State v. Lyon

744 P.2d 231, 304 Or. 221, 1987 Ore. LEXIS 2097

• Court: Oregon Supreme Court
• Decided: October 13, 1987
• Docket: TC 23-853; CA A35195; SC S33792
• Status: Published

Opinions

CAMPBELL, J.

In State v. Brown, 297 Or 404, 445, 687 P2d 751 (1984), we held that polygraph evidence is not admissible, over proper objection, in any civil or criminal trial in this state. We reserved opinion as to the admissibility of such evidence pursuant to a preexamination stipulation. Id. at 445 n 35. We accepted review of this case to resolve that issue. For the reasons set out below, we hold that polygraph test results are inadmissible as evidence in the courts of this state, even when admissibility has been stipulated by the parties.

Defendant was convicted of murder in the shooting death of Mr. Terry Reiser. At defendant’s trial, the court permitted the state to introduce into evidence against defendant the results of a polygraph examination administered by detective Michael Plester. Before taking the examination, defendant had received Miranda warnings and had read and signed a “polygraph stipulation form.”¹ Defendant had not yet been charged with the crime and was not represented by counsel when he signed the stipulation and took the examination. The results of the examination were not favorable to defendant. The court also permitted the state to introduce, over objection, out-of-court statements made to police by defendant’s father and defendant’s testimony before a grand jury.

Defendant appealed his conviction, assigning as error the admission of each of these pieces of evidence.

The Court of Appeals concluded that the out-of-court statements made by defendant’s father were inadmissible hearsay and that their admission into evidence was reversible error. The court remanded on that basis for a new trial. State v. Lyon, 83 Or App 592, 733 P2d 41 (1987). However, the court rejected defendant’s arguments regarding the introduction of the polygraph results and of his grand jury testimony. Id. at 602-03. Defendant petitioned this court to review those issues.

Defendant raises three alternative arguments against admitting the polygraph evidence in this case: (1) That polygraph evidence should not be admissible even upon stipulation; (2) that even if polygraph evidence is held admissible pursuant to a proper stipulation, this stipulation fails because defense counsel did not join in it; and (3) that the stipulation is not enforceable because the parties entered into it before charges were filed against defendant. For the reasons set out below, we agree with defendant’s first argument and hold that OEC 403 bars the introduction of polygraph test results in evidence even when the parties have stipulated to its admissibility.

The issue presented in this case is one of first impression in this court. However, an impressive body of precedent from other jurisdictions is available to aid us in our resolution of this issue. Though the available authority is almost unanimous in holding that polygraph results may not be introduced into evidence upon the motion of either party, the jurisdictions appear to be almost evenly split on the question of admissibility of polygraph evidence pursuant to the parties’ stipulation.² The momentum does not discernibly favor either stance.

Those courts that admit polygraph evidence under stipulation typically rely upon one or the other of two basic rationales. A few courts maintain that the stipulation enhances the reliability of the polygraph by permitting the parties “to control * * * those variables deemed significant to fairness and reliability.” Corbett v. State, 94 Nev 643, 646, 584 P2d 704 (1978). However, most courts that permit the introduction of polygraph results pursuant to stipulation hold that by entering into the stipulation the parties waive the right to object or are estopped to object to the introduction of the proffered evidence.

“We believe [the admissibility of stipulated polygraph evidence] derives not from the fact that the stipulation somehow imbues the evidence with reliability, * * * but from the fact that the parties are estopped, by their stipulated waiver of the right to object, from asserting the unacceptability of the evidence * *

Wynn v. State, 423 So2d 294, 299 (Ala Crim App 1982). Accord, e.g., Alexander v. State, 449 NE2d 1068 (Ind 1983); State v. Marti, 290 NW 570 (Iowa 1980); State v. Lassley, 218 Kan 758, 545 P2d 383 (1976); State v. Renfro, 96 Wash 2d 902, 639 P2d 737 (1982). This waiver argument is occasionally couched in terms of “fairness”:

“Basic is the element that the State is entitled to fair treatment as is the defendant. Since the accused would undoubtedly rely on the results, if positive, it would be unreasonable to allow him to defeat their introduction because the results were unfavorable.”

