Admissibility Trials, in Federal Criminal 15 Am. variety Crim. L. 29 (1977), forth Rev. set of sub jective objective factors which affect the result, nearly gauged all of which cannot until given. test is State, Lhost 85 620 at 644-645. v. Wis.2d recognized The court that the authoritative studies “are sharp dispute today they in as as when Stanislawski were Despite was written in Id. 1974.” at 640-641. the serious expressed Lhost the in- reservations the court about polygraph testing herent and about use- law, of the court of as distin- fulness investigative guished tool, the its as from usefulness an it the Stanislawski court concluded would abide rule, Lhost, supra, Lhost court 85 at 648. The Wis.2d Texas, Washington 388 reliance on viewed Lhost’s Mississippi, 410 U.S. (1967), and Chambers v. 14 U.S. stip requiring support position that his (1972), misplaced admissibility is as unconstitutional ulation inherently require unre did not because those cases validity, questionable such or evidence of liable evidence part unstipulated polygraph exam, be admitted as an right process.11 compulsory 152, State, 100 in Robinson v. Wis.2d recently, More adhering rule (1981), court, 301 N.W.2d stipu- compliance the Stanislawski requiring strict Milwaukee in the requirements, found no error lation 1 1 (Iowa Conner, 447, Accord, 457-458 see State 241 N.W.2d Dorsey, P.2d Contrary, see State v. 1976). 88 N.M. (1975). Comment, see process argument, due For a discussion Polygraph Does Exclusion Evidence: Compulsory Process Rights?, L. 12 Conn. Due Process a Criminal Violate Defendant’s Polygraph DueA Results: Note, Admission (1980); Rev. (1979-80). Perspective, 55 Ind. L. J. Process
county trial court’s refusal to poly- admit the of a results graph stipulated examination which had been to in an- county relating charge. other to another The facts charges case are somewhat unusual. In March 1977 against county Robinson were in dismissed Waukesha on request county prosecutor of Waukesha based on stipulated polygraph report. outcome a Robinson charged county charges forgery was on re- Milwaukee in county. sought to those dismissed in Waukesha lated He stipulated poly- to introduce the results of the Waukesha county. graph The court test into the trial in Milwaukee stipulation coun- into in entered Waukesha held that county pros- ty by prosecutor in a a Waukesha Waukesha satisfy forgeries the Stams- did not ecution three proses requirements by different prosecution a a lawski county. cuting forgeries attorney in another for other addition, the court de- Robinson, 162. In 100 Wis.2d stipulation to hold even if it were termined that attorney attorney the district bind could of one district stipulated county the results another Milwaukee county to the were not relevant Waukesha only questions charges related county relevant since county offense. to the Waukesha steadfastly refused show, court has As these cases stipulation or procedures to the alternative consider stipu- stipulation. If the requirements of the to relax require- strictly to the Stanislawski adhere lation did not This not admissible. ments, polygraph evidence was the court’s concern compliance reflects of strict rule limited, only con- under admissible conditions.12 trolled permitting prosecutor constitutionality refusing polygraph test results
bar admission it the court determined in which other cases are There stipulation which did error admit was Craft, Wis.2d fully In State comply Stanislawski. (1980), this court held that 128, 135, 298 N.W.2d charged was arrested the defendant before into entered stipulate challenged test was in the Seventh Appeals Circuit Court of Israel, McMorris v. 643 F.2d (7th 1981). Cir. The Seventh Circuit Court *23 Appeals prosecutor’s right held that to veto the polygraph test in that explanation case without was con- stitutionally impermissible. McMorris had been con- victed in strong-armed Wisconsin of robbery. He chal- lenged constitutionality deny- the Stanislawski rule ing admission of the prose- test to which the cutor, explanation, without stipulate. refused
The
citing
federal court
appeals,
Washington v.
Texas,
(1967),
388
14
U.S.
Mississippi,
Chambers v.
410
284,
(1973),
Hughes
U.S.
294
Mathews,
576 F.2d
(7th
1250,
1978),
1258
dismissed,
Cir.
cert.
Addressing
exculpatory significance
poly-
graph examination,
the seventh
in
circuit noted that Mc-
credibility
Morris the state’s case rested on the
stipulation
not an effective Stanislawski
not
was
admissible
as evidence at trial.
Streich,
(1979),
In State v.
