concurring.
I agree with the majority that defendant’s conviction must be reversed. Judge Reisner has persuasively explained why the results of polygraph testing cannot be admitted pursuant to a stipulation entered into between the State, in this case an assistant prosecutor, and an uncounseled defendant. In my view that conclusion is inescapable. I write separately, however, to urge the Supreme Court to take the next, logical step, barring the use of polygraph evidence entirely, even pursuant to a stipulation entered into by a suspect represented by counsel.
The foundation of our evidence rules, at least insofar as jury trials are concerned, is to provide the fact-finder with only reliable and probative evidence. 1 Wigmore, Evidence § 7a at 600 (Tillers rev. 1983). Indeed, “[t]he rules of evidence are mainly aimed at guarding the jury from the overweening effect of certain kinds of evidence. The whole fabric is kept together by that purpose, and the rules are supposed to enshrine that purpose.” Id. § 8a at 621. Stated differently, “[o]ur system of admissibility is based on the purpose of saving the jurors from being misled by certain kinds of evidence.” Id. § 8c at 632. Thus, it is a fundamental axiom of evidence law that, “[njone but facts having probative value are admissible.” Id. § 9 at 655. Our evidence rules mirror that approach as well. See N.J.R.E. 401, 402, 403. Likewise, the Court has emphasized the fundamental proposition that “[ejompetent and reliable evidence remains at the foundation of a fair trial----” State v. Michaels, 136 N.J. 299, 316, 642 A.2d 1372 *31(1994). “[Reliability [is] the linchpin in determining admissibility of evidence under a standard of fairness that is required by the Due Process Clause of the Fourteenth Amendment.” Ibid. (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977)).
Given these fundamental principles, it is difficult to understand why a jury should be exposed to polygraph evidence, even if the parties agree to its admissibility. As Judge Reisner’s opinion makes clear, the Court’s most recent opinion addressing this issue strongly reaffirms the unreliability of polygraph evidence. State v. Domicz, 188 N.J. 285, 312-13, 907 A.2d 395 (2006).1 As such, it does not make sense to permit the introduction of unreliable polygraph evidence simply because the parties agree to its admissibility in advance of knowing what the test will reveal. Domicz itself questioned “the very premise of McDavitt, that polygraph test evidence can be reliable in some circumstances and for some purposes but not others.” Domicz, supra, 188 N.J. at 313, 907 A.2d 395. As Judge Reisner points out, the admissibility of a polygraph pursuant to advance stipulation is “the equivalent of a coin toss.”
In State v. Dean, 103 Wis.2d 228, 307 N.W.2d 628, 646-47 (1981)2, the court commented on the “admission-on-stipulation approach,” as follows:
The admission-on-stipulalion approach has been criticized by commentators and courts as being theoretically unsound and a legal paradox. The criticism is that ordinarily a stipulation can admit facts but not change the law. The law is that *32polygraph evidence is not admissible. Yet under [State v.] Stanislawski[, 62 Wis.2d 730, 216 N.W.2d 8 (1974)] polygraph evidence not rehable enough for admission during trial becomes admissible by virtue of the stipulation. The stipulation has thus changed the law. Tarlow, Admissibility of Polygraph Evidence in 1975; An Aid in Determining Credibility in a Perjury-Plagued System, 26 Hastings L.J. 917, 954-956 (1975).
The court went on to note other jurisdictions that rejected this approach. For example, in State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39, 46 (1979), the court reasoned that a stipulation could not cure the unreliability of the evidence, stating that “it is clear that by written stipulation parties cannot make evidence admissible that otherwise would be inadmissible. In other words, a written stipulation agreeing to the introduction of certain evidence is not the legal basis for its admissibility.” In fact, one court has found McDavitt, as well as State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962), which likewise sanctioned admissibility pursuant to stipulation,
“unpersuasive [as] ... guilty of putting the cart before the well-known horse. As we see it, the crucial issue is whether, as a matter of law, this type of evidence is sufficiently rehable or trustworthy. It cannot be logically argued that a stipulation enhances in any significant way the inherent reliability of evidence produced by a so-called scientific process or art.”
[Akonom v. State, 40 Md.App. 676, 394 A.2d 1213, 1216 (Ct.Spec.App.1978).]
