State v. Dean, No. 79-1257-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtABRAHAMSON; DAY
Citation103 Wis.2d 228,307 N.W.2d 628
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Arvid E. DEAN, Defendant-Appellant.
Docket NumberNo. 79-1257-CR

Page 628

307 N.W.2d 628
103 Wis.2d 228
STATE of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
Arvid E. DEAN, Defendant-Appellant.
No. 79-1257-CR.
Supreme Court of Wisconsin.
Argued May 1, 1981.
Decided July 6, 1981.

Page 629

Thomas J. Balistreri, Asst. Atty. Gen. (argued), for petitioner; Bronson C. La Follette, Atty. Gen., on brief.

Glenn L. Cushing, Asst. State Public Defender, for defendant-appellant.

ABRAHAMSON, Justice.

This is a review of a decision of the court of appeals, State v. Dean, 98 Wis.2d 74, 295 N.W.2d 23 (Ct.App.1980), which reversed the judgment of conviction of the circuit court for Walworth county, John J. Byrnes, Circuit Judge.

The issue in this case is whether polygraph evidence unfavorable to the Dean is admissible over defense counsel's[103 Wis.2d 229] objection that the stipulation required pursuant to State v. Stanislawski, 62 Wis.2d 730, 216 N.W.2d 8 (1974), was executed by Dean after he was charged with the offense but before he was represented by counsel. The circuit court admitted the polygraph evidence. The court of appeals held that the polygraph evidence was inadmissible and reversed the conviction. We affirm the decision of the court of appeals.

Our discussion begins with a consideration of the facts of this case and the issue presented. Because we view this case as an occasion to consider whether we should continue to admit polygraph evidence, we then summarize the theory and operative techniques of the polygraph and review the development of the Wisconsin law on the admissibility of polygraph evidence in the courts of this state, examining the pre-Stanislawski, Stanislawski and post-Stanislawski cases. After assessing judicial experiences with the Stanislawski rule and with polygraph evidence in this and other jurisdictions, we conclude that the Stanislawski rule does not function in a manner which enhances the reliability of polygraph evidence and protects the integrity of the trial to the degree necessary to justify its continuance. For the reasons we set forth, we hold that hereafter polygraph evidence is not to be admitted in any criminal proceeding in this state unless the Stanislawski stipulation was executed on or before September 1, 1981.

I.

The pertinent facts in the case at bar are not disputed. On June 27, 1978, a complaint was filed charging Arvid Dean with failure to remain at the scene of an accident resulting in injury, in violation of secs. 346.67(1) and 346.74(5), Stats. 1979-80. On July 5, 1978, Dean executed[103 Wis.2d 230] a Stanislawski stipulation. The following day, at his initial appearance, Dean indicated that he was willing at that time to proceed without counsel. The circuit court indicated on the record that it understood that Dean had agreed to take a polygraph.

On August 1, 1978, examiner Robert Peters administered a polygraph test to Dean at the New Berlin regional crime laboratory. Before taking the polygraph, Dean signed a polygraph examination statement of consent in which he stated that he understood his Miranda rights, that he did not wish to consult with an attorney, that he knew that he could not be required to take the test without his consent and that he consented to the polygraph examination. The examiner interpreted the results of the test as indicating deception on the relevant questions which the Dean was asked about the offense.

Counsel was then appointed for Dean at his request. On April 3, 1979, before trial commenced, the district attorney brought a motion to admit the evidence of the test results. Defense counsel objected on the ground that Dean signed the stipulation without benefit of counsel. A hearing was held on the motion. Dean stated that he had been told that he could withdraw his consent to the admission of the

Page 630

results within sixty days of the taking of the test. The district attorney disputed this assertion. At this hearing neither the circuit court, the prosecutor, nor defense counsel conducted any inquiry nor introduced any evidence on the reliability of the polygraph as a method for identifying deception or on the conditions under which the polygraph examination was taken, the actual test procedure, the qualifications and competence of the examiner or the method of interpretation of test results. The circuit court granted the state's motion to admit the polygraph evidence stating that Dean had waived his right to counsel, had signed the agreement and that he should not be permitted to renege on the agreement because he was unhappy with the results. [103 Wis.2d 231] The polygraph evidence was admitted as part of the state's case in chief. Dean was convicted on a trial to the jury.