87 Wis.2d
Although analysis logical in McMorris is cogent, interpretation it is based on a mistaken of Stams- lawski. The seventh circuit concluded that “thesis under- lying stipulated Stanislawski results [is] competent . are evidence . . examinations [and absence of the the evidence is inadmissible that] sufficiently without it reliable because stipulation.” The seventh circuit 643 F.2d 461-463. distinguishes approach Stanislawski thus Wisconsin’s in which approach pure “consent” from the state regarded as stipulated is not inadmissible competent. recognize failing circuit erred
The seventh stipu- whether did not Stanislawski decide reliable unstipulated polygraph evidence was or lated Frye any under other standard. standard or under the interpretation contrary is, Stanislawski substantially on Appeals, based Circuit Court Seventh prin- than on the and waiver rather principles of consent reliability. decision Stanislawski ciples of scientific scien- judgment recent of both the reflects this court’s poly- made the developments to have which seem tific continuing' significant dis- graph and the more reliable its test and pute as to theoretical law. in a court of usefulness stipulated poly only
Although requirement straight simple appears graph be admitted *25 engendered problems the rule forward, application of the question. cases—Mc process Four due in addition (1974), 521 State, 596, 223 N.W.2d 65 v. Wis.2d Adoo (1977), 1, 250 State, N.W.2d 76 Wis.2d v. Turner (1978), Schlise, 271 N.W.2d v. 86 Wis.2d State 269, 298 N.W.2d State, 99 Wis.2d Barrera and (1980) admissibility involved the of confessions ob- —all with operator. tained polygraph the assistance of the parties The in these cases had not entered into a Stanis- stipulation. lawski the These raised of what cases issue constitutes the the defend- examination. If part ant’s statement was the examination stipulation; it was not admissible was no there because interrogation part if the defendant’s statement of an part polygraph examination, and not the admissi- the bility governed rules the the statement usual governing admissibility of confessions. making logical separation difficulty in between
The a interrogation polygraph testing will con- and custodial long prohibits restricts tinue arise as as the court or together, Viewed the admission of evidence. however, application the Stanis- show these cases the stipulation requirement exclusionary rule lawski as an or state be asserted a defendant which ob- prevent evidence or evidence admission of conjunction test. tained 258 N.W.2d Mendoza, State Wis.2d had question. parties presented (1977), a different under issue into and the became entered party could in what manner a what circumstances re- challenge polygraph evidence. Mendoza stipulated stipulation and the vealed the limited effectiveness as means to ensure Stanislaw'ski conditions other examiner, integrity of competency interpretation of test and of the administration integrity results, of the trial. the test evidence, admitting stipulated polygraph Before hearing sponte sua held Mendoza trial court hadwe admissibility In Stanislawski the test results. admissibility of condition second stated discretion was within the polygraph testi- examiner’s admitted The trial court court. trial *26 mony interpreted which the test results to that indicate the trial, defendant was untruthful. At defense counsel sought present testify to respecting witnesses-who would qualifications; the examiner’s the manner in which the polygraph conducted; examination examiner’s the interpretation scoring polygraph and of the examina- tion; reliability the the detec- deception. permit tion of court to de-' The trial refused expert testify fendant’s witnesses to and also refused testimony request he defendant’s after the close of that permitted present ac- be to evidence examiner that improperly. Al- knowledged that he had scored the data though “justice attorney district recommended instructing by trial served” court would best be Mendoza, evidence, jury not to consider the to supra, trial refused accede court 80 Wis.2d attorney’s request. the district stipu- graphically that the ease illustrates The Mendoza be will does not ensure lation itself qualified expert. by properly While administered stipulation be viewed parties to a Stanislawski objection having their otherwise valid waited testing theory validity basic entering reliability into have parties not waived stipulation, are held reliability particular test objection to the their prior fully be assessed cannot since this into to enter parties’ decision examination. The polygraph evidence is the admission however, not risk, does The an extent a calculated risk. will ad- include Stanislawski under properly although not administered the test was mitted correctly. interpreted were or that the results reliability of sought to ensure Mendoza jury presented to its results are before con- defining Stanislawski the second third further admitting the part namely court’s ditions, the trial *27 stipulation parties' evidence on and the func- challenging tion validity in the of the examiner’s testi- mony. Mendoza,
We pretrial hearing in concluded that the proper trial before the court was the occasion for the parties persuade to offer evidence to trial the court as reliability admissibility proffered to the and the of the despite stipulation. appro- evidence “The the priate challenge opinion to time at the admissi- bility informing hearing. purpose This will the serve preventing jury at from the court and being the same time the on proof collateral scien- distracted detours into validity of which evidence, tific fundamental both the already accepted.” at parties Mendoza, 80 Wis.2d have 161. responsibility emphasized trial court’s court the
