concurring and dissenting. The court today retains a per se rale that bars from evidence the results of a polygraph test under any circumstances. This per se rale infringes on the defendant’s constitutional right to present a defense. The significance — and indeed the absurdity — of this rale barring polygraph evidence under any circumstances is demonstrated by hypothesizing the following factual scenario. A defendant is accused of a capital felony subject to the death penalty and the only issue is one of identification — that is, whether he was incorrectly identified by a witness as the perpetrator of the crime. The defendant submits to a properly administered polygraph examination that indicates that he is telling the truth when he says that he did not kill the victim. He also submits to a polygraph examination administered by the state that confirms the truthfulness of his statement that he was not the perpetrator. Notwithstanding the results of these two polygraph tests, the state continues with its prosecution of the defendant because of the strong identification testimony of its sole eyewitness. The thought of executing a person found guilty under these circumstances would shock anyone’s conscience,1 whether the poly*138graph is 91 percent or merely 59 percent accurate.2 “The quintessential miscarriage of justice is the execution of a person who is entirely innocent.” Schlup v. Delo, 513 U.S. 298, 324-25, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). This per se rule of the court collides with the “ ‘fundamental value determination of our society,’ given voice in Justice Harlan’s concurrence in Winship, that ‘it is far worse to convict an innocent man than to let a guilty man go free.’ ” Francis v. Franklin, 471 U.S. 307, 313, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985), quoting In re Winship, 397 U.S. 358, 372, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (Harlan, J., concurring). “[C]oncem about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system.” Schlup v. Delo, supra, 325.
Indeed, if the defendant in the present case was an African-American, as in the companion case,3 and the case involved cross-racial identification,4 not to allow *139the jury to consider the properly administered polygraph test results when considering the reliability of the identification of the accused is simply unacceptable, whether the accused’s life is at stake or whether he faces the loss of his liberty. Furthermore, it is well known that the frailties of eyewitness identification are not limited to cross-racial identification.
In this case, the defendant sought a hearing before the trial court in order to demonstrate the validity of the polygraph test results he sought to introduce. The trial court, relying upon our failure to adopt Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), for the admission of scientific evidence and assuming that we would continue to adhere to the antiquated rule of Frye v. United *140States, 293 F. 1013 (D.C. Cir. 1923), rejected the defendant’s request for an evidentiary hearing. The trial court in the present case stated that it was “only a trial level court” and that an “appellate court [must] direct a trial court like this court to have [a] hearing.”5 Nevertheless, the defendant sought before the trial court the very procedure that we subsequently indicated should be followed in a recent opinion authored by Justice Borden in State v. Esposito, 235 Conn. 802, 832-33, 670 A.2d 301 (1996). In Esposito, we sent the strong message that in order “ [t] o create a record sufficient to allow this court to consider altering the long-standing Connecticut law barring polygraph evidence, the defendant bore the burden of demonstrating that traditional reasons for the rule are no longer applicable. Even under the Daubert rule, the evidence must be shown to be relevant and reliable to be admissible. . . . [T]he defendant bore the burden of creating a factual record before the trial court that the polygraph test possesses sufficient reliability to justify its introduction as scientific evidence.” (Citation omitted; emphasis added.) Id.
The majority of this court, instead of predicating its decision on a factual record, today decides as a matter of law that the polygraph, under any circumstances, does not have sufficient validity for the results of the test to be admissible into evidence. There are two procedural problems underlying the majority’s conclusion
*141that have constitutional implications. First, the defendant was never given an opportunity to either develop the factual basis for his claim, or, equally important, an opportunity to argue the validity of an appropriately administered polygraph. This court, on its own, contrary to Dauberl, which we embrace today, delves into the literature on the subject and decides that the polygraph does not have a sufficiently high level of validity and, therefore, determines that its prejudicial impact outweighs its probative value. Second, we did not certify that issue on appeal from the Appellate Court. Rather, we certified two issues: (1) whether the defendant had the right to an evidentiary hearing, on the issue of whether the polygraph evidence was admissible; and (2) whether we should adopt Dauberl for the admissibility of scientific evidence.6 State v. Porter, 236 Conn. 908, 670 A.2d 1308 (1996). In view of the certified issues, neither the state nor the defendant addresses the validity and reliability of a properly administered polygraph examination. Without giving the defendant an opportunity to demonstrate the scientific underpinnings and the accuracy of the polygraph, this court not only deprives the defendant of his constitutional right to present a defense,7 but also his right to be heard at a meaningful time and in a meaningful manner — both rights which, of course, are at the core of due process under the federal and state constitutions. Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965); Roundhouse Construction Corp. v. Telesco Masons Supplies Co., 168 Conn. 371, 385, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), aff'd on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976). Incredibly, not content to bar polygraph evidence from criminal trials, the court today in one sweep*142ing sentence in a footnote also adopts a per se rule excluding polygraph evidence in civil trials.8
I
First, it is important that the issues in this case be placed in the context of the evidence presented at the defendant’s trial. The defendant was charged with arson for a fire that destroyed his home on July 20, 1992. The defendant and his wife had moved into their new residence in September, 1991, and had extensively renovated the house. During the defendant’s trial, his wife testified that an area of the living room, which was identified as one of the sources of the fire, was primed and painted the day before the fire occurred. On the day of the fire, the defendant, his wife and their child smelled smoke and observed a haze in the house. The three of them then went to a neighbor’s house across the street. The defendant returned to the family home and emptied a fire extinguisher on the electrical panel in the basement, the location from which the defendant observed smoke originating. The defendant then returned to the neighbor’s house and telephoned his brother-in-law, a licensed electrician, for advice. A fire subsequently consumed the house.