Dean appealed contending that entering into a Stanislawski stipulation is a tactical decision for defense counsel and that a defendant cannot voluntarily and intelligently execute the stipulation without advice of or waiver of counsel or appropriate admonitions by the trial court. Dean distinguishes a polygraph examination stipulated to by the defendant from oral custodial interrogation to which the defendant, without benefit of counsel, submits after receiving the Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The court of appeals based its decision on an interpretation of State v. Craft, 93 Wis.2d 55, 286 N.W.2d 619 (Ct.App.1979), aff'd on other grounds 99 Wis.2d 128, 298 N.W.2d 530 (1980). The court of appeals held that a defendant may execute a valid polygraph stipulation if the defendant has waived the right to counsel for purposes of the execution of the polygraph stipulation. The validity of a defendant's waiver of right to counsel for this purpose, the court of appeals held, is governed by the same rules which determine the validity of a defendant's waiver of right to counsel for the trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Pickens v. State, 96 Wis.2d 549, 292 N.W.2d 601 (1980). Thus the court of appeals held that before an unrepresented defendant can enter into a valid Stanislawski stipulation, a Faretta hearing must be held to determine if the waiver of counsel is made knowingly and voluntarily. 1 The defendant must also be informed that the reliability of polygraph evidence is suspect, and that the polygraph evidence is inadmissible absent a stipulation. Dean, supra, 98 Wis.2d at 79-80, 295 N.W.2d 23. No such hearing was held by the circuit court [103 Wis.2d 232] in the Dean case. The court of appeals concluded that the polygraph evidence should not have been admitted and reversed the conviction.

In reaching this result the court of appeals considered and rejected other alternatives proposed by the parties. The state suggested determining the validity of the stipulation by applying the rules governing the admissibility of statements resulting from custodial interrogation. The complexity of the evidentiary questions relating to the polygraph, however, distinguishes a defendant's decision to execute a stipulation from the defendant's decision to speak with police after receiving the Miranda warnings. Dean proposed a per se rule prohibiting unrepresented defendants from entering into a valid Stanislawski stipulation. The complexity of the polygraph procedure and the difficulty in attacking the testimony militate to some extent in favor of the per se rule. Adoption of a per se rule would raise the question of whether a defendant's sixth amendment right to proceed without counsel had been impaired. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This court's choice of alternative solutions to the issue Dean presents is largely dependent upon the court's view of the nature of the polygraph evidence and of the effectiveness of the conditions set forth in Stanislawski. Consequently we take this occasion to reexamine the nature of the polygraph evidence and the Stanislawski decision allowing the admission of polygraph evidence upon stipulation

Page 631

of the parties and upon the other conditions set forth in the decision. This examination is timely in our view since we have now accumulated over seven years' experience with the Stanislawski rule. In sum, we deem it appropriate, in considering the issue posed in this case, to consider first whether we should continue to admit polygraph evidence on the basis of Stanislawski.

[103 Wis.2d 233] Our reexamination of Stanislawski at this time is aided by the fact that in several of the cases which have come before this court raising questions about admissibility of polygraph evidence, counsel have addressed the question of whether Stanislawski should be overruled. At oral argument in this case, and in oral argument in previous cases, the attorney general's office has taken the position that Stanislawski should be overruled. At oral argument in the case at bar defense counsel, a staff member of the Office of State Public Defender, stated that the Office was taking no position on Stanislawski as such. Defense counsel noted, however, that in this particular case, his client's conviction should be reversed whether or not the court overruled the Stanislawski case.

Our principal concern in undertaking this inquiry is to determine whether the Stanislawski rule has provided a means by which the trial courts can fairly regulate the admission of polygraph evidence while maintaining a workable standard for the reliability of this evidence. If the Stanislawski rule has not been successful in this regard we see no reason to prolong its existence much less to add an additional procedure as may be required by the facts in this case.