This admitting polygraph Notwith- process of evidence. in the trial standing parties, court stipulation of the reject said, prof- to admit or has, discretion we stipulated poly- trial admits If the court fered evidence. evidence, to the trial court graph this court instructed prevent trial from to discretion continue to exercise on becoming into issues detoured collateral derailed and time to allow and at same what cor- leeway jury for determine sufficient testimony weight examiner’s effect roborative Mendoza, supra, at given. 162. Wis.2d should recognition straightforward This in the administration failed to ensure inquiries appropriate before were further test and that stipulated in a more resulted admitting the admissibility hearing and an em- limine structured in responsibility of trial court weighty phasis on significance admissibility. of the ad- determining The subsequently confirmed hearing was missibility State, N.W.2d 87 Wis.2d McLemore (1979). We in McLemore concluded that the trial court refusing erred in put allow expert the defendant to on impeach testimony witnesses hearing admissibility examiner at conducted the trial presence jury. court outside the We held right experts the defendant’s dire use the voir subject examination of the examiner “was not McLemore, supra, discretion of the trial court.” 87 Wis. Mendoza, Stanislawski, 2d at 749. Neither nor nor however, suggested guidelines McLemore, standards or determining, trial the hear- use after ing, stipulated polygraph whether to admit the evidence. not, problem however, sole- raised in Mendoza was *28 ly question admissibility stipulated polygraph of of sought to trial At trial Mendoza the court. evidence jury. experts testify the to before call own his procedure permit to this Mendoza this court refused In shifting possibility of it the substantial because raised question the defendant’s of of trial from the the focus the reliability polygraph. guilt of the or innocence limit- as third Stanislawski condition the court read testimony impeaching of the ing to the defendant up- through cross-examination. We polygraph examiner limiting attack the defendant’s court’s held the trial jury in trial to the stipulated polygraph “ (a) witness to cross-examination training; (b) the con- qualifications and the examiner’s administered; (c) the under which ditions technique in for error possibilities of and limitations (d) interrogation; at the discretion and polygraphic pertinent any deemed court, matters other trial of the 742- supra, at Stanislawski, Wis.2d inquiry.” in- been have Stanislawski Mendoza Both 743. parties enter if the to mean terpreted admission stipulation on the Stcmislawski into a forego usual their agreed to have parties polygraph, opportunity impeach expert opinion by calling other expert witnesses.14 presented
The solutions in Mendoza to make Stands- lawski satisfactory conditions workable were not justices several members of the court. Three in Mendoza (Justices Heffeman, Day Abrahamson) have would impeach experts to allowed the defendant to call other opinion. acknowledging examiner’s While that the state’s might complaint experts ensue, these that a battle of the. justices approved use three noted that “Stanislawski largely it was found com- because types parable to other of evidence admitted gen- expert opinion” “principles in the form and the expert testimony application applicable eral should experts “is battle of the problem here.” The every expert testimony best present area and the discerning jury.” judgment of solution is the Mendoza, justice A supra, 80 at 163. fourth Wis.2d Mendoza, Hansen), writing (Justice in dissent Connor judicial opinion expressed that “the interest ad- if we were to hold ministration could best be served polygraph] ad- examination were not results [a Mendoza, supra, 190. 80 Wis.2d at missible evidence.” supra MeLemore, the dissatisfac- In Wis.2d course Stanislawski tion of the court which justices taken was more evident. Three decision had Day Callow) Hansen, (Justices Connor stated *29 polygraph evi- Stanislawski and hold they would overrule dence inadmissible. Abbell, Polygraph
Relying Evidence: primarily on Admissibility Federal Criminal Against in The Case (1977), which 29 L. J. Trials, 15 Am. Grim. 14 independent examiner “Permitting have the defense to an presence in stipulated challenge examination the results Stanislawski, hold contrary and our jury the rule 209, 219, Streich, 274 N.W.2d 87 Wis.2d
ing State in Mendoza.” Seebold, P.2d Ariz. (1979). also State See impeachment limiting to cross-examination. (1975), 1130, 1132 Lhost, supra quoted approval p. dis- had with senting justices problems the admis- on focused two sibility the sub- The first was evidence. subjectivity problem jective nature of the test. The concerning re- question the basic reflects, course, saw the liability polygraph. the court While pre-trial condition, i.e., admis- second Stanislawski asserting judicial control sibility hearing, as a means of danger against protect unreliable poly- whether evidence, concern was dissents’ re- circumstances, any be considered graph could, under of law. a court liable evidence emphasized was the problem the dissent The second heavily rely too jury misled to danger would be opinion “expert” as testimony as efficacy of the Thus the truthfulness. the defendant’s impeachment (limiting condition third Stanislawski con- cross-examination) Stanislawski of the fourth and seriously questioned. instruction) (the jury dition “polygraphy justices dissenting concluded three The investigative may as an be useful present state in its misleading potential for tool, limitations that its but part of it should not [the] are such factfinders supra, McLemore, evidentiary system.” Wis.2d 751.15
IV. rule light experience Stanislawski under the In of our jurisdictions experiences of other the recent whether the we must now determine accuracy system’s requirements assessing legal significantly or the from those of the scientific differ community community. upon which the business business Evidence legal system. adequate in For not be bases its decisions see, e.g., 111.31(4), “honesty legislative policy tests,” secs. 111.32,111.326, Stats. 1979-80. *30 264 provides adequate
Stanislawski rule an means which the trial poly- courts can administer the admission of graph ought evidence and whether the Stanislawski rule govern to continue the admission of results in the courts of this state. considering conditions,
Before
the Stanislawski
we
apparently
note that at
least one state
admits
testimony on the same basis
evidence,16
as other scientific
many jurisdictions
poly-
continue
refuse to admit
graph
including
evidence17
jurisdictions,
and that several
Wisconsin,
admit
prescribed
evidence under
conditions.18
16 See,
Dorsey,
184,
(1975),
State v.
