Prior to the trial of this case, the defendant, the appellant herein, his counsel, and the prosecuting attorney stipulated as follows:
"It is hereby mutually agreed by and between the Defendant Herbert Lee Hill, alias L. C. Barnes, alias Karl K. Lorenz and his Counsel of Record and the Prosecuting Attorney of Montgomery County, Ohio, that the Defendant shall submit to a polygraph (lie detector) examination to be given on the 20th day of February, 1962, by Examiner Det. Jack Reay, of the Dayton Police Department, who is admitted by this Agreement of Stipulation to be a qualified Examiner, for the purpose of determining, in the Examiner's opinion, whether or not the Defendant did on or about the 30th day of June, 1962 commit the offense of Forgery.
"It is further agreed and stipulated that the results of the polygraph examination, in the form of an opinion by the Examiner, may be offered in evidence on behalf of the Defendant or on behalf of the State. In presenting his opinion, the Examiner may exhibit and explain to the Court and jury the various recordings obtained as part of the test procedure. He may also describe the instrument used, explain the nature of the test, and state the reasons which form the basis for his opinion that the defendant is or is not telling the truth about the offense.
"If the test results and the Examiner's opinion are offered as evidence by either party to this agreement and stipulation, the opposing party shall have the right to cross-examine the Examiner with respect to the manner in which he conducted the test, his own training and experience, and also regarding the polygraph techniques, and its limitations.
"If trial by jury, the Court shall be requested to instruct the jury regarding the terms of this agreement and stipulation. Also the Court shall be requested to instruct the jury that they should not except the test results and the Examiner's opinion as conclusive of the issue before them, but they are privileged to consider the results and the Examiner's opinion along with all the other evidence in the case *Page 26 and to give the polygraph evidence whatever weight and effect they think it reasonably deserves.
"In consenting to the polygraph examination, the Defendant by his signature below states that he has read this Agreement of Stipulation, that he has consulted with his Counsel of Record concerning the contents thereof and further that he knows and understands that he is under no legal compulsion to take this examination but does so freely and voluntarily. Agreed and stipulated this 7th day of February, 1962.
"/S/ Herbert L. Hill Defendant /S/ Theodore M. Arnovitz Attorney for Defendant
"Paul R. Young Prosecuting Attorney By /S/ Keith A. Saeks Assistant"
Pursuant to the agreement, the defendant submitted to a polygraph examination.
At the trial, the stipulation, as well as testimony relating to the polygraph examination and the results thereof, was admitted into evidence over the objection of defense counsel.
The sole issue presented in this appeal is whether the trial court committed prejudicial error in admitting into evidence the results of a polygraph examination, which had been stipulated by the defendant and his counsel as being admissible at the trial.
The first reported case in the United States involving the admissibility of lie-detector evidence was Frye v. UnitedStates (D.C. Cir. 1923), 293 F. 1013, 34 A. L. R. 145.
In upholding the trial court's refusal to admit the results of a deception test, the court, in the Frye case, made the following observation at 1014:
"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and *Page 27 while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
"We think 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."
Although the scientific reliability of polygraphic interrogation has increased substantially since the Frye case was decided, in 1923, the judicial attitude toward the admissibility of lie-detector evidence, in the absence of a stipulation or agreement by the parties, has experienced no perceivable change since that time. Without noticeable exception, the prevailing authorities have been consistent in refusing to admit into evidence, directly or indirectly, the results of a lie-detector test. 23 A. L. R. 2d 1308. See, also,State v. Smith, 113 Ohio App. 461; Parker v. Friendt, 99 Ohio App. 329.
In more recent years, however, some courts have refused to apply the rule where the parties themselves have stipulated that the results of a polygraph examination shall be admitted into evidence.
In the case of People v. Houser, 85 Cal. App. 2d 686,193 P.2d 937, the court admitted lie-detector evidence pursuant to a written stipulation. In that case, at page 695,193 P.2d at 942, the court said:
"It would be difficult to hold that defendant should now be permitted on this appeal to take advantage of any claim that such operator was not an expert and that as to the results of the test such evidence was inadmissible, merely because it happened to indicate that he was not telling the truth * * *."