Cullin v. State, 565 P2d 445,457 (Wyo 1977). Accord Corbett v. State, supra.

We noted in Brown that the leading case on stipulations for the admission of polygraph evidence is State v. Valdez, 91 Ariz 274, 371 P2d 894 (1962). In Valdez, the defendant, his counsel and the county attorney had entered into a written stipulation to the admissibility of a lie detector test to which defendant agreed to submit himself. At defendant’s trial on a charge of possession of narcotics, the trial court, over defendant’s objection, permitted the polygraph operator to testify to the results of the examination. The Supreme Court of Arizona concluded that:

“[a]lthough much remains to be done to perfect the lie-detector as a means of determining credibility we think it has been developed to a state in which its results are probative enough to warrant admission upon stipulation.”

91 Ariz at 283.

The court held that “lie-detector evidence is admissible to corroborate other evidence of a defendant’s participation in the crime charged” and, if the defendant testifies, “to corroborate or impeach his own testimony.” Id. This admissibility was conditioned upon the satisfaction of certain “qualifications”:

“(1) That the county attorney, defendant and his counsel all sign a written stipulation providing for defendant’s submission to the test and for the subsequent admission at trial of the graphs and the examiner’s opinion thereon on behalf of either defendant or the state.

“(2) That notwithstanding the stipulation the admissibility of the test results is subject to the discretion of the trial judge, i.e. if the trial judge is not convinced that the examiner is qualified or that the test was conducted under proper conditions he may refuse to accept such evidence.

“(3) That if the graphs and examiner’s opinion are offered in evidence the opposing party shall have the right to cross-examine the examiner respecting:

“a. the examiner’s qualifications and training;

“b. the conditions under which the test was administered;

“c. the limitations of and possibilities for error in the technique of polygraphic interrogation; and

“d. at the discretion of the trial judge, any other matter deemed pertinent to the inquiry.

“(4) That if such evidence is admitted the trial judge should instruct the jury that the examiner’s testimony does not tend to prove or disprove any element of the crime with which a defendant is charged but at most tends only to indicate that at the time of the examination defendant was not telling the truth. Further, the jury members should be instructed that it is for them to determine what corroborative weight and effect such testimony should be given.”

Id. at 283-84. A number of courts have adopted the Valdez “qualifications” in whole or in part in concluding that polygraph results are admissible as evidence pursuant to the parties’ stipulation. E.g., Wynn v. State, supra; Corbett v. State, supra; State v. Renfro, supra. See also State v. Stanislawski, 62 Wis 2d 228, 306 NW2d 8 (1974), overruled in State v. Dean, 103 Wis 2d 228, 307 NW2d 628 (1981). The imposition of these elaborate procedures and preconditions to admission appears to reflect judicial recognition that the volatile mixture of uncertain reliability and extreme persuasiveness represented by polygraph results must be handled gingerly, if at all.

At least two states that initially adopted the Valdez criteria later reversed field and held stipulated polygraph results inadmissible. State v. Grier, 307 NC 628, 300 SE2d 351 (1983), overruling State v. Milano, 297 NC 485, 256 SE2d 154 (1979); State v. Dean, 103 Wis 2d 228, 307 NW2d 628 (1981), overruling State v. Stanislawski, 62 Wis 2d 730, 216 NW2d 8 (1974). One state that initially adopted Valdez later wholly abandoned the requirement of a stipulation and now admits polygraph evidence upon either party’s initiative subject only to foundational requirements of the polygraph operator’s expertise, the reliability of the particular testing procedure used and the validity of the tests made on the subject. State v. Dorsey, 88 NM 184, 530 P2d 204 (1975), overruling State v. Lucero, 86 NM 686, 526 P2d 1091 (1974).