88 N.M.
v.
526
1360
United States
F.2d
Cir.
(8th
Oliver,
1975),
731,
den. 424 U.S.
v.
525 F.2d
737
Cir.
cert.
Bursten,
(7th
(1976);
785
Cir.
United States
F.2d
1977).
1977),
State,
(Del.
18 See, e.g.,
378 A.2d
Williams
State,
(1978); Moore v.
cert. den.
We are
prejudicial effect
polygraph
not admit
evidence view
outweigh-
integrity
trial as
of
evidence on
example,
any
For
ing
probative
the evidence.
value of
polygraph
recognized that
Supreme
the Louisiana
Court
kinds
properly
as reliable as other
obtained “is
evidence
routinely by
accepted
courts” and
evidence
scientific
value,”
“it shall
“high probative
has
but concluded
polygraph
judicial policy
to exclude
be the
Louisiana
time” because
in criminal
trials at
evidence
outweighed
ex-
by
its
probative
the reasons for
value is
1979).
(La.
975,
Catanese,
981
v.
368 So.2d
State
clusion.
experiences
other
of this
courts
The recent
polygraph
conditions
and with the Stanislawski
evidence
position
on the
that the burden
illustrate
merit of the
outweigh
may
polygraph evidence
trial court
assess
any probative
have.
value the
theory
The issue before the court now is whether
application
four
conditions which are
Stanislawski
designed
objectives
having
to achieve the court’s
(Fla. App. 1974);
Chambers,
76,
State v.
240 Ga.
239 S.E.
(1977);
State,
(Ind. App.
2d 324
Owens
In State 39, (W. S.E.2d 45-46 Va. Virginia 1979), Supreme rejected West Court stipulation Stanislawski approach reasoning, alia, inter stipulation that the unreliability did not cure the evidence: problems “There are arising several from the Valdez concept. Its central admissibility thesis of is the written stipulation. Yet it is stipulation clear that written
parties cannot make evidence admissible that otherwise would be words, In stipu- inadmissible. other a written agreeing lation to the introduction of certain evidence is legal not the admissibility. basis for State, its Pulakis v. (Alaska 476 P.2d 1970) (polygraph stipu- test lation) ; 29 Am. Jur.2d Evidence sec. 13. “It is progeny true suggest that Valdez and its that the testimony examiner’s concerning test bears upon the subject’s truthfulness of testimony, credibility. Yet, therefore his if this were the real basis for admissibility, its there would be no need for the stipulation, written generally since any it is held that credibility may witness’ omitted.] impeached. . . . [Citations merely on the issue “However, if the test bore unless ordinarily admissible not be credibility, it would cases stand. Most the witness the defendant took itself, do stipulation, and Valdez follow the Valdez between, whether discuss, much less differentiate only or case-in-chief in the state’s test can be introduced for the . . . impeachment of the defendant. perceive how the written “It is difficult to test be admitted can of the fact impeach any credibility furnish defendant can polygraph in the legal theory sound use problem is An more difficult case-in-chief. even state’s encountered if when attempt these theories we to utilize polygraph test a favorable the taken under a seeks to admit defendant Valdez stipulation. follow the Valdez If we independent proof is not rationale that the credibility, merely defendant any fact but bears extrajudicial ordinarily ex- cannot his own introduce thought They generally to be culpatory statements. are have, self-serving. not encountered too We [Citations.] point. Obviously the defend- case which discusses this gains stipulation if he cannot ant introduce a favorable from a little Valdez polygraph test.” State, expressed A similar Akonom view (1978), App. 676, follows: Md. as A.2d unpersuasive and would venture “We find these cases suggest putting they guilty to the cart before are it, issue is horse. see the crucial well-known As we whether, type law, a matter of evidence *33 sufficiently be way logically trustworthy. It cannot reliable or any argued stipulation significant that a enhances in produced reliability by a so- inherent of evidence process called scientific or art.” 474, (Alaska State, See also Pulakis v. 476 P.2d 479 1970). Dec, People Monigan, App3d 87,
In 72 Ill. 28 Ill. v. 562, Illinois court of (1979), 390 N.E.2d following justifying appeals set seven reasons forth the inadmissibility despite examinations parties: stipulation of the any independent proof “(1) A test is credibility fact, merely of the defendant. but on the bears an “(2) polygraph test has such of the The admission seeking of the impact jury function on the that the truth destroyed.
