Branton v. Oregon State Penitentiary

750 P.2d 183, 89 Or. App. 597

• Court: Court of Appeals of Oregon
• Decided: February 24, 1988
• Docket: 02-86-017; CA A40095
• Status: Published

Opinion

WARDEN, P. J.

The Supreme Court vacated our decision, 83 Or App 571, 732 P2d 926 (1987), and remanded this case to us for further consideration in the light of State v. Lyon, 304 Or 221, 744 P2d 231 (1987). We affirm.

This is a review of a prison disciplinary proceeding. In our earlier opinion, we relied on our holding in Higley v. Edwards, 67 Or App 488, 492, 678 P2d 775 (1984) that, under ORS 183.450(1), it is error to admit polygraph evidence over the objection of a party. We concluded that, because petitioner did not object but agreed to take the polygraph with the understanding that it would be used as evidence, it was admissible. In Wiggett v. OSP, 85 Or App 635, 738 P2d 580, rev den 304 Or 186 (1987), we disapproved Branton v. OSP, supra, to the extent that it suggests that polygraph evidence is inadmissible in prison disciplinary cases over the objection of a party.

In State v. Lyon, supra, the Supreme Court held that

“polygraph evidence is inadmissible for any purpose in any legal proceeding subject to the rules of evidence under the Oregon Evidence Code, and henceforth [sic] its admission, pursuant even to the parties’ stipulation, is error.” 304 Or at 233. (Emphasis supplied.)

The only change in the law since State v. Brown, 297 Or 404, 687 P2d 751 (1984), which we cited in our former opinion, is emphasized in the above quote. Brown had left open the question whether polygraph evidence was admissible on stipulation. The holdings in Lyon and Brown, however, are limited to proceedings subject to the rules of evidence under the Oregon Evidence Code. This is not such a proceeding. See ORS 421.190. Because it is not, we conclude that nothing in Lyon requires a change of our previous holding that the polygraph evidence was admissible.

Affirmed.