Our inquiry in this case requires some discussion of the standards for admitting scientific evidence and of the scientific reliability of the polygraph. We do not however treat this case as the occasion to examine the Frye v. United States, 293 F. 1013 (D.C.Cir.1923), standard for admissibility of scientific evidence or the...

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85 practice notes
  • People v. Baynes, No. 54082
    • United States
    • Supreme Court of Illinois
    • December 4, 1981
    ...State (Tex.Crim.App.1977), 550 S.W.2d 54, 59; Jones v. Commonwealth (1974), 214 Va. 723, 725, 204 S.E.2d 247, 248; State v. Dean (1981), 103 Wis.2d 228, 307 N.W.2d 628.) The courts reason that if the rationale for exclusion is the inaccuracy of the test, it does not gain accuracy by a mere ......
  • State v. Kandutsch, No. 2009AP1351–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 19, 2011
    ...polygraph technology for certain purposes but the results of a polygraph test are not ordinarily admissible in court. See State v. Dean, 103 Wis.2d 228, 279, 307 N.W.2d 628 (1981). Statutes allowing use of a polygraph test for certain purposes, including the supervision of certain offenders......
  • State v. Brown
    • United States
    • Supreme Court of Oregon
    • July 10, 1984
    ...Romero v. State, 493 S.W.2d 206, 211 (Tex.Cr.App.1973); Commonwealth v. Pfender, 280 Pa.Super. 417, 421 A.2d 791 (1980); State v. Dean, 103 Wis.2d 228, 307 N.W.2d 628 36 The court has recently excluded reference to polygraph evidence offered to rehabilitate witnesses in criminal cases. Stat......
  • Wynn v. State, 7 Div. 946
    • United States
    • Alabama Court of Criminal Appeals
    • August 24, 1982
    ...question how a stipulation can alter the law so as to make unreliable evidence trustworthy and admissible. See, e.g., State v. Dean, 103 Wis.2d 228, 307 N.W.2d 628 (1981); Tarlow, Admissibility of Polygraph Evidence in 1975: An Aid in Determining Credibility in a Perjury-Plagued System, 26 ......
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85 cases
  • State v. Kandutsch, No. 2009AP1351–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 19, 2011
    ...polygraph technology for certain purposes but the results of a polygraph test are not ordinarily admissible in court. See State v. Dean, 103 Wis.2d 228, 279, 307 N.W.2d 628 (1981). Statutes allowing use of a polygraph test for certain purposes, including the supervision of certain offenders......
  • State v. Miller
    • United States
    • Supreme Court of Connecticut
    • March 10, 1987
    ...486, 495, 495 A.2d 569 (1985); Sabag [202 Conn. 486] v. Page 261 Continental South Dakota, 374 N.W.2d 349, 352 (S.D.1985); State v. Dean, 103 Wis.2d 228, 263-80, 307 N.W.2d 628 (1981); see C. McCormick, Evidence (3d Ed.) § 206, pp. 628-29 n. "The questionable accuracy of polygraph examinati......
  • Lee v. Martinez, No. 27,915.
    • United States
    • New Mexico Supreme Court of New Mexico
    • July 14, 2004
    ...v. Commonwealth, [231 Va. 142] 341 S.E.2d 159 (Va.1986); State v. Beard, [194 W.Va. 740] 461 S.E.2d 486 (W.Va.1995); State v. Dean, [103 Wis.2d 228] 307 N.W.[2d]628 (Wis.1981), declined to follow on other grounds by State v. Davis, [254 Wis.2d 1] 645 N.W.2d 913 (Wis.2002); Contee v. United ......
  • State v. Walstad, No. 82-1864-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • September 4, 1984
    ...period prevents any very large quantities of food substances or cigarette smoke, that kind of thing being present." 12 State v. Dean, 103 Wis.2d 228, 307 N.W.2d 628 (1981), overruled Stanislawski. While Frye was cited, probably because it was referred to in the Stanislawski dicta, Dean expr......
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