trial will be “ major part (3) play a should not Unreliable evidence charged acquittal person with a or of a in the conviction crime. “(4) stipulation evidence A cannot make unreliable reliable. “(5) stipulation unreliable evidence A that makes contrary public policy. is admissible “(6) stipulation reliable A that unreliable evidence is really stipulation law and therefore invalid. is “ (7) refuse to It would inconsistent for a court to they are admit tests into evidence because stipula- by unreliable and then admit them into evidence tion.” appeals
In Oklahoma, the court of reversed a line of admitting polygraph stipulation cases poly- potential unreliability of the determined Oklahoma, graph Fulton dictated its total exclusion. v. (Okla. 1975). also Commonwealth P.2d 871 Cr. See Pfender, (Pa. Super. 1980); 421 A.2d Robinson State, 1977). (Tex. App. S.W.2d Crim.
Essentially taken of the admit- view critics on-stipulation approach does little is anything if to enhance the of the agreed evidence; merely parties have to the admission waiving objection thereby their theory validity polygraph. of the basic We challenge view this criticism as a serious to the soundness admitting polygraph stipula- evidence on the basis of a parties. critics, though tion of the The thesis of these contrary perhaps to the view of this court in Stanis lawski, essentially confirmed our in Lhost decisions Although Lhost, supra p. and in Mendoza. we quoted unstipulated studies that indicated that an ex probably amination was subject accurate than less one *34 recognize stipulated poly- stipulation, we did not the Although necessarily graph as reliable. examination a parties appeared to be in Mendoza executed what examiner, thoughtful specifying the time stipulation perhaps place of examination and even some guarantee questions, stipulation proved ineffective stated, a examination, because, a reliable as we have stipulation aspects cover all of the test which cannot might reliability. affect its stipulation
In addition to our concern whether concerned, we are also reliability, functions enhance Appeals as as was the Seventh Circuit Court well allowing validity prosecutor courts, other with the polygraph evi- to introduce veto the defendant’s wish by refusing stipulation. justifica- dence to execute a tion a state veto bears a direct relation both ability re- to enhance the demonstrated availability liability evidence and to the degree. reliability means to enhance to the same of other recognized In the test was Lhost we that the choosing if was limited enhanced the defendant results examiner and if defendant knew that effect, however, at would be used trial. This could adoption technique similar to one achieved of a namely upon request Massachusetts, used appoint- the defendant trial court authorize the polygraph test, ment an examiner to administer a results of would a close which be admissible at trial after searching inquiry pro- the trial court.19 Such Juvenile, 421, See Commonwealth v. A. 365 Mass. 313 N.E.2d (1974); Vitello, 426, Commonwealth v. 376 Mass. 381 N.E.2d (1978). Stewart, In Commonwealth v. 375 Mass. 377 N.E.2d Supreme (1978), Judicial Court of Massachusetts held defendant could first take the test then move step procedure its “The first admission. in this is that the defend- ‘agree irrespec- ant in advance that would results be admissible ” Mass, tive of the outcome of the tests.’ Id. 384. *35 reliability
cedure would enhance the of the test without giving prosecuting attorney an the absolute veto over strategy process trial and would avoid due defense’s problems. solution, however, The Massachusetts while helpful resolving process issue, put due addi- would tional on the trial courts. burdens stipulation
We little to the re- conclude adds liability and that its evidence limited con- reliability through tribution to could be ensured procedure” “Massachusetts which is less on restrictive but which is defendant’s use appears more burdensome on the trial courts. It stating stipulation primarily court this has viewed the validity parties’ acceptance polygraphs per parties’ se and the waiver of the to introduce need laying necessary the foundation otherwise introduce evidence. Thus if the particular polygraph as- evidence is be enhanced or by conditions, sured the retention of the Stanislawski accomplished or the enhancement assurance is to be not but the other Stanislawski condi- tions.