Those courts that reject the admissibility of stipulated polygraph evidence do so on the grounds (1) that the stipulation does not improve the reliability of the polygraph results, e.g. Pulakis v. State, 476 P2d 474 (Alaska 1970); Fulton v. State, 541 P2d 871 (Okla Crim App 1975); Romero v. State, 493 SW2d 206 (Tex Crim App 1973); (2) that juries are likely to be unduly persuaded by the polygraph evidence, e.g. People v. Anderson, 637 P2d 354 (Colo 1981); State v. Grier, 307 NC 628, 300 SE2d 351 (1983); (3) that the parties can stipulate to facts but cannot by stipulation change the law regarding the admissibility of polygraph evidence, and (4) that it is logically inconsistent to hold polygraph evidence inadmissible when one party seeks to introduce it but admissible by the parties’ stipulation. Even commentators who champion the general admissibility of polygraph results question the basis in logic of admitting pursuant to stipulation evidence that it is otherwise inadmissible. Tarlow, Admissibility of Polygraph Evidence in 1975: An Aid in Determining Credibility in a Perjury-Plagued System, 26 Hastings L J 917, 953-56 (1975).

A leading case on the exclusion of stipulated polygraph evidence is Pulakis v. State, 476 P2d 474 (Alaska 1970). The Alaska Supreme Court there reasoned:

“The central problem regarding admissibility is, not that polygraph evidence has been proved unreliable, but that polygraph proponents have not yet developed persuasive data demonstrating its reliability. * * * On the basis of our study of the relevant literature, we are not prepared to say whether polygraph examiners’ opinions are reliable. * * *.

“On the basis of our study of the judicial authority and academic literature in this area, we conclude that the results of polygraph examinations should not be received in evidence over objection. Even if no objection has been tendered, the trial court ordinarily should reject such evidence. A stipulation for admission does not increase the reliability of polygraph results and therefore should not lead to any deviation from the exclusionary policy.”

476 P2d at 479.

We find particularly instructive the experiences of two states that recently ended prolonged experiments with the Valdez requirements and concluded that stipulated polygraph evidence is no longer admissible in evidence.

In 1974 the Supreme Court of Wisconsin adopted the Valdez criteria for admission of stipulated polygraph evidence in State v. Stanislawski, supra. Seven years later, in State v. Dean, supra, the court overruled Stanislawski and held inadmissible polygraph evidence submitted pursuant to stipulation. In an exhaustive opinion the court reviewed its experiences with the Stanislawski rule, then addressed anew the issue:

“* * * whether in theory and in application the four Stanislawski conditions which are designed to achieve the court’s objectives of having the parties waive objection to the validity of the basic theory of polygraphs, of enhancing the reliability of the proffered polygraph evidence, and of ensuring the integrity of the trial justify admissibility of polygraph evidence.”

103 Wis 2d at 265-66.

The court concluded that they did not, stating:

“We recognize today, as we did in Stanislawski, that the science and art of polygraphy have advanced and that the polygraph has a degree of validity and reliability. We are, nevertheless, not persuaded that the reliability of the polygraph is such as to permit unconditional admission of the evidence. Our analysis of and our experience with the Stanislawski rule lead us instead to conclude that the Stanislawski conditions are not operating satisfactorily to enhance the reliability of the polygraph evidence and to protect the integrity of the trial process as they were intended to do.

“The Stanislawski rule which appeared in 1974 to be a reasonable compromise between unconditional admission of and unconditional rejection of polygraph evidence does not appear at this time to be the satisfactory compromise, and we decline to continue to permit the admission of polygraph evidence pursuant to the rule set forth in Stanislawski.”

Id. at 278-79.

Two years after Dean, North Carolina joined Wisconsin in abandoning Valdez. In State v. Grier, 307 NC 628, 300 SE2d 351 (1983), the North Carolina Supreme Court ended its nine-year experiment with Valdez that had begun with State v. Milano, supra. The court emphasized, as the Wisconsin court had, that:

“[ajdmissibility of this evidence has not been based on the validity and accuracy of the lie detector, but rather that by consenting to the evidence pursuant to stipulation, the parties have waived any objections to the inherent unreliability of the test. The stipulation itself and the other conditions [to admissibility] were to operate as a compromise between total rejection and complete acceptance of polygraph evidence.”