Many other states have subscribed to this view, barring stipulated polygraph test results. See People v. Baynes, 88 Ill.2d 225, 58 Ill.Dec. 819, 430 N.E.2d 1070, 1077 (1981) (collecting eases); State v. Biddle, 599 S.W.2d 182 (Mo.1980); State v. Dean, supra, 307 N.W.2d at 653; Fulton v. State, 541 P.2d 871 (Okla.Crim.App.1975); State v. Lyon, 304 Or. 221, 744 P.2d 231 (1987); Commonwealth v. Pfender, 280 Pa.Super. 417, 421 A.2d 791 (1980); State v. Porter, supra, 698 A.2d at 774-75; Pulakis v. State, 476 P.2d 474, 479 (Alaska 1970); Reed v. State, 48 S.W.3d 856 (Tex.App.2001); See also Joseph T. Bockrath, Annotation, Admissibility Of Lie Detector Test Taken Upon Stipulation That The Result Will Be Admissible In Evidence, 53 A.L.R.3d 1005 (May 2007 supp. at 242-43); Wigmore, supra, § 7a at 569 n. 6, and 603 n. 35.
While it is true that the parties including a criminal defendant, may stipulate to many things in a trial, and waive objections to *33evidence, it is far different to stipulate to the admissibility of “scientific” evidence “far beyond [the] expected ken” of the defendant. People v. Zazzetta, 27 Ill.2d 302,189 N.E.2d 260, 264 (1963).
The problem with polygraph evidence is not just that it is unreliable, but that it is so inherently prejudicial. “When polygraph evidence is offered in evidence at trial, it is likely to be shrouded with an aura of near infallibility, akin to the ancient oracle of Delphi.” United States v. Alexander, 526 F.2d 161, 168 (8th Cir.1975). Many courts excluding stipulated polygraph tests have emphasized the prejudicial impact upon the jury.
There can be little question that from a jury standpoint, the polygraph test as interpreted by the expert is independent proof of what often are the most critical facts in the case, that is, the guilt of the defendant.
[Frazier, supra, 252 S.E.2d at 47.]
“[T]he polygraph device is unique in that its truth-seeking function nearly duplicates the purpose of the trial.” Akonom, supra, 394 A.2d at 1219. Some jurors may regard polygraph test results as virtually conclusive. Ibid. (citing Kaplan, Lie Detector: An Analysis of Its Place In the Law of Evidence, 10 Wayne L.Rev. 381-86 (1964)). “Polygraph evidence is not just another form of scientific evidence____ These other tests do not purport to indicate with any degree of certainty that the witness was or was not credible. By its very nature the polygraph purports to measure truthfulness and deception, the very essence of the jury’s role.” State v. Brown, 297 Or. 404, 687 P.2d 751, 774 (1984). See also Baynes, supra, 58 Ill.Dec. 819, 430 N.E.2d at 1079; Lyon, supra, 744 P.2d at 237; Porter, supra, 698 A.2d at 769-71.
Allowing an “expert” to opine on a defendant’s truthfulness in answering questions asked out of court clearly invades the jury’s exclusive province as fact-finder. Given that polygraph results have never attained the status of admissible evidence, it is time to shut the door on the “lie-detector” and bar such evidence even if pursuant to a stipulation. Admission of stipulated polygraph test results presents a classic case of making “a silk purse from a sow’s ear.” People v. Monigan, 72 Ill.App.3d 87, 28 Ill.Dec. 395, 390 N.E.2d 562, 571 (1979). The stipulation always constitutes a bet *34by a suspect that the test results mil favor him or her. I join the view expressed in State v. Lyon, supra, 744 P.2d at 232, that, as the present case illustrates, it is a gamble not worth taking.
The most recent assessment of polygraph accuracy and probative value appears to be in State v. Porter, 241 Conn. 57, 698 A.2d 739, 759-68 (1997) (adhering to a per se rule of non-admissibility in light of "the subjective nature and highly questionable predictive value of the polygraph test”).
Subsequent to Dean, Wisconsin enacted a statute permitting its corrections department to administer polygraph tests to convicted sex offenders as part of a treatment program or as a condition of the offender’s probation, parole or extended supervision. Wis. Stat. § 301.132. In Armstrong v. Bertrand, 336 F.3rd 620, 625 (7th Cir.2003), the court suggested that this statute "arguably overruled Dean in part.”