We are also concerned with the second Stanislawski presently stated, condition. As this condition does make required clear whether the trial court is hold hearing sponte every svn case to determine whether polygraph test evidence is admissible or whether the hearing trial court must hold such a and make such a only determination on objects the motion of a party who admissibility. If under Stanislawski power trial court has reject proffered stipulated evidence if not convinced qualified the examiner and that the test was proper conditions, conducted under appear, it would al- though decide, pre-trial court does not now so that a hearing admissibility may mandatory. If the trial police stipulated is to the admission of poly- sua graph its discretion and to exercise examination sponte stipulated polygraph evi- admission of the inquiry, dence, must make a careful the trial court then quali- record, matters as the examiner’s on the as to such training including experience, the fications, her his or administered, conditions under which the test psychological of the defendant as and medical assessment examination, examinee, conduct of the a suitable Only testimony on interpretation results. after *36 court conclude whether such matters could the trial evidence was admissible. stipulated evidence to admit the
The decision whether trial trial court. That the in the discretion of the rests is the choice does not mean court has discretion inclination, or whim or emotion the trial court’s left to meaningful stan trial “unfettered is thorough appellate review.” or from dards shielded (1975). Paper Moody, Albemarle Co. v. U.S. to the trial discretion are left Decisions court’s left judgment, court’s and the of the trial trial court’s exercise guided by principles. judgment “The term sound must be reasoning contemplates process which ‘discretion’ reasonably depends derived of record or on facts that are from the conclusion based inference record legal logical proper standards.” rationale founded on Economy Casualty Co., Fire & 77 Wis.2d Christensen 55-56, Requiring (1977). the trial N.W.2d court to articulate for its decision a safe reasons affords guard against arbitrary or action and fosters careless making. consistency in decision hearings Apparently some trial held sua courts have sponte and others have not. In Mendoza the trial court hearing sponte. held a sua In McLemore the trial court permitted quali- voir dire examination of the examiner’s presence jury fications out of the before the permitted testify. case, examiner was In the instant the trial court reviewed the voluntariness of defendant’s executing stipulated but admitted the any testimony without evidence relative to the qualifications of the examiner or the conditions of the examination. If any are these cases indication of the manner which the second Stanislawski condition has functioned, we must conclude that condition has failed to ensure that trial court will exercise control over stipulated polygraph through exercise of its discretion. making
In comment we intend no criticism of the courts which sought stipulated poly- trial deal graph only guidance evidence with the limited to be gleaned from Stanislawski and later cases. The case law present provides guidelines no standards or to aid the determining trial court in expert whether the is witness qualified, subject, whether the defendant is a suitable conducting whether the interpreting methods used in valid, test are or whether the evidence should be types cases, limited to non-jury cases, certain such as perjury cases, circumstances, and so forth. Under such the burden on the trial court decide each case stipulated whether to admit *37 substantial.
In United States v. Supp. (C.D. Urquidez, 356 F. 1973), Cal. the federal court, spending district after three days hearing full testimony experts concerning of the polygraph instrument, technique administering the of test, validity the the of the test to administered the de- fendant interpretation and the results, of the and after having published read numerous poly- articles about graphy and transcripts testimony experts in an- case, other although concluded that the has merit, much it should not be Recognizing used court. litigant challenge a could proffered the results of a test on the basis of the motivation of the subject, the subject’s physical and condition, mental competence, wording operator, integrity attitude of appropriateness of the control questions, the relevant graphs, reading the district questions, of the on the burden the administrative court concluded that outweighed of the test. The probative value reasoning as follows: its district court summarized “Although opinion, I emphasized have be- in this that there testimony in this case come convinced is much undoubtedly polygraphic It for the art. to be said objective pro- many principal is to uses, has valid and its ascertaining truth, is in which vide a means for goals judicial process. The harmony with the upon it assumptions which physiological and technical appear may that further and it well be valid, relies be developments in the utilization and refinements being place may day a its accorded some merit proceeding. in a court complete, although inquiry far from “However, that, experience amply has shown of this case upon now, dependent validity polygraphic is large many of would factors, a be given which number of variable very difficult, impossible, In a to assess. and perhaps required explore and case, time in order to virtually adjudge incalcula seek to such would factors beginning (we did little more than make ble present case). Accordingly, impelled this court is justice simply can conclusion that the administration litigation inherently involved not tolerate the burden of Urquidez, process.” in such a United 356 F. States Supp. 1363, 1367 (C.D. 1973). Cal. (D. Wilson, Supp. See also United States F. 1973). previously said, Md. merit As we have we can see imposed position in the on the trial court the burden stipulated polygraph to determine evi- whether admit outweigh probative dence value the evidence. apparent it is if second StanislawsM Thus function as a control on the condition might stipulated polygraph evidence it be desirable require hearing a trial court to hold a under this court *38 guidelines addition, standards, Stanislawski. In or cri- teria developed would by have to be for use the trial determining admissibility courts of the evidence and appellate reviewing for use of the courts in the trial court’s exercise of its discretion. impeachment third Stanislawski condition limits
of the examiner’s evidence to cross-examination. Al-
though
impeach-
cross-examination is an effective tool of
ment, may
it
provide
not in all situations
a sufficient
jury
competence
basis for the
assess
of the witness
Wilson,
and the
merits of
test.20 In United States v.
