McMorris v. Israel

• Decision Date: 07 May 1981
• Docket Number: Nos. 79-2285,80-1568,s. 79-2285
• Citation: 643 F.2d 458
• Parties: Darrel McMORRIS, Petitioner-Appellant, v. Thomas ISRAEL and Bronson C. LaFollette, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 458

643 F.2d 458

Darrel McMORRIS, Petitioner-Appellant, v. Thomas ISRAEL and Bronson C. LaFollette, Respondents-Appellees.

Nos. 79-2285, 80-1568.

United States Court of Appeals Seventh Circuit.

Argued Sept. 24, 1980.

Decided March 9, 1981.

As Modified on Denial of Rehearing and Rehearing En Banc May 7, 1981.

Charles Bennett Vetzner, Chief, Appellate Div., Wisconsin Public Defender, Madison, Wis., for petitioner-appellant.

Jerome S. Schmidt, Wisconsin Dept. of Wisconsin, Madison, for respondents-appellees.

Before SWYGERT, Circuit Judge, SKELTON, Senior Judge, ^* and CUDAHY, Circuit Judge.

CUDAHY, Circuit Judge.

Appellant McMorris was convicted of strong-armed robbery in Wisconsin state court. He now appeals from the denial of his petition for federal habeas corpus relief. 28 U.S.C. § 2254 (1976). McMorris challenges the Wisconsin procedure for the admission of polygraph evidence and alleges that the exclusion of exculpatory polygraph evidence denied him a fair trial in violation of his rights under the United States Constitution. We reverse and remand for further proceedings.

At petitioner's trial in state court, the prosecution presented only one witness, the victim, who identified the petitioner as the person who had grabbed him from behind, taken his wallet and pushed him to the ground. On cross-examination the victim conceded that it was dark at the time of the attack and that the whole incident was over very quickly. The victim also conceded that he had never seen the defendant before and that he was unable to give a description of his assailant. The petitioner took the stand and denied any involvement in the crime, claiming that the victim was mistaken in his identification of the petitioner as his assailant.

Realizing the importance of credibility in such a case, the petitioner sought to take a polygraph examination prior to trial. Evidence of a polygraph test taken by a defendant is admissible in Wisconsin under the conditions set forth in State v. Stanislawski, 62 Wis.2d 730, 216 N.W.2d 8 (1974). Stanislawski provides that expert opinion evidence as to polygraph tests is admissible with respect to the defendant's credibility when the following preconditions are met:

(1) That the district 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 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.

(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.

(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.

62 Wis.2d at 742-43, 216 N.W.2d at 14 (footnotes omitted). ¹

In order to comply with Stanislawski, trial counsel for the petitioner contacted the prosecutor seeking a Stanislawski stipulation. After some initial indecision, the prosecutor refused to enter into the stipulation but gave no reason for his refusal. The request was renewed shortly before trial but the prosecutor again refused without explanation.

After petitioner was convicted, he filed a post-conviction motion in state court challenging the exclusion of the polygraph testimony. A hearing was held before the trial judge at which evidence was introduced as to a polygraph examination taken by petitioner after he was convicted. The results of the polygraph examination supported petitioner's claim that he had not committed the robbery. The trial court concluded that the polygraph evidence was both reliable and probative, "an important piece of evidence for the jury to consider and weigh in arriving at its verdict" in light of the evidence received at trial. The trial court reluctantly denied any relief, however, on the basis of Wisconsin law governing the admission of polygraph evidence. The Wisconsin Supreme Court affirmed in an unpublished per curiam opinion. ²

The defendant then filed for habeas corpus relief in federal court. The district court denied relief because it found that the Wisconsin stipulation requirement did not deny the defendant due process of law. A motion for reconsideration was also denied and the petitioner now appeals from these rulings.

I. The Constraints Imposed by the Due Process Clause

Every state is generally free to exercise its sovereign prerogative as to the evidence it will admit in its courts. The federal constitution, however, imposes a limited restraint upon state evidentiary rules where exculpatory evidence is excluded by arbitrary state rules. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). The genesis of this restriction is found in the defendant's sixth amendment right to "compulsory process for obtaining witnesses in his favor." ³ The Constitution imposes this limitation because the state may not deny an accused in a criminal trial the right to a fair opportunity to defend against the state's accusations. Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973). However, "the right of a defendant to present relevant and competent evidence is not absolute and many 'bow to accommodate other legitimate interests in the criminal trial process,' " Hughes v. Mathews, 576 F.2d 1250, 1258 (7th Cir.), cert. dismissed, 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1978) (citing Chambers, 410 U.S. at 295, 93 S.Ct. at 1045), although the competing state interests must be substantial to overcome the claims of the defendant. ⁴ Our task is thus to evaluate the exculpatory significance of the proffered polygraph evidence ⁵ and then to balance it against the competing state interest in the procedural rules that prevented the defendant from presenting this evidence at his trial. Government of the Virgin Islands v. Smith, 615 F.2d 964, 972 n.10 (3d Cir. 1980). Petitioner challenges both the stipulation requirement in general and the refusal of the prosecutor to enter into the stipulation offered in this case. We shall review separately the state justifications both for the existence of the stipulation requirement and for the prosecutor's refusal to enter into the stipulation proffered here. ⁶

A. The Exculpatory Significance of the Defendant's Polygraph Evidence

It seems obvious that evidence of a favorable polygraph examination taken by the defendant would have been of great importance to the defense of the Wisconsin charge. The entire prosecution case rested on the testimony of the victim as to the identity of his assailant. Given the problems inherent in such an identification, see O'Connor, "That's the Man": A Sobering Study of Eyewitness Identification and the Polygraph, 49 St. John's L.Rev. 1, 26-27 (1974), particularly an identification based upon a short observation in the dark while being knocked to the ground, the state's case was far from overwhelming. The defendant took the stand and denied any involvement in the crime. His credibility was the primary issue before the jury, and the jury's verdict reflects its decision not to credit his testimony. Under these circumstances, a polygraph examination that bolstered the defendant's credibility might easily have been decisive in securing an acquittal. Although we do not wish to become embroiled in a "numbers game", we note that even the most ardent detractors from the validity of polygraph evidence concede a degree of reliability of 70% or higher for properly administered examinations. ⁷ Further, a large portion of this 30% "error" rate includes tests that yield inconclusive results results that cannot fairly be described as "erroneous." ⁸ Where credibility is as critical as in the instant case, the circumstances are such as to make the polygraph evidence materially exculpatory within the meaning of the Constitution. See Westen, Compulsory Process II, 74 U.Mich.L.Rev. 191, 197 (1975).

II. The Available State Justifications for Stanislawski

State and federal evidentiary rules excluding polygraph evidence have usually justified that exclusion by reference to two problems with polygraph evidence. Courts have been concerned with the reliability of the evidence itself as well as with the potential that juries may improperly regard polygraph evidence as infallible. ⁹ United States v. Alexander, 526 F.2d 161, 168 (8th Cir. 1975). Wisconsin, however, has adopted the seemingly commendable position that its evidentiary rules should not be tied to the conditions of another era when circumstances differed markedly from the present. Since their initial historic rejection in Frye v. United States, 293 F. 1013 (D.C.Cir.1923),

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 testimony is no longer indicated.

Stanislawski, 62 Wis.2d 730, 741, 216 N.W.2d 8, 13 (1974). ¹⁰ We agree with the Wisconsin Supreme Court's assessment. Scientific developments...