In the case of State v. McNamara, 252 Iowa 19,104 N.W.2d 568, the Supreme Court of Iowa, in affirming a second degree murder conviction, held that lie-detector evidence *Page 28 was admissible pursuant to agreement. Headnote 10 of104 N.W.2d 568, states:
"Where, after negotiations between defendant's counsel and county attorney, defendant in writing agreed to submit to a polygraph or lie detector test and agreed that examiner could testify in court as to result of test, the lie detector test evidence was admissible in homicide prosecution against defendant."
The Supreme Court of Arizona reached a similar conclusion in the case of State v. Valdez, 91 Ariz. 274, 371 P.2d 894, where the court said, at 283, 371 P.2d at 900:
"* * * subject to the qualifications announced herein, we hold that polygraphs and expert testimony relating thereto are admissible upon stipulation in Arizona criminal cases."
In addition to the express holdings of the aforementioned authorities, lie-detector evidence by stipulation has been sanctioned by implication in the following cases: Parker v.Friendt, 99 Ohio App. 329; State v. Lowry, 163 Kan. 622,185 P.2d 147; State v. Armvine, 67 N. J. Super. 483, 171 A.2d 124;Colbert v. Commonwealth, 306 S.W.2d 825, 71 A. L. R. 2d 442;Commonwealth v. McKinley, 181 Pa. Super 610, 123 A.2d 735.
The cases are not unanimous, however, in holding that lie-detector evidence is admissible pursuant to stipulation. See LeFevere v. State, 242 Wis. 416, 8 N.W.2d 288;Stone v. Earp, 331 Mich. 606, 50 N.W.2d 172; State v.Trimble, 68 N. M. 406, 362 P.2d 788.
Apparently, no appellate court in Ohio has decided the question presented in this case, but, unlike the majority of this court, I fail to observe how any fundamental right of the defendant was invaded by honoring his voluntary stipulation.
In weighing the merits of any scientific evidence, infallibility is obviously not the test of admissibility. Were it otherwise, those responsible for determining factual questions in many criminal trials would be relegated to a completely vacuous position.
In its present stage of development, the margin of *Page 29 proven error in the use of the lie-detector is five per cent or less. This being so, it is difficult to envision rightfully accused criminal defendants clamoring to submit to an examination or to have the results of such an examination admitted into evidence. On the other hand, it would be extremely harsh to deny a wrongfully accused criminal defendant any reasonable means of proclaiming his innocence. Parenthetically, it is interesting to note at this juncture that in the classicFrye case, supra, where evidence of truthfulness was excluded, an innocent person was convicted of second degree murder.
Undoubtedly, the most challenging of all arguments in favor of admitting lie-detector evidence is that invoked on behalf of an accused demanding such evidence to prove his innocence, and this argument becomes even more compelling when weighed against the mere theoretical possibility that the absence of any lie-detector evidence at the trial of some future case might give rise to an unjustifiable inference of guilt. The majority opinion expresses particular concern over "the possibility that one who is innocent might react as one guilty because of fear." However, until some perfect method of determining guilt or innocence, and truth or deception is devised, the law must, of necessity, deal with probabilities rather than possibilities. And in any event, the polygraph examiner is subject to cross-examination concerning the possibilities incident to the use of the lie detector.
In the three aforementioned cases, which hold that polygraph evidence is not admissible pursuant to stipulation, the courts relied exclusively upon the rule of the Frye case, and in so doing appear to have accorded to that rule greater and more lasting veneration than the language of the opinion in the case indicates was expected or anticipated. Based upon present standards of reliability, we should not share the reluctance of those courts to admit such evidence where the defendant, in the exercise of his own judgment, requests the examination and agrees that the results thereof may be admitted as evidence. In this regard, it is significant, perhaps, that defendants in criminal *Page 30 cases are commonly permitted to waive certain rights which are more fundamental, more specifically guaranteed, and more jealously guarded by law than any rule of evidence.
Accordingly, and subject to the following qualifications, polygraph evidence should, in my opinion, be admissible by stipulation in criminal cases:
(1) if the evidence is admitted pursuant to a written stipulation signed by the prosecuting attorney and by both the defendant and defendant's counsel;
(2) if the stipulation contains a specific agreement upon the party or parties who will conduct the examination; and
(3) if the trial court, in the exercise of its discretion, is satisfied with the qualifications of the party or parties who conducted the examination.
These requirements were met in the present case. For this reason, therefore, the judgment was properly affirmed.