Supp.
(D.
361 F.
Md. 1973), the district court con-
cluded that cross-examination
is not
alone
a sufficient
insuring
saying:
means of
reliability,
20 See, e.ff.,
proof
Mendoza,
Mendoza’s offer of
from
State
supra,
can subjected to cross-examination. mony of an examiner The rule. validity, as a is of dubious contention This task; expert poses formidable a cross-examination of an expert. attorney much as knows as it is the rare Given the numerous subtleties in who interpretation inherent of the the mysteriousness of polygraphy and the modern citizen, danger of confusion technique to the may give great. jury may misled, jury is The testimony. weight undue to the danger geometrically because level “The rises disproportionate evidence polygraph examination influence the germane inevitably exercise, both because will credibility finding of the and because to consumption on the ultimate examination, necessarily involved of time experts. specter of The cross examination and battle by jury than replacing is more polygraph' trial ‘trial slogan. prospect admission of the a felicitous non-party polygraph accentuates by a witness examinations taken States proposition.” United troublesome this 1973). Wilson, Supp. (D. F. Md. allowing experts testify The alternative of testimony expert impeach of the who administered discussed has its own difficulties which were dissenting opinions. majority Mendoza in both (which lacking) presently Absent some assurance is allowing testify utility expert in these witnesses judicial cases, support consumption there is little inquiry such an would entail. An even resources which danger more trial substantial the defendant’s might, permitting testimony, a this become ás result of operator a trial of the and the guilt. of the rather than trial defendant’s essentially rough we view the third condition as Thus permitting compromise attack between the defendant testimony avoiding the feared result polygraph. of the trial will the focus shift Although permit expert in Mendoza we such did
testimony, if the Stanislawski rule is to be continued question should be In re-examined. some cases compromise, doubt, no is an accurate of the measure competing In interests. others we it weight fear recognize weighing not be. capability We that our understanding these interests is limited lack of an weight jury gives polygraph evidence. This *40 concern to last Stanislawski leads us condition.
The fourth and final condition set forth in Stanislawski jury is that the be instructed as to the limited function testimony. Several courts and commentators have dangers policy discussed or “costs” associated polygraph: preju- the admission of the of confusion jury; jury’s dice to the intrusion into the historical role determining credibility witnesses; inordinate use of court time and resources. empirical have no
We data as to the effect instruction or the influence of evidence on the conduct jury of the trial or on the verdict. Courts ob- viously unduly fear that the trier of per- fact will be by polygraph thinking suaded it infallible scientific evidence. are Courts concerned that has an aura objectivity and irrebuttability layman, to the that the lie reputation detector has being percep- a tive discerner of truth, and that the instruction jury’s overcome the inclination accept to the seem- ingly objective and scientific evidence. parties’
The inability to competence attack the examiner or the conditions of the except examination cross impedes examination jury’s ability to under- strengths stand the and weaknesses of the instrument and testimony. evaluate the limiting Yet impeachment appears cross-examination important to be in order to prevent becoming from focus trial in which this evidence is admitted. eighth appeals court of these circuit summarized relating integrity trial
considerations follows: “When is at offered
trial, likely it is to be an of near shrouded with aura During infallibility, Delphi. akin to the ancient oracle evidentiary trial, laying the course of foundation polygraphist present the test’s will his assessment of the own generally which will well in excess of percent. present physical evidence, He will also in the jury’s polygram, form of the him to advert the enable responses attention which presentment physiological to various recorded upon support tend his conclusion. Based particular of this of scientific evi- form dence, present-day sophistication jurors, despite their capacities, increased educational levels intellectual likely give significant, conclusive, weight are still to if not polygraphist’s opinion as to whether the defendant being question response truthful or deceitful in his to a bearing extent peachable dispositive on a in a To the issue criminal case. accepted results as unim- are by jurors, cautionary despite or conclusive judge, jurors’ instructions sponsibility the trial traditional re- *41 collectively adjudge ascertain the facts and guilt preempted. or innocence is U may argued “It that all forms of scientific evidence may upon have jurors may a substantial effect tend factfinding province