The deputy fire marshall for the city of Norwich, who testified as a state’s witness, was aware that there were items such as paint thinner, turpentine, aerosol cans, jelly substances and other flammable items used in the painting of the interior of the home during the time that the fire occurred. The deputy fire marshall testified that he found three points of origin of fire, but that he had no opinion as to the source of the ignition of the fire. He also testified that he never considered electrical arcing9 as a potential source of ignition of the fire *143because no one communicated to him that there was such electrical arcing in the house. While the firefighters were tending to the fire, however, the electricity in the house was not shut off and other witnesses observed electrical arcing.
The deputy fire marshall identified a floor lamp, contained in a photograph admitted as a state’s exhibit, that was near a couch located in one of the three points of origin of the fire. Although the fire marshall testified that electrical arcing can cause fires, he failed to have the lamp or the electrical outlet dismantled and tested in order to determine if either of those were the source of the ignition of the fire. Indeed, the defendant’s attorney elicited testimony on cross-examination of the deputy fire marshall that the bum pattern on the lamp was inconsistent with his theory of where the fire started and that he had no explanation for such an inconsistency. In addition, he testified that if a fire is caused by an electrical arc, neither he nor any one else trained in the field of fire investigation would be able to determine the contact between an appliance and the fire.
At the trial, the defendant’s homeowner’s insurance agent indicated that the home was underinsured by approximately $48,000 at the time of the fire. The insur*144anee agent also testified that an increase in insurance was due to go into effect on August 30,1992, one month and ten days after the fire. Previous to the fire, the home was evaluated by the insurance company to have been in excellent condition with many renovations having been made. The renovations included new kitchen cabinets, tiled bathrooms, electrical plugs and painted walls, and new carpeting was set to arrive a week after the fire occurred. A certified public accountant testified that the defendant and his wife were current with their bills and had even prepaid their mortgage at the time of the fire. The accountant also testified that the defendant and his wife had invested most of their life savings into the renovation of their home. There were no eyewitnesses to the start of the fire.
The defendant did not testify on his own behalf, but his sworn statement to the police, concerning the denial of his participation in setting the fire and the circumstances surrounding the fire, was introduced into evidence by the state. The defendant submitted to a polygraph examination on January 27, 1993, which was administered by Leighton R. Hammond,10 a certified polygraphist and president of the Associated Detective Bureau, Inc. The defendant, well before the trial commenced, filed a pretrial motion to admit the results of a polygraph examination that he had taken. In the opinion of Hammond, the defendant was telling the truth when he answered that he neither set the fire nor knew if anyone else had purposely set the fire. Although there was sufficient time to order the defendant to submit to a polygraph examination from an expert retained by the state, as a condition for the admission of the defendant’s *145polygraph test results, the trial court, after argument, denied the defendant’s motion for a hearing regarding the admissibility of the polygraph examination. As evidenced by the above facts, the defendant’s credibility was crucial to his defense in light of the fact that the state’s case was paper-thin. Indeed, the jury agreed that the state failed to prove the fire was started by the defendant for the purpose of collecting insurance proceeds by finding him not guilty on the first count of the information, which alleged a violation of General Statutes § 53a-111 (a) (3).11 Rather, the jury found him guilty on the second count of starting a fire under circumstances in which a firefighter was subjected to substantial risk of bodily injury in violation of § 53a-111 (a) (4).12 The defendant was sentenced to imprisonment for a period of seventeen years, execution suspended after twelve years.
