specially concurring.
I concur in the majority’s holding that the trial court committed reversible error when it permitted Stephenson to testify to the hearsay statements that defendant’s father made. I disagree with the majority, however, with respect to the evidence of defendant’s pre-arrest polygraph examination. The trial court should have granted defendant’s motion to suppress that evidence.
Defendant argues that polygraph evidence should never be admissible, even if a defendant stipulates to its admissibility. In the alternative, he argues that polygraph evidence should not be admissible here, because he had stipulated to its admissibility before he was charged and without the advice of counsel. Although on retrial defendant may also assert constitutional bases for his motion to suppress, he presently urges no constitutional positions, but asks that we adopt his arguments as interpretations of OEC 403 and OEC 702.
In State v. Brown, 297 Or 404, 687 P2d 751 (1984), the Supreme Court discussed in detail polygraphs and the use of polygraph evidence. It concluded that there was a serious risk of “misuse and overvaluation” of polygraph evidence by juries which “far outweighed” any probative value it might have. 297 Or at 441, 442. Accordingly, it held that polygraph evidence was not generally admissible under the Oregon Evidence Code. See OEC 401, 403 and 702. The court, however, explicitly left open the question of the admissibility of polygraph evidence by stipulation. 297 Or at 445 n 35.
In State v. Bennett, 17 Or App 197, 521 P2d 31 (1974), *604we upheld a conviction based in part on stipulated polygraph evidence.
“Since the challenged testimony was introduced pursuant to the written stipulation * * * we decline to consider the question of its admissibility. The defendant cannot * * * challenge testimony the receipt of which was stipulated to by him at the trial. The effect of such a stipulation is an express waiver of any objection. It is not simply a failure to object. To allow a litigant to challenge evidence received pursuant to such a written stipulation would in reality be tantamount to a finding of incompetence of counsel. No such claim is here articulated by defendant. Furthermore, the trial judge, in denying the motion said:
“ ‘* * * I am satisfied that the stipulation was properly entered into by the State and by the defense and the defendant being represented by competent counsel, and consequently, the polygraph is appropriately received into evidence. I heard all of the testimony and the evidence in this case.’ (Emphasis supplied.)” 17 Or App at 200.
See also State v. Bass, 76 Or App 396, 708 P2d 1207 (1985). The question of whether an uncounseled, uncharged suspect can validly stipulate before trial to the admission of polygraph evidence, however, is one of first impression in Oregon.1
A number of courts have held that polygraph evidence is never admissible. That position was explained by the Illinois Supreme Court:
“Polygraph evidence is not reliable enough to be admitted. The prejudicial effects substantially outweigh the probative value of admitting such testimony. As such ‘usefulness to the court and jury * * * remains the same, regardless if they are admitted by stipulation or not.’ (People v. Zazzetta (1963), 27 Ill 2d 302, 308, 189 NE2d 260.) There is nothing to show that jurors are better able to evaluate the testimony of polygraph examiners where both parties have stipulated that their testimony be heard.” People v. Baynes, 88 Ill 2d 225, 244, 430 NE2d 1070 (1982).
Similarly, the Maryland Court of Appeals noted:
“As we see it, the crucial issue is whether, as a matter of law, this type of evidence is sufficiently reliable or trustworthy. It *605cannot logically be argued that a stipulation enhances in any significant way the inherent reliability of evidence produced by a so-called scientific process or art. See, e.g., Pulakis v. State, 476 P2d 474, 479 (Alaska 1970). Even proponents of the use of polygraph evidence admit that a stipulation does not increase reliability.* * * Thus, while we are generally reluctant to invalidate agreements entered into by the parties, we view this as one of the unusual occasions when we are obligated to do so.” Akonom v. State, 40 Md App 676, 680, 394 A2d 1213 (1978).
See also State v. Dean, 103 Wis 2d 228, 307 NW2d 628 (1981); State v. Corbin, 285 So 2d 234 (La 1973); People v. Liddell, 63 Mich App 491, 234 NW2d 669 (1975).
A different position is found in State v. Valdez, 91 Ariz 274, 371 P2d 894 (1962), to which the Oregon Supreme Court referred as the “leading case on stipulations for the admission of polygraph evidence.” State v. Brown, supra, 297 Or at 445 n 35. The Arizona Supreme Court held that polygraph evidence is admissible pursuant to a stipulation under certain conditions:
“(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 *606which 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” 91 Ariz at 283. (Emphasis supplied.)
A number of courts have followed Valdez and have allowed polygraph evidence by stipulation when procedural safeguards, including the advice of counsel, are present. State v. Renfro, 96 Wash 2d 902, 639 P2d 737, cert den 459 US 842 (1982); Corbett v. State, 94 Nev 643, 584 P2d 704 (1978) (admissible when stipulation entered “freely and voluntarily, with the assistance of adequate counsel”); see also State v. Galloway, 167 NW2d 89 (Iowa 1969); State v. McDavitt, 62 NJ 36, 297 A2d 849 (1972).