307 NC at 640. The court was “forced to conclude that the stipulation accomplishes little toward enhancing the reliability of the polygraph,” and that subjecting admissibility to the discretion of the trial judge is not “a sufficient safeguard to ensure reliability of the polygraph test results in a particular case.” Id. at 642. The court was “also disturbed by the possibility that the jury may be unduly persuaded by the polygraph evidence,” and was not convinced that the cautionary instructions required by Valdez sufficiently meliorated this possibility. Id. at 643-44. The court concluded “that the admission by stipulation approach does not resolve some of the more perplexing problems attendant to the use of polygraph evidence,” id. at 645, and that consequently “in North Carolina, polygraph evidence is no longer admissible in any trial.” Id.

In State v. Brown, supra, we held that upon proper objection, polygraph test results are not admissible into evidence in any trial or other legal proceeding subject to the rules of the Oregon Evidence Code. We concluded that though “under proper conditions polygraph evidence may possess some probative value and may, in some cases, be helpful to the trier of fact,” 297 Or at 438, “the probative value of polygraph evidence is far outweighed by reasons for its exclusion.” Id. at 440. We conclude that the stipulation of the parties does not cure these difficulties, and that these same considerations necessitate the exclusion of polygraph evidence even when the parties stipulate to its admission.

In determining whether we will admit polygraph evidence introduced pursuant to the parties’ stipulation, we first consider the terms of the stipulation and what the stipulation purports to do. We note that certain items in the stipulation form are simply not proper subjects of stipulation. That defendant, having had the operation of the polygraph explained to him by the police, “believe [s] it to be a scientifically reliable instrument and * * * stipulate^] that it is so reliable” is testament to the officer’s powers of persuasion but is not binding upon the courts of this state. Like the Alaska Supreme Court in Pulakis, supra, at 479, we concluded in Brown that “no judgment of polygraph testing’s validity or potential rate of error can be established based on available scientific evidence,” 297 Or at 433. The parties’ stipulation to the polygraph’s reliability does not change this. Nor does defendant’s “stipulation] that these results are admissible evidence” vitiate our pronouncement that “polygraph evidence shall not be admissible” over objection in Oregon’s courts. 297 Or at 445.

The parties may stipulate to facts. Where the admissibility of an item of evidence is conditioned upon the satisfaction of certain foundational requirements, the parties may stipulate to the satisfaction of those requirements and will be bound by that stipulation. However, they may not by stipulation change the law to render admissible that which we have concluded is not admissible. As other courts have recognized, the “stipulation” to the admissibility of polygraph results constitutes the parties’ mutual waiver of the right to object to the introduction into evidence of those results. The Washington Supreme Court, in the course of adopting the Valdez requirements, characterized such stipulations as follows:

“When there is a stipulation as in this case, the prosecution and the defense, knowing that the degree of reliability is open to question, in effect gamble that the test will prove favorable to them.”

State v. Renfro, 96 Wash 2d 902, 906, 639 P2d 737 (1982).

We have determined that we will not permit this gamble in Oregon’s courts. Because of the importance of the institutional values implicated by the admission of polygraph results into evidence, we hold that we will not recognize a stipulation between the parties to the admissibility of polygraph evidence.

In Brown we were concerned with the “undue delay in administering justice that would occur if we were to allow the admission of polygraph evidence in all cases.” 297 Or at 441. We are not convinced that the admission of the evidence pursuant to stipulation significantly reduces the risk of such delay. We are particularly concerned with consumption of time and potential confusion of issues resulting from challenges to the accuracy of the test. Even if the stipulation at issue were read as foreclosing challenges to the qualifications of the examiner and the reliability of the polygraph test, or the introduction of opposing test results, it cannot be argued that defendant would be foreclosed from challenging the manner in which his or her test was conducted, the form of the questions asked, or inquiring into any of the myriad factors that affect the accuracy of a particular test. We quoted the following passage from United States v. Urquidez, 356 F Supp 1363, 1367 (DC CD Cal 1973), with approval:

“* * * [Although the inquiry was far from complete, the experience of this case has amply shown that, as of now, the validity of a polygraphic test is dependent upon a large number of variable factors, many of which would be very difficult, and perhaps impossible, to assess. In a given case, the time required in order to explore and seek to adjudicate such factors would be virtually incalculable (we did little more than make a beginning in the present case). Accordingly, this court is impelled to the conclusion that the administration of justice simply cannot tolerate the burden of litigation inherently involved in such a process.”

Quoted in Brown, 297 Or at 442 (emphasis added). Nor is it likely that a “stipulation” that would adequately address all these factors could be drafted or, if successfully drafted, withstand judicial scrutiny. The North Carolina Supreme Court, in overturning its own prior adoption of Valdez and holding stipulated polygraph evidence inadmissible, stated:

“The validity of the polygraphic process is dependent upon such a large number of variable factors, many of which are extremely difficult, if not impossible, to assess, that we feel the stipulation simply cannot adequately deal with all situations which might arise affecting the accuracy of any particular test.”

State v. Grier, 307 NC 628, 645, 300 SE2d 351 (1983).

Of greater concern even than the possibility of undue delay is the potential for misuse and over-valuation of the polygraph evidence by the jury. We stated in Brown:

“Polygraph evidence may well divert the trier of fact from the direct and circumstantial evidence presented in a case to a distorted valuation of the polygraph evidence. Polygraph evidence is not just another form of scientific evidence presented by experts such as ballistics analysis, fingerprint and handwriting comparisons, blood typing and neutron activation analysis. These other tests do not purport to indicate with any degree of certainty that the witness was or was not credible. By its very nature the polygraph purports to measure truthfulness and deception, the very essence of the jury’s role.”

Brown, 297 Or at 440-41.

This is certainly no less true when the evidence is introduced pursuant to stipulation than when the evidence is introduced by one or other of the parties. In fact, that the parties stipulated to its introduction and to its “reliability” may only exacerbate the prejudicial impact of the polygraph evidence. Our primary considerations in reaching our conclusion in Brown were the probable effect of polygraph evidence upon the integrity of the trial process and our respect for the traditional role of the jury. See also People v. Anderson, supra; People v. Baynes, supra; State v. Catanese, 368 So2d 975 (La 1975); Akonom v. State, 40 Md App 676, 394 A2d 1213 (1978); State v. Grier, supra; State v. Dean, supra. The parties cannot by private agreement “waive” these vital institutional concerns.

A stipulation neither enhances the uncertain reliability of the polygraph examination nor blunts the prejudicial effect of polygraph results upon the jury. The same considerations that compelled us to conclude in Brown that polygraph results are inadmissible over the objection of either party compel us now to conclude 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 its admission, pursuant even to the parties’ stipulation, is error. On retrial, the court will exclude from evidence the proffered polygraph test results.

We agree with the Court of Appeals’ analysis of defendant’s challenge to the admission of his testimony before the grand jury, 83 Or App 601-03, and affirm on that point. Defendant’s decision to testify was clearly voluntary and was not the result of any constitutionally proscribed police conduct. See State v. Sparklin, 296 Or 85, 672 P2d 1182 (1983). Admission of that testimony was not error.

The Court of Appeals remanded the case for a new trial because of the admission of inadmissible hearsay. We agree that the conviction should be reversed and the case remanded for the reasons stated by the Court of Appeals and for the additional reasons set forth above. The decision of the Court of Appeals is affirmed. The case is remanded to the trial court for a new trial.

1 The form read:

“I, HOWARD LYON, do hereby request the opportunity to undergo a polygraph examination in connection with the investigation of the matter of the killing of Terry Reiser in order to use the results of said examination in my defense. I hereby certify that I have not previously taken or attempted to take a polygraph examination regarding the facts of this criminal charge.

“I hereby acknowledge that I fully understand the following rights concerning a polygraph examination.