II
I agree with the majority that for the admissibility of scientific evidence we should abandon the Frye test and adopt the general principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 579. Under Daubert, the scientific evidence need not be generally accepted by the scientific community; rather, the scientific evidence must be relevant and reliable. Id., 594-95. In Daubert, the court delineated certain considerations, although not an exhaustive checklist, in order to guide *146trial courts through their evaluation of the admissibility of scientific evidence: (1) whether the theory or technique can be, or has been, tested; (2) whether the theory or technique has been subjected to peer review and publication, although publication (which is one element of peer review) is not an indispensable condition; (3) the known or potential rate of error and the existence and maintenance of standards controlling the technique’s operation; and (4) whether the theory or technique possesses general acceptance within the scientific community. Id., 592-95. The Supreme Court also stated that “[t]he inquiry ... is, we emphasize, a flexible one. Its overarching subject is the scientific validity — and thus the evidentiary relevance and reliability — of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” Id., 594-95. If the trial court determines that the scientific evidence is relevant and reliable, then the trial court must determine whether to exclude the evidence because its probative value is substantially outweighed by its prejudicial effect, or whether the scientific evidence will confuse the issues or mislead the jury. Id., 595. In other words, as the majority states it, a trial judge should deem scientific evidence inadmissible “only when the methodology underlying such evidence is sufficiently invalid to render the evidence incapable of helping the fact finder determine a fact in dispute.” In exercising this discretion, the trial court, however, must take into account the defendant’s right to present a defense under the sixth amendment to the federal constitution and article first, § 8, of the state constitution.13
Our conclusion today that Daubert is the correct standard for determining the admissibility of scientific evidence requires, as I shall subsequently point out, that *147trial courts determine on a case-by-case basis whether polygraph evidence is admissible. Indeed, the Daubert standard will have the salutary effect of opening the door to a new vista of scientific evidence in order to achieve justice.14
Ill
In my view, there is substantial authority that would at least justify affording the defendant an opportunity to have a hearing regarding the admissibility of the polygraph evidence. In United States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989), the Court of Appeals for the Eleventh Circuit, sitting en banc, abandoned the per se exclusionary rule regarding polygraph evidence, even before Daubert was decided.15 “Since the Frye decision, tremendous advances have been made in polygraph instrumentation and technique.16 Better equip*148ment is being used by more adequately trained polygraph administrators. Further, polygraph tests are used extensively by government agencies. Field investigative agencies such as the FBI, the Secret Service, military intelligence and law enforcement agencies use the polygraph. Thus, even under a strict adherence to the traditional Frye standard, we believe it is no longer accurate to state categorically that polygraph testing lacks general acceptance for use in all circumstances. For this reason, we find it appropriate to reexamine the per se exclusionary rule and institute a [new] rule more in keeping with the progress made in the polygraph field.” (Emphasis added.) Id., 1532.
“There is no question that in recent years polygraph testing has gained increasingly widespread acceptance as a useful and rehable scientific tool. Because of the advances that have been achieved in the field which have led to the greater use of the polygraph examination, coupled with a lack of evidence that juries are unduly swayed by polygraph evidence, we agree with those courts which have found that a per se rule disallowing polygraph evidence is no longer warranted. Of course, polygraphy is a developing and inexact science, and we continue to believe it inappropriate to allow the admission of polygraph evidence in all situations in which more proven types of expert testimony are allowed. However, as Justice Potter Stewart wrote, 'any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice.’’ Hawkins v. United States, 358 U.S. 74, 81, 79 S. Ct. 136, 140, 3 L. Ed. 2d 125 (1958) [Stewart, J., concurring]. Thus, we believe the best approach in this area is one which balances the need to admit all relevant and reliable evidence against the danger that the admission of the *149evidence for a given purpose will be unfairly prejudicial.” (Emphasis added.) United States v. Piccinonna, supra, 885 F.2d 1535.
Indeed, in a recent unanimous decision, the Court of Appeals for the Ninth Circuit abandoned the per se rale against the admissibility of polygraph evidence. “Daubert holds that it is the trial judge’s task, rather than [an appellate court’s task], to conduct the initial weighing of probative value against prejudicial effect. Accordingly, we hold that Daubert also overruled any per se rale [in the Ninth Circuit] that unstipulated polygraph evidence is always inadmissible under [r]ule 403 [of the Federal Rules of Evidence].17 Requiring the trial judge to conduct the [r]ule 403 analysis is consistent with the law of other circuits. ” United States v. Cordoba, 104 F.3d 225, 228 (9th Cir. 1997); see United States v. Posado, 57 F.3d 428, 433-34 (5th Cir. 1995) (“After Daubert, a per se rale is not viable. . . . Remaining controversy about test accuracy is almost unanimously attributed to variations in the integrity of the testing environment and the qualifications of the examiner. . . . We merely remove the obstacle of the per se rale against admissibility, which was based on antiquated concepts about the technical ability of the polygraph and legal precepts that have been expressly overruled by the Supreme Court.” [Citations omitted.]);18 see also United States v. Pettigrew, 77 F.3d 1500 (5th Cir. 1996) (reaffirming elimination of per se rale in Posado); United States v. Pulido, 69 F.3d 192, 205 (7th Cir. 1995) *150(“[t]his court has persistently refused to adopt [a per se rule against admissibility of polygraphs], choosing rather to leave the decision on admissibility to the sound discretion of the district court” [internal quotation marks omitted]); United States v. Sherlin, 67 F.3d 1208 (6th Cir. 1995) (acknowledging Daubert as standard for admissibility of polygraph evidence but holding that decision to exclude polygraph evidence rests within sound discretion of District Court); McMorris v. Israel, 643 F.2d 458 (7th Cir. 1981), cert. denied, 455 U.S. 967, 102 S. Ct. 1479, 71 L. Ed. 2d 684 (1982) (refusal of prosecutor to give reasons for not entering into stipulation regarding admissibility of polygraph test results in state court prosecution was violation of defendant’s due process rights); United States v. Galbreth, 908 F. Sup. 877 (D.N.M. 1995) (admitting polygraph evidence, although Tenth Circuit cases prior to Daubert held that polygraph evidence is inadmissible); Ulmer v. State Farm Fire & Casualty Co., 897 F. Sup. 299 (D. La. 1995) (admitting polygraph evidence after finding that Daubert must be applied); United States v. Crumby, 895 F. Sup. 1354 (D. Ariz. 1995) (accepting Daubert as proper standard for admissibility of polygraph evidence and allowing admission of polygraph evidence under certain conditions); United States v. Lech, 895 F. Sup. 582 (S.D.N.Y. 1995) (assuming that Daubert applies to polygraph evidence but holding under facts of case that evidence not admissible); United States v. Scheffer, 44 M.J. 442, 445-6 (C.M.A. 1996), cert. granted, 523 U.S. , 117 S. Ct. 1817, 137 L. Ed. 2d 1026 (1997) (holding that military rule of evidence excluding polygraph evidence, under the circumstances of that case, violated defendant’s sixth amendment right to present a defense);19 United States v. Mobley, 44 M.J. 453, 454-45 (C.M.A. 1996) (same, companion case to Scheffer).