I believe that we should follow State v. Valdez, supra, at least to the extent that it requires a defendant (or suspect) and his counsel to sign a stipulation for the admission of polygraph evidence. The problems with polygraph evidence are persuasively set forth in State v. Brown, supra. In State v. Bennett, supra, we stressed the importance of counsel’s role in a defendant’s valid stipulation to the admission of polygraph evidence. We should hold that counsel’s advice is not only important; it is necessary. Most suspects cannot adequately evaluate the risks inherent in polygraph evidence without counsel’s advice. Moreover, a contrary rule would likely defeat the goal of the Supreme Court, expressed in Brown, to keep polygraphs from becoming a regular feature of Oregon proceedings. Polygraph evidence is not generally admissible in Oregon, and we should not recognize an exception in the absence of a written stipulation signed by the defendant, his counsel and the prosecuting attorney.
The majority states that “[t]he trial court found that defendant knowingly and voluntarily” signed the stipulation. 83 Or App at 600. The record does not contain such an express finding. Even if the court’s discussion and ruling could be deemed the equivalent of such a finding, the court did not fully examine whether defendant understood the complexities and uncertainties involved in evaluating polygraph evidence. In State v. Brown, supra, the Supreme Court took almost 40 pages to conclude that “after carefully evaluating evidence and arguments for and against the introduction of polygraph *607evidence within the context of OEC 401, 702 and 403, we conclude that the probative value of polygraph evidence is far outweighed by reasons for its exclusion.” 297 Or at 442. The court stated:
“We conclude no judgment of polygraph testing’s validity or potential rate of error can be established based on available scientific evidence. The polygraph test is, in reality, a very complex process that involves much more than the instrument or the polygram. Although the instrument is essentially the same for all applications, the types of individuals tested, the training of the examiner, the purpose of the test, the type of test utilized, the questions asked, among many other factors, can differ substantially. In spite of all these variables in polygraph testing, the polygraph experts persist in telling the trier of fact, as they did in this case, that polygraph tests are virtually infallible.” 297 Or at 433. (Footnote omitted.)
Contrary to the majority’s suggestion, a defendant’s uncounseled stipulation to the admissibility of polygraph evidence cannot be equated with other actions that a defendant may take without the advice of counsel. A defendant who waives his right to trial by jury is not accepting an unreliable fact finder. A voluntary confession obtained by the interrogation of a suspect who has waived his right to counsel is not likely, in most cases, to be unreliable. In neither case is the evaluation of the validity and reliability of the evidence that is obtained as complex and difficult as in the case of polygraph evidence.
To stipulate knowingly and voluntarily that the results of a polygraph test are admissible, a defendant should be aware of the existence and importance of the variables that affect the reliability and validity of the results, be able to assess the effect which the evidence is likely to have on a jury and be able to weigh that effect against the possibility of error and ambiguity inherent in polygraph evidence. In short, to stipulate knowingly and voluntarily, a defendant should make an evaluation of the polygraph process similar to that which State v. Brown, supra, bans trial courts from making in the absence of a stipulation. Only the most exceptional defendant could knowingly and voluntarily make such an assessment without the advice of counsel. Certainly nothing in this record indicates that defendant had the requisite understanding or that the court determined that he did.
*608In State v. Brown, supra, the Supreme Court, exercising its supervisory power, decided that, in the absence of a stipulation, trial courts do not have discretion to admit polygraph evidence. To determine if a defendant stipulated knowingly and voluntarily, a trial court must ascertain whether he made the kind of evaluation that Brown bars a trial court from making in the absence of a stipulation. We should hold that a defendant’s uncounseled stipulation cannot make polygraph evidence admissible.
I would hold that a defendant can validly stipulate to the admission of polygraph evidence only with the advice of counsel, who also must sign the stipulation.2 On the other hand, I would not adopt the stricter rule, which would preclude the use of polygraph evidence even if the defendant has been advised by counsel who also signs the stipulation. If a defendant, with the advice of counsel, decides that he wishes to take a polygraph and stipulate with his counsel to the admission of the results, he should be able to do so. A defendant, in consultation with his attorney, is ultimately responsible for deciding how to conduct his defense. See State v. Peterson, 70 Or App 333, 344, 639 P2d 985 (1984). Here, however, defendant signed a stipulation without the advice of counsel, and his counsel did not sign it. We should hold that the court erred when it did not grant defendant’s motion to suppress the evidence of his polygraph examination.
Richardson, Buttler and Warden, JJ., join in this specially concurring opinion.See State v. Skelton, 41 Or App 497, 599 P2d 1171 (1979), where we held an uncounseled stipulation invalid, because the prosecuting attorney did not sign it.
If, however, a defendant has waived his right to counsel at trial, see Faretta v. California, 422 US 806, 95 S Ct 2525, 45 L Ed 2d 562 (1975), a written stipulation signed by defendant alone may be sufficient.