State v. Lyon

• Decision Date: 13 October 1987
• Citation: 744 P.2d 231,304 Or. 221
• Parties: STATE of Oregon, Respondent on Review, v. Howard E. LYON, Petitioner on Review. TC 23-853; CA A35195; SC S33792.
• Court: Oregon Supreme Court

Page 231

744 P.2d 231

304 Or. 221

STATE of Oregon, Respondent on Review, v. Howard E. LYON, Petitioner on Review.

TC 23-853; CA A35195; SC S33792.

Supreme Court of Oregon,

In Banc.

Argued and Submitted June 2, 1987.

Decided Oct. 13, 1987.

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the petition was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on a supplemental memorandum were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

CAMPBELL, Justice.

In State v. Brown, 297 Or. 404, 445, 687 P.2d 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, 687 P.2d 751. 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 P.2d 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, 733 P.2d 41. 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 P.2d 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 So.2d 294, 299 (Ala.Crim.App.1982). Accord, e.g., Alexander v. State, 449 N.E.2d 1068 (Ind.1983); State v. Marti, 290 N.W.2d 570 (Iowa 1980); State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976); State v. Renfro, 96 Wash.2d 902, 639 P.2d 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 P.2d 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 P.2d 894 (1962). In Valdez, the defendant, his counsel and the county attorney had entered into a written stipulation to the admissiblity 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, 371 P.2d at 903.

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, 371 P.2d at 903-04. 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 730, 216 N.W.2d 8 (1974), overruled in State v. Dean, 103 Wis.2d 228, 307 N.W.2d 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 N.C. 628, 300 S.E.2d 351 (1983), overruling State v. Milano, 297 N.C. 485, 256 S.E.2d 154 (1979); State v. Dean, 103 Wis.2d 228, 307 N.W.2d 628 (1981), overruling State v. Stanislawski, 62 Wis.2d 730, 216 N.W.2d 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 N.M. 184, 539 P.2d 204 (1975), overruling State v. Lucero, 86 N.M. 686, 526 P.2d 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 P.2d 474 (Alaska 1970); Fulton v. State, 541 P.2d 871 (Okla.Crim.App.1975); Romero v. State, 493 S.W.2d 206 (Tex.Crim.App.1973); (2) that juries are likely to be unduly persuaded by the polygraph...