In addition, it appears that the Court of Appeals for the Second Circuit has signaled that it is ready to con*151sider the admissibility of polygraph evidence under Daubert. See United States v. Kwong, 69 F.3d 663, 669 (2d Cir. 1995) (“ft]he record before us simply does not provide the proper opportunity to explore the validity of polygraph evidence”). Likewise, the Court of Appeals for the Fourth Circuit has indicated that it is ready to reconsider the admissibility of polygraph evidence; see United States v. Toth, 91 F.3d 136 (4th Cir. 1996) (decided without published opinion), No. 95-5191, 1996 U.S. App. LEXIS 19017, *12-14 (implying that, in appropriate case, polygraph evidence will be reconsidered in light of Daubert, Fifth Circuit’s decision in Posado, and Eleventh Circuit’s decision in PiccinonmT)-, and the Eighth Circuit has also implied that it will reconsider the admissibility of polygraph evidence. See United States v. Williams, 95 F.3d 723, 728-30 (8th Cir. 1996) (implying that nonstipulated polygraph evidence may be admissible under Daubert, but that District Court has discretion to exclude the evidence under rule 403).20
The only federal circuit in which the Court of Appeals, or the district courts within the circuit, have not abrogated or rejected a per se rule is the Court of Appeals for the District of Columbia Circuit. United States v. Skeens, 494 F.2d 1050, 1053 (D.C. Cir. 1974). The decision in Skeens, however, dates back to 1974, more than eighteen years before Daubert, and that, of course, was the Circuit Court of Appeals that originally promulgated the Frye test back in 1923. See id., 1053 (“The leading case in this Circuit [regarding the admissibility of polygraph tests] is Frye. . . . This case has been followed uniformly in this and other Circuits and there has never been any successful challenge to it in any federal court.” [Citation omitted.]). In addition, the First Circuit, in United States v. Black, 78 F.3d 1, 7 (1st Cir. 1996), stated that “the results of polygraph examinations are generally inadmissible . . . .” (Citation omitted; emphasis added.) *152This appears not to be a per se rule, but, notwithstanding, Black relied on a Sixth Circuit case for the proposition that polygraph test results are generally inadmissible. See id., citing United States v. Scarborough, 43 F.3d 1021, 1026 (6th Cir. 1994). Even the Sixth Circuit, however, as noted previously, no longer follows that rule. United States v. Sherlin, supra, 67 F.3d 1216-17.
Thus, six federal Circuit Courts of Appeals (Fifth, Sixth, Seventh, Ninth, Eleventh and the Court of Appeals for the Armed Forces) and federal district courts in two other circuits (Second and Tenth) no longer apply a per se rule excluding polygraph evidence; three federal Circuit Courts of Appeals (Second, Fourth and Eighth) have either indicated a willingness to review the admissibility in a proper case or implicitly indicated that it was admissible. The Court of Appeals for the Third Circuit has not addressed the issue of polygraph admissibility. As the Court of Appeals for the Fourth Circuit just recently pointed out, “circuits that have not yet permitted evidence of polygraph results for any purpose are now in the decided minority.” (Internal quotation marks omitted.) United States v. Toth, supra, 1996 U.S. App. LEXIS 19017, *13.21
In addition, state courts22 have ruled that polygraph evidence is admissible in varying situations. See, e.g., *153State v. Catanese, 368 So. 2d 975, 981-83 (La. 1979) (polygraph evidence admissible in posttriai, and possibly pretrial, proceedings); Conner v. State, 632 So. 2d 1239, 1257-59 (Miss. 1993) (evidence of willingness to take polygraph examination admissible to rehabilitate impeached witness’ credibility); State v. Sanders, 117 N.M. 452, 872 P.2d 870, 877 (1994) (polygraph evidence admissible under state rules of evidence previously enacted by state Supreme Court);23 State v. Wright, 322 S.C. 253, 255, 471 S.E.2d 700 (1996) (“[t]he admission of evidence in a criminal prosecution is within the discretion of the trial judge and his ruling will not be *154disturbed on appeal unless abuse of discretion is shown”). Finally, many other jurisdictions allow polygraph evidence when its admissibility is stipulated to in advance by the defendant and the state.24
IV
The majority acknowledges — by way of an assumption — that polygraph evidence “may have enough demonstrated validity to pass the Daubert threshold for admissibility.” The majority then illogically decides, as a matter of law, that the prejudicial impact outweighs its probative value. Notwithstanding our adoption of Daubert in this case, the majority then completely ignores the underpinnings of Daubert. In Daubert, the United States Supreme Court held: “Faced with a proffer of expert scientific testimony . . . the trial judge must determine at the outset . . . whether the expert is proposing to testily to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” (Citation omitted; emphasis added.) Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 592; see also United States v. Cordoba, supra, 104 F.3d 228 (pursuant to Daubert, it is trial judge’s task, rather than appellate level court’s task, to weigh probative value against prejudicial effect).