to invade the jury; thus, poly- of the graph objectionable evidence is not on this basis. How- ever, polygraph distinguishable evidence is from other types of scientific in scope evidence its is much broader. Scientific analysis, evidence based on ballistic fingerprint comparison, handwriting analysis, voiceprint spectrographic or sis analysis, analy- and neutron activation is solely purpose elicited for identifying either object an allegedly or individual an perpe- involved in the tration of a act. criminal These scientific tests do not purport degree any to indicate with of conclusiveness that the defendant who is so or identified connected object actually committed the jury, crime. The after receiving expert testimony, such has additional re- prove reviewing tend facts which other sponsibility of and, if with the crime connection disprove or defendant’s required jury further be shown, participation is at the time mental state defendant’s
to ascertain the the appropriate cases. crime polygraphist testified has jury a after of the “The role show polygraph examination of a that the defendant’s the results in the crime participation denial expert If the more circumscribed. is much fabricated testimony guilty is is verdict jury, a is believed testimony often usually not limited to mere polygraphist’s The mandated. any limited or other identification crim- participation in the possible aspect defendant’s expert polygraph being Through testimony of the inal act. iri truthful relating his defendant was to whether the crime, the concerning participation in responses opinion on scientific expert proffering his based is thus bearing upon reserved sole issue evidence jury good or guilty? Is this innocent or the defendant —is Alexander, F.2d . . .” States bad? United 168, 169 1975). (8th Cir. . (9th Flores, Cir. also 540 F.2d See United States 1976). jury impact on a uncertain acknowledge question concern. a of substantial We are, question. importance however, of this We express judgment adequacy fourth
able to on the ensuring that Stanislawski condition as a means of per- jury places proper its spective as defined in Stanislawski.
V. conclude, To we have not undertaken evaluate recognize polygraph. today, we We Stanislawski, poly- science and art of did graphy advanced and that has have *42 nevertheless, reliability. degree validity are, and We reliability persuaded polygraph that the is such not
279 permit as to unconditional admission of the evidence. analysis experience Our our the Stanislawski rule lead instead to conclude that us the Stanislawski operating satisfactorily not conditions are to enhance the protect reliability evidence and to integrity process they trial to were intended do. appeared
The Stanislawski rule in 1974 to which compromise reasonable between admission unconditional rejection of and unconditional evidence satisfactory appear does not to be com- this time promise, permit decline continue to we admis- pursuant sion set forth evidence the rule in Stanislawski. reject awaiting continued
We also alternative case-by-case refinement of the Stanislawski rule Adequate developed method.21 in the have not standards years guide seven since Stanislawski trial courts exercising poly- their discretion the admission graph heightens The lack evidence. of such standards our concern that the burden on the trial court to assess the stipulated outweigh may any probative may value the evidence have.
For we forth, the reasons set have we hold that here- after it error for a trial court to admit evi- proceeding dence in a criminal unless a Stanislawski stipulation September 1, was executed on or before 1981. do, however, We view the rule announced this case de- claring polygraph applicable evidence inadmissible as Dean, though even prior was executed 21 other than Conditions the Stcmislawshi can conditions be im posed. example, polygraph only For be admissible testifies, as to the after defendant defendant as to a witness, Vitello, 426, see Commonwealth v. 376 381 Mass. N.E.2d (1978); Moynihan, 468, 582 Commonwealth v. 376 381 Mass. N.E.2d (1978); Allen, Commonwealth Mass. N.E.2d (1979); Moore, (Mass. Commonwealth N.E.2d 1979).
[00] ©(NT Consequently affirm the decision
September we 1, 1981. reversing appeals his conviction. the court of appeals af- By the court the Court..—Decision firmed. affirming (concurring). I concur
DAY, J. agree should appeals I also that this Court in this case. results examination admit it error to hold to.be stipulation was any purpose unless Stanislawski for majority September 1981. The executed on or before a-thorough present survey of the status opinion is among and technicians in courts both work- however, disagree, ing I devices. with the various opinion’s that: conclusion say prepared . . “. the court now . . . be it cannot is so unreliable (Supra, p. any circumstances.” admitted under 278). 233, 245, also, pp. 254 and see State, 739, 751, In McLemore v. 87 Wis.2d 275 N.W.2d Hansen, minority court, (Connor 692, (1979), T. J., J., Callow, I) said: minority present polygraphy concludes that in its “The investigative tool, an state but its useful misleading are potential factfinders
limitations system.” part evidentiary such that it should not be majority problems polygraphy pointed out in the opinion position in the case at bar re-enforces supra. my minority McLemore, position I affirm McLemore.
I am authorized to state that Justice Callow Justice join Steinmetz in this concurrence.