State v. Stanislawski, S

Citation62 Wis.2d 730,216 N.W.2d 8
Decision Date02 April 1974
Docket NumberNo. S,S
PartiesSTATE of Wisconsin, Respondent, v. Robert J. STANISLAWSKI, Appellant. tate 119.
CourtUnited States State Supreme Court of Wisconsin

Jerome A. Maeder, Wausau, for appellant.

Robert W. Warren, Atty. Gen., Thomas J. Balistreri, Asst. Atty. Gen., Madison, for respondent.

ROBERT W. HANSEN, Justice.

Involved in this appeal is the issue of admissibility of polygraph evidence at time of trial, for impeachment or corroboration, on the question of credibility. Defendant's counsel urges that we review the longstanding rule in this court against admitting such evidence. We agree that the time has come to do so.

POLYGRAPH EVIDENCE.

WISCONSIN CASES. Forty-plus years have come and gone since this court rejected polygraph evidence for any purpose and under any circumstances. In the case involved, State v. Bohner, 1 since followed, 2 this court held that ". . . the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made." 3 That test and the quotation come from a federal circuit court case, Frye v. United States. 4 The test of 'general acceptance in the particular field in which it belongs,' 5 has been criticized as 'antiquated on the day of its pronouncement,' 6 but has been often cited and followed, 7 with little mention of the fact that the polygraph evidence in Frye was vindicated when a third person confessed to the murder there involved. 8 We need not reject the Frye test to have reason to inquire, forty-plus years later, whether the lack of general acceptance, then found to exist, still persists.

'GENERAL ACCEPTANCE.' Under the test of general acceptance or scientific standing in the field in which it belongs, there has been a marked change in acceptance of polygraph testing in the forty-plus years since Bohner and fifty-plus years since Frye. There is a widespread use of polygraph testing by industries, banks, insurance companies, police departments, and governments, including the armed forces. 9 The business of private polygraph examiners increased eight to ten times in the decade 1950--1960. 10 This increased use and acceptance reflects the establishing of polygraph tests, conducted by a competent examiner, as having gained "standing and scientific recognition among physiological and psychological authoriites" 11 in their particular field. Experts in the field give a high degree of accuracy or dependability to polygraph examinations, conducted by a competent examiner. 12 Polygraph test accuracy is viewed as comparing favorably with other types of expert testimony such as that given by psychiatrists, document examiners and physicians. 13 In one court case, experts testified '. . . that the reliability of the opinion of a qualified polygraph expert was higher than the opinions of ballistics experts and as high as the opinions of fingerprint experts.' 14 While experts agree that the training and experience of the examiner are crucial in attaining accurate results, 15 those most familiar with the field believe that polygraph examinations constitute a reasonably reliable diagnosis of truth and deception responses to questions asked. 16 To traditional admission of expert testimony as to fingerprints, ballistics tests, blood tests and handwriting analyses, the past forty or fifty years have seen courts recognize as admissible judicial aids expert testimony as to Nalline tests for narcotics, 17 neutron activation analyses, 18 blood alcohol tests, 19 breathalyzer tests for alcoholic content, 20 voiceprints, 21 electroencephalographs, 22 police artist drawings 23 and infrared spectrometer chromotography. 24 We find it clear that, during the same forty or fifty years, polygraph tests have moved from the 'twilight zone' of Frye to such degree of standing and scientific recognition that unconditional rejection of expert testimony based on polygraph testing is no longer indicated.

CONDITIONS FOR ADMISSION. Withdrawing an unconditional rejection of polygraph evidence does not necessarily mean that polygraph evidence is to have an unconditioned admissibility. We note that those state courts that have admitted polygraph evidence in criminal cases have done so (1) only for impeachment or corroboration, on the question of credibility; (2) where there is a stipulation of prosecutor and defense counsel, and consent of the party involved, to the taking of the test and the admissibility of its results; and (3) with the trial court retaining the right to reject the proffered testimony if not convinced that the examiner is qualified and that the test was conducted under proper conditions. 25 Of the state courts that have provided for the admission of polygraph evidence under certain conditions, we are most impressed with the conditions for admission of polygraph evidence adopted by the Arizona Supreme Court in the Valdez Case. 26 We accept and adopt the Valdez conditions. Henceforth, in Wisconsin, expert opinion evidence as to polygraph tests 27 may be admitted in a criminal case subject to the following conditions.

As to polygraph tests taken by the defendant and expert testimony related thereto, polygraph testimony is admissible in this state, as in Arizona under Valdez, '. . . to corroborate other evidence of a defendant's participation in the crime charged,' and, 'If he takes the stand such evidence is admissible to corroborate or impeach his own testimony.' 28 The required preconditions or qualifications for the admission of such testimony, in this state as in Arizona under Valdez, are as follows:

(1) That the district attoreny, defendant and his council 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. 29

(2) That notwithstanding the stipulation the admissibility of the test results is subject to the discretion of the trial court, 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. 30

(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 court, any other matters deemed pertinent to the inquiry. 31

(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 whether at the time of the examination defendant was 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. 32

As to polygraph tests taken by a complaining or principal witness, as in the case before us, or any other witness in a criminal case, the graphs and expert testimony related thereto are admissible, on the issue of credibility, for corroborative or impeachment purposes, only if the same four qualifications are met: (1) Written stipulation of prosecutor, defense counsel and person taking the test as above required; (2) admission of testimony discretionary with trial court as above provided; (3) opposing party to have right to cross-examine as above noted; and (4) jury to be instructed as provided above. 33 We find no reason or merit for establishing one set of qualifications for admissibility of polygraph testing of a defendant, and another for admissibility of the polygraph testing of a state witness. The required four qualifications for admissibility are, in this state, to be the same for both situations.

APPLICABILITY TO PRESENT CASE. In the case before us, the defendant took two polygraph tests, one given by a sheriff's lieutenant and experienced polygraph examiner of Green Bay, and one given by a police sergeant and experienced polygraph examiner of Wausau. The offer of proof was their testimony as expert examiners that the defendant was truthful in his responses in denying any knowledge or participation in the crime allegedly committed. The complaining witness took two polygraph tests, both given by the same police sergeant of Wausau who had examined the defendant. The offer of proof was his testimony that the complaining witness was not telling the truth in her responses to questions, including her statement that defendant had sexual relations with her on the night of the rape. As to the one test of the defendant and two tests of the complaining witness given by the polygraph examiner of Wausau, the record discloses that the defendant's counsel gave notice to the district attorney that the defendant would submit to such examination by such examiner, and thereupon the district attorney after some discussion had the complaining witness voluntarily submit to polygraph testing by the same examiner.

What the record does not reveal or indicate is whether the testing of both defendant and complaining witness by the same examiner was part of an agreement or stipulation that the tests and the examiner's opinion thereon were to be admitted at trial. The gap is understandable with the Bohner decision blocking the way to such admissibility at the time the trial judge ruled on the offer of proof. We are not here referring to a written stipulation. That procedural safeguard is to be insisted upon in all future cases to avoid otherwise predictable disagreements and...

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