Although the determination of the admissibility of scientific evidence in the first instance is a question for the trial court, I must comment on the majority''s finding that, as a matter of law, the prejudice of polygraph evidence outweighs its probative value. Applying what the majority formulates as our general standard for the admissibility of evidence — whether the prejudicial impact outweighs its probative value — the majority concludes that polygraph evidence is more prejudicial for essentially three reasons: (1) it lacks accuracy and, therefore, is of limited probative value; (2) it is time-consuming; and (3) it *155invades the jury’s fact-finding mission. I find none of these reasons sufficient to support a rule that directs our trial courts to omit polygraph evidence under all circumstances, in civil as well as criminal trials, regardless of whether the omission is stipulated to in advance by both the state and the defendant in a criminal case25 or by the plaintiff and the defendant in a civil case.
First, as to its accuracy, the courts and the literature have indicated that a properly administered polygraph examination is quite accurate. In fact, the majority concedes that there are impressive statistics as to its accuracy, based upon a very recent study. The majority opinion indicates that David Raskin, a noted authority, reviewed laboratory studies (simulated studies) that indicate that the polygraph has an 89 percent sensitivity rate (correctly labels a deceptive subject as being deceptive 89 percent of the time) and 91 percent specificity rate (correctly labels a truthful subject as being truthful 91 percent of the time), whereas the field studies (based on data from polygraph examiners in actual criminal cases) indicate that the polygraph has an 87 percent sensitivity rate and 59 percent specificity rate.26 D. Raskin, “The Scientific Status of Research on Polygraph Techniques,” in West Companion to Scientific Evidence 2 (Faigman et al. eds., forthcoming 1996), cited in C. Honts & B. Quick, “The Polygraph in 1995: Progress in Science and the Law,” 71 N.D. L. Rev. 987, 995, 1018-19 (1995); see also D. Raskin, “Hoffmann, Hypnosis, and the Polygraph,” 3 Utah B.J. 7, 8 (1990) (“[Ejxtensive scientific data have clearly demonstrated that polygraph examinations that are properly conducted in appropriate situations have an accuracy rate that exceeds 90 percent .... Major advances in instrumentation, improvements in examination procedures, and our development of computerized methods *156for interpreting the outcome of polygraph tests . . . have produced accuracy rates of approximately 95 percent in federal criminal investigations . . . .’’[Citations omitted.]); A. Moenssens, F. Inbau & J. Starrs, Scientific Evidence in Criminal Cases (3d Ed. 1986) § 14.09, p. 712 (“when the technique is properly applied by a trained, competent examiner, it is very accurate in its indications, with a known error percentage of less than one percent”); D. Raskin, “The Polygraph in 1986: Scientific, Professional and Legal Issues Surrounding Application and Acceptance of Polygraph Evidence,” 1986 Utah L. Rev. 29, 72 (1986) (“[t]he existing literature suggests an accuracy of 90 [percent] or higher when examinations are conducted to assess the credibility of suspects in criminal investigations and other specific incidents”). In addition to Raskin’s most recent study, the majority also concedes that “other studies indicate higher levels of accuracy,” citing generally to P. Giannelli, “Forensic Science: Polygraph Evidence: Part I,” 30 Crim. L. Bull. 262, 271-73 (1994), and 1 C. McCormick, Evidence (4th Ed. 1992) § 206, pp. 909-10.27
*157In concluding that the traditional reasons for the per se rule are unpersuasive, one commentator has stated: “The most frequently mentioned [criticism] is that the technique is ‘unreliable’ due to inherent failings, a shortage of qualified operators,28 and the prospect that ‘coaching’ and practicing would become commonplace if the evidence were generally admissible. Yet, by themselves, such doubts are not sufficient to warrant a rigid exclusionary rule. A great deal of lay testimony routinely admitted is at least as unreliable and inaccurate, and other forms of scientific evidence involve risks of instrumental or judgmental error.” 1 C. McCormick, supra, § 206, pp. 914-15. Indeed, with respect to psychiatric testimony used to predict a defendant’s future potential for dangerous behavior, the United States *158Supreme Court has stated, despite the unanimous expert opinion that such conclusions were accurate only one out of three times; Barefoot v. Estelle, 463 U.S. 880, 920-22, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983) (Blackmun, J., dissenting); that “[a]ll of these professional doubts about the usefulness of psychiatric predictions can be called to the attention of the jury. Petitioner’s entire argument, as well as that of Justice Blackmun’s dissent, is founded on the premise that a jury will not be able to separate the wheat from the chaff. We do not share in this low evaluation of the adversary process.” Id., 899-901 n.7.
