dissenting.
In State v. Thompson, 30 Or App 379, 567 P2d 132, rev den (1977), we held that certain statements made by a criminal defendant to a polygraph examiner during a pretest interview were inadmissible. In doing so, however, we were at pains to limit our holding to "* * * statements obtained under the circumstances shown in this case.” Id., at 383. Today the majority applies Thompson to a case far different. I wouldn’t.
In criminal trials, the difficulty with polygraph evidence stems from two sources.
First: When an accused makes statements or responds to questions while connected to the machine the operator makes a conclusion that his answers are deceptive, not deceptive (i.c., truthful) or that neither conclusion can be made. Courts have generally been reluctant to admit the results of the examination because of reliability and policy considerations. Consequently, the test results have been admissible only if both sides so stipulate.
The second source of difficulty is in the instance where the results of a polygraph are not admitted but the polygraph is mentioned at trial. The jury, from the mention of the polygraph, may infer the defendant is guilty because he refused to submit to the test and prove his innocence.
These are the only two problems that relate to a polygraph examination, and neither problem arose in this case; The results of the examination were not put in evidence and polygraph was not mentioned in the trial.
*615In my view, the key to State v. Thompson, supra. was the fact that the entire polygraph examination was conducted under a protective order which would have limited disclosure of the results of the test itself to defense counsel. The examiner was, in effect, made a part of the defense team. To permit him to testify under such circumstances, we said, "smacks of deception.” Ibid. So it did. Here, by contrast, defendant knew the examination results could potentially be used in court. The examiner was not part of his team.
The majority acknowledges this distinction but nonetheless rules defendant’s statements inadmissible, due to a "fatal ambiguity” in the stipulation concerning the polygraph examination entered into by defendant. The stipulation provided that "neither side will mention the polygraph examination during trial.” This stipulation, the majority says, could have been misunderstood by defendant to mean not only that there would be no mention of the fact of the examination but also that there would be no mention of anything said during the examination.
The difficulty with the majority’s analysis to this point is that what was said by defendant in this case was salá prior to the actual administration of the test, but the majority solves this problem by in effect redefining "polygraph examination” in the stipulation to mean "anything that occurs from the moment defendant enters the room to take the examination until the moment defendant leaves that room.” This redefinition is accomplished by quoting the polygraph examiner to that effect.
We should not use police officer testimony to create legally-binding definitions of procedures where the officer’s testimony was not directed toward that end. As I read it, the officer’s statement is directed to another consideration — like any professional, he recognizes that the circumstances surrounding the giving of a test can affect the validity of the test result. He therefore sees his entire course of contact with the *616defendant as pertinent to achieving his goal, viz., a valid test result. To turn his statement into a legal definition which results in the suppression of statements made by defendant before the test was administered and after full advice of rights is an unfortunate misapplication of his testimony.
The only other string to the majority’s bow is defendant’s own testimony — which the majority calls "unclear” — concerning his understanding as to whether statements he made prior to the actual administration of the test would be admissible.
I do not find defendant’s statements unclear. To me, he is saying only that he believed that statements made by him he was actually answering questions while connected to the polygraph machine would not be admissible. But, assuming the majority to be correct in their reading of his testimony, I would still hold that the statements are admissible because the trial court — assuming it understood defendant to say what the majority says he said — found against the defendant on the issue of voluntariness. This necessary means the trial judge made a credibility finding against defendant. Such a finding should bind us. State v. Warner, 30 Or App 117, 566 P2d 546 (1977); State v. Ward, 37 Or App 591, 600, n 1, 588 P2d 72 (1978) (dissenting opinion), adopted on rehearing 38 Or App 425, 590 P2d 296, rev allowed, 287 Or 123 (1979) .1
I dissent.
The majority reads the trial judge’s comments otherwise. (42 Or App 607, 612-613, n. 3). Even ignoring (as we may not) the salutory rule that it is what a judge puts in his written order, not something he may have said from the bench, that counts, see, e.g., State v. Swain/Goldmsith, 267 Or 527, 517 P2d 684 (1974), I could not reach the conclusion the majority reaches here. The majority appears to assume that this veteran trial judge held that this defendant’s statements were admissible even though not voluntarily made. I decline to assume that, after an opportunity for reflection prior to entering his written order, the trial judge would act upon that basis.