“1. I have the right to remain absolutely silent and not to speak to the polygraph examiner;

“2. Any statement I make to the examiner before, during and after the examination can and may be used against me in a court of law;

“3. I have the right to consult an attorney concerning the advisability of making any statement, taking this examination and signing this stipulation;

«4 *****

“5. I have the right to have my attorney present when I do make a statement; however, I agree that because of the nature of a polygraph examination my attorney may not be present in the room during the actual examination;

“6. I have a right to terminate this examination at any time with only those results already obtained being admissible for or against me in a criminal proceeding;

“7. Anything I say must be freely and voluntarily said;

“8. I have spoken with my attorney specifically regarding this stipulation and will waive the requirement that his signature appear hereon.

“I, NOW, KNOWINGLY, FREELY AND VOLUNTARILY WAIVE THESE RIGHTS SO THAT THE RESULTS OF THIS POLYGRAPH EXAMINATION MAY BE USED FOR OR AGAINST ME AT ANY CRIMINAL PROCEEDING TO WHICH THEY RELATE.

“I hereby acknowledge that I have had explained to me the operation of the polygraph machine and I believe it to be a scientifically reliable instrument and I stipulate that it is so reliable. I further have had an opportunity to discuss the background and qualifications of the operator, MICHAEL PLESTER, and I acknowledge that he is a qualified person by reason of his training and experience to operate the machine, administer the examination, interpret the results of the polygraph examinations given by him and render an expert opinion as to the truthfulness of the answers given. I also hereby acknowledge that I have been advised that the results of a polygraph examination are not ordinarily admissible as evidence in a court of law either for or against me without my consent and the consent of the District Attorney.

“I DO NOW, KNOWINGLY FREELY AND VOLUNTARILY REQUEST THAT THE QUESTIONS PROPOUNDED BY THE EXAMINER, MY ANSWERS AND RESULTS OF THE ABOVE DESCRIBED POLYGRAPH EXAMINATION BE INTRODUCED AT ANY CRIMINAL PROCEEDINGS TO WHICH THEY RELATE AND DO STIPULATE THAT THESE RESULTS ARE ADMISSIBLE EVIDENCE FOR OR AGAINST ME IN ANY SUCH CRIMINAL PROCEEDING.

“The State of Oregon by and through the District Attorney reciprocally stipulates that the above polygraph results may be received in evidence for or against HOWARD LYON in any future proceedings involving the parties.”

Provision number 4, reading:

“I have a right to a court-appointed attorney to be paid from public funds if I am without funds;”

was crossed out, and the notation “Not charged with crime,” was added.

2 Among the decisions permitting the introduction of stipulated polygraph results are Wynn v. State, 423 So2d 294 (Ala Crim App 1982); State v. Valdez, 91 Ariz 274, 371 P2d 894 (1962); White v. State, 269 Ind 479, 381 NE2d 481 (1978); State v. Marti, 290 NW2d 570 (Iowa 1980); State v. Roach, 223 Kan 732,576 P2d 1082 (1978); Corbett v. State, 94 Nev 643,584 P2d 704 (1978); State v. Renfro, 96 Wash 2d 902, 639 P2d 737 (1982); Cullin v. State, 565 P2d 445 (Wyo 1977).

Among those holding stipulated polygraph evidence inadmissible are People v. Anderson, 637 P2d 354 (Colo 1981); People v. Baynes, 88 Ill 2d 225, 58 Ill Dec 819,430 NE2d 1070 (1981); Conley v. Commonwealth, 382 SW2d 865 (Ky 1964); State v. Catanese, 368 So2d 975 (La 1979); Akonom v. State, 40 Md App 676, 394 A2d 1213 (1978); State v. Grier, 307 NC 628,300 SE2d 351 (1983); Fulton v. State, 541 P2d 871 (Okla Crim App 1975); Romero v. State, 493 SW2d 206 (Tex Crim App 1973); State v. Dean, 103 Wis 2d 228, 307 NW2d 628 (1981).