Second, the claims that it will be time-consuming for our courts can be disposed of in short shrift. The need to conserve precious court time pales in significance when a person’s liberty or life is at stake.29 Surely, we cannot be that callous to a person who may be innocent. Any problems with polygraph evidence can be overcome through rules developed by this court regarding its admissibility, the availability of apolygraph examination conducted by the state, cross-examination and jury instructions.30
*159The greatest tragedy in our judicial system, with all its fallibility and misidentifications, would be to take away the life or liberty of one innocent person for the sake of preventing guilty persons from escaping punishment. See 4 W. Blackstone, Commentaries on the Laws of England (1769) c. 27, p. 352 (“it is better that ten guilty persons escape, than that one innocent suffer”).
Finally, the majority curiously rejects polygraph evidence on the ground that it invades the fact-finding province of the jury. There are three answers to that argument. First, any reliable device that can aid the jury in its truth seeking mission should be available under rules and standards set forth by this court. As stated by the United States Court of Appeals for the Armed Forces: “We believe that the truth-seeking function is best served by keeping the door open to scientific advances.” United States v. Scheffer, supra, 44 M.J. 446. Second, as we approach the twenty-first century, “science, for better or for worse, has become more a part of our daily lives. Scientific evidence, in turn, has become more a part of the ordinary trial so that jurors *160may be more likely to use polygraph evidence with discretion.” McMorris v. Israel, supra, 643 F.2d 462. Third, we allow the prosecution to introduce expert testimony, which is fax less reliable than the polygraph, to bolster the credibility of the state’s case in other situations. See, e.g., State v. Ali, 233 Conn. 403, 432, 660 A.2d 337 (1995) (expert allowed to testify as to typical behavior patterns of victims of sexual assault); State v. Freeney, 228 Conn. 582, 592, 637 A.2d 1088 (1994) (same); State v. Borrelli, supra, 227 Conn. 173-74 (expert allowed to testify as to typical behavior patterns of victims of battered women’s syndrome); State v. Spigarolo, 210 Conn. 359, 378-79, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989) (expert allowed to testify that it is not unusual for child sexual abuse victim to give inconsistent or incomplete statements).
Indeed, this court recently allowed expert testimony to bolster the testimony of a child sexual abuse victim where there was a prolonged delay in the disclosure of the abuse to the authorities. See State v. Christiano, 228 Conn. 456, 459-63, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994). In fact, in the court’s opinion in that case, authored by Justice Borden, we observed that “[t]he admissibility of opinion testimony of expert witnesses is a matter within the discretion of the trial court. . . . Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Citation omitted; internal quotation marks omitted.) Id., 461.
Although some of the previously noted cases can be distinguished because the expert testimony was admitted for the purpose of establishing the behavior patterns of the victims, I see little difference in the distinction. Nevertheless, that distinction has little substance because in those situations the evidence is submitted to bolster the credibility of the state’s case, the state’s witness, or both.
*161V
Finally, by not allowing the defendant an opportunity to have a hearing before the trial court in order to demonstrate the reliability of the polygraph evidence, he is deprived of his right to present a defense under the sixth amendment to the federal constitution and article first, § 8, of the state constitution.31 The United States Supreme Court has made it clear that the right of an accused to present testimony that is relevant and material may not be denied arbitrarily. Washington v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).
In Rock v. Arkansas, 483 U.S. 44,107 S. Ct. 2704,97 L. Ed. 2d 37 (1987), the United States Supreme Court reversed the conviction of a defendant by holding that her sixth amendment right under the federal constitution was violated when she was deprived of the right to call herself as a witness to testify on her own behalf, regardless of the fact that she needed to be hypnotically refreshed and the state’s law did not allow this form of testimony. ‘A State’s legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case. . . . The State would be well within its powers if it established guidelines to aid trial courts in the evaluation of posthypnosis testimony and it may be able to show that testimony in a particular case is so unreliable that exclusion is justified.” (Emphasis added.) Id., 61. “Despite the unreliability that hypnosis concededly may introduce . . . the procedure has been credited as instrumental in obtaining investigative leads or identifications that were later confirmed by independent evidence. . . . The inaccuracies the process introduces can be reduced, although perhaps not eliminated, by the use of procedural safeguards.” (Citations omitted.) Id., 60.32
*162On the basis of Rock, one commentator has pointed out that a per se exclusionary rule regarding polygraph evidence violates a defendant’s constitutional right to present a defense. “A recent [United States] Supreme Court interpretation of the constitutional right of a defendant in a criminal prosecution to call witnesses to testify in his or her behalf requires a reconsideration of the denial position when a criminal defendant attempts to introduce exculpatory polygraph evidence. Beginning with its earlier opinions in Chambers v. Mississippi [410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)] and Green v. Georgia, [442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979)] the Supreme Court started the development of a constitutional right to introduce exculpatory evidence in criminal trials. The Court’s 1987 opinion in [Rock] established the basic components of that right. . . . The Court stated in dicta that reasonable restrictions on the right to call a witness to give posthypnotic recall, as opposed to a per se prohibition, would be constitutional.” J. McCall, “Misconceptions and Reevaluation — Polygraph Admissibility after Rock and Daubert,” 1996 U. Ill. L. Rev. 363, 392-93 (1996).33
“The right to present defense evidence was also cited in McMorris v. Israel, [supra, 643 F.2d 458 ] in which the defendant offered to stipulate to the admission of a polygraph examination. Although stipulated polygraph *163results were admissible under state law at that time, the prosecutor, without offering any reasons, refused to stipulate. . . . The court [in granting habeas corpus relief to the defendant] . . . rested its decision on [narrow] grounds; that is, the prosecution’s refusal to stipulate without offering a valid ground for the refusal deprived the defendant of due process . . . .” P. Giannelli, “Forensic Science: Polygraph Evidence: Part II,” 30 Crim. L. Bull. 366, 375 (1994).
Just recently, in United States v. Scheffer, supra, 44 M.J. 445-46, the Court of Appeals for the Armed Forces held, notwithstanding the militaiy rule of evidence with respect to the inadmissibility of polygraph evidence, that such evidence could not be excluded in a situation where the defendant testified, placed his credibility in issue, and was accused by the prosecution of being a liar. “A per se exclusion of polygraph evidence offered by an accused to rebut an attack on his credibility, without giving him an opportunity to lay a foundation under [the military rule of evidence regarding scientific testimony] and Daubert, violates his Sixth Amendment right to present a defense.”34 Id., 445. In Scheffer, the court relied on Rock for the proposition that per se exclusions of evidence that may be reliable in an individual case cannot stand; Rock v. Arkansas, supra, 483 U.S. 61; and stated that “[w]hile Rock concerned exclusion of a defendant’s testimony and this case concerns exclusion of evidence supporting the truthfulness of a defendant’s testimony, we perceive no significant constitutional difference between the two. In either case, the Sixth Amendment right to present a defense is implicated.” United States v. Scheffer, supra, 446; see also United States v. Mobley, supra, 44 M.J. 454-45. Likewise, *164in the present case, the defendant’s right to present a defense is also implicated.35
VI
In conclusion, I would remand this case to the trial court in order to furnish the defendant with an opportunity to prove the validity of his polygraph examination and to demonstrate that it was correctly administered in this case. Both the state and the defendant should have the opportunity to be heard on the issue of accuracy and the conditions for the admissibility of the polygraph evidence. Only then do I believe that a court would be in the position to rule on its admissibility. “Where credibility is as critical as in the instant case, the circumstances are such as to make the polygraph evidence materially exculpatory within the meaning of the [federal] [constitution.” McMorris v. Israel, supra, 643 F.2d 462.
Accordingly, I dissent with respect to the issue of the admissibility of polygraph evidence.
BERDON, J., dissenting. I write this separate dissenting opinion based upon what occurred after this court released its opinion in this case on May 20, 1997. See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997). In part I of the court’s opinion, in which I concurred, we unanimously agreed to abandon the Frye1 test for the admissibility of scientific evidence in order to adopt the standards under the Federal Rules of Evidence as interpreted in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). State v. Porter, supra, 75-76. Daubert did not formulate a court-made rule, but merely interpreted the federal rules. As its starting point, the court in Daubert noted that rule 402 of the Federal Rules of Evidence provides the “baseline” for interpreting the federal rules. Daubert v. Merrell Dow Pharmaceuti*164Acals, Inc., supra, 587. Rule 402 provides that “[a]llrelevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.” With respect to expert testimony, Daubert relied on rule 702 of the Federal Rules of Evidence, which provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” With these rules in mind, the court in Daubert outlined certain “considerations” in order to guide trial courts when considering, as part of their “gatekeeper” role, whether to admit proffered scientific evidence. Interrelated with rule 702, as Daubert points out, is rule 403, which “permits the exclusion of relevant evidence ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ....”’ (Emphasis added.) Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 595. Accordingly, in part I of our original opinion, we not only adopted the “considerations” that the court in Daubert delineated under the auspices of rule 702, but we also made clear that the admissibility of scientific evidence was subject to the limitations of rule 403 by stating that “scientific evidence, like all evidence, is properly excluded if its prejudicial impact substantially outweighs its probative value, even if it is otherwise admissible. See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, [595] . . . .” (Citations omitted; emphasis added.) State v. Porter, Connecticut Law Journal, Vol. 53, No. 47, p. 92 (May 20, 1997).
On June 24, 1997, the majority of this court amended the original version of the Porter opinion by deleting the word “substantially” from the previously quoted material when it substituted the original page 90 with a replacement *164Bpage. See State v. Porter, supra, 241 Conn. 90.2 The rule that the court now adopts in Porter is that such scientific evidence can be excluded from evidence, after passing Daubert’s threshold considerations for admissibility, if “its prejudicial impact outweighs its probative value”; id.; a rule neither party advocated.
I neither question that this court has the authority to hone the rules of evidence interpreted by Daubert, in order to fit the needs of our Connecticut jurisprudence,3 nor do I necessarily believe that the word “substantially” should not have been deleted from the formulation in Porter of the prejudicial impact versus probative value test. I believe, however, that the decision to make such a substantial change in the opinion should have been made only in the context of the advocacy of a case, so that this court could act with the input of the parties, as well as of others who have a potential interest.
Furthermore, I note that although our prior case law has not been consistent, this court has stated in the past that relevant evidence is to be excluded only if it is “unduly prejudicial.” See State v. Jeffrey, 220 Conn. 698, 707, 601 A.2d 993 (1991) (holding that admitted evidence “had probative value and that its admission into evidence was not unduly prejudicial to the defendant and was, consequently, a proper exercise of the trial court’s discretion” [emphasis added]); see also State v. Crafts, 226 Conn. 237, 255, 627 A.2d 877 (1993) (“The defendant’s final objection to the admission of the statements is that the testimony should have been excluded because it was more prejudicial than probative. The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.” [Emphasis added.]); State v. Santiago, 224 Conn. 325, 339-40, 618 A.2d 32 (1992) (enumerating situations in which “unduly prejudicial” effect *165of relevant evidence would counsel its exclusion); State v. Rinaldi, 220 Conn. 345, 356, 599 A.2d 1 (1991) (same).
Because we should leave the decision of whether to delete the word “substantially” from our rule, with respect to the admissibility of scientific evidence, to such time when that issue is properly raised within the context of a case or controversy, I disagree with the change in the original opinion of this court.
The majority, in footnote 80 of its opinion, in response to my concerns about the execution of an innocent person, attempts to allay those concerns by suggesting that polygraph evidence is admissible before the jury in the penalty phase of a capital case. I am unable to understand how polygraph evidence could be sufficiently reliable for the jury to consider when determining whether a person should be executed or whether a person should spend the rest of his or her life confined in prison, but not sufficiently *138reliable for the purpose of determining guilt or innocence. The logic of the majority eludes me.
See part IV of this opinion.
See State v. Hunter, 241 Conn. 165, 694 A.2d 1317 (1997).
“It is well documented that cross-racial identification is less reliable than identification of one person by another of the same race. [Considerable evidence indicates that people are poorer at identifying members of another race than of their own. . . . Moreover, counterintuitively, the ability to perceive the physical characteristics of a person from another racial group apparently does not improve significantly upon increased contact with other members of that race. Because many crimes are cross-racial, these factors may play an important role in reducing the accuracy of eyewitness perception. Note, ‘Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification,’ 29 Stan. L. Rev. 969, 982 (1977). Elizabeth F. Loftus, in her classic treatise entitled ‘Eyewitness Testimony,’ wrote that [i]t seems to be a fact — it has been observed so many times — that people are better at recognizing faces of persons of their own race than a different race. E. Loftus, Eyewitness Testimony (1979) pp. 136-37. She concluded, on the basis of an examination of studies made on the subject, that [pjeople have greater difficulty in recognizing faces of another race than faces of their own race. Id., 139. State v. Cerilli, 222 Conn. 556, 588-89, 610 A.2d 1130 (1992) (Berdon, J., dissenting).
“Concern for the problems of cross-racial identification is well docu*139merited in our case law as well as by other social scientists. We are painfully aware of miscarriages of justice caused by wrongful identification. Those experienced in criminal trial work or familiar with the administration of justice understand that one of the great problems of proof is posed by eyewitness identification, especially in cross-racial identification .... Judge Bazelon, dissenting in United States v. Butler, 636 F.2d 727 (D.C. Cir. 1980), cert. denied, 451 U.S. 1019, 101 S. Ct. 3010, 69 L. Ed. 2d 392 [1981], observed that many experts have concluded that convictions based solely on one eyewitness identification represent conceivably the greatest single threat to the achievement of our ideal that no innocent men shall be punished. . . . Brown v. Davis, 752 F.2d 1142, 1146 (6th Cir. 1985); see also Kampshoff v. Smith, 698 F.2d 581 (2d Cir. 1983). Another important factor to be considered in assessing the reliability of an identification is whether the witness and the person identified are of the same or different races. In general, there is a much greater possibility of error where the races are different than where they are the same. Where they are different, there is more likelihood of error where the suspect belongs to a minority group and the witness to a majority group than there is in the opposite situation. Almost fifty years ago, it was said to be: well known that, other things being equal, individuals of a given race are distinguishable from each other in proportion to our familiarity, to our contact with the race as a whole. Thus to the uninitiated American, all [Asians] look alike, while to the [Asian] all white men look alike. P. Wall, Eye-Witness Identification in Criminal Cases (2d Ed.) p. 122; A. Yarmey, The Psychology of Eyewitness Testimony (1979) pp. 130-31.” (Emphasis in original; internal quotation marks omitted.) State v. Reddick, 224 Conn. 445, 471-72 n.1, 619 A.2d 453 (1993) (Berdan, J., dissenting).
In groping for support for its position, the majority, quoting the Appellate Court out of context, claims at the end of its opinion that the Appellate Court had also concluded that a hearing on the admissibility of the polygraph evidence would be a “nugatory undertaking.” What the Appellate Court held was that because of this court’s precedent holding that polygraph evidence is inadmissible, a hearing on the validity of the polygraph examination would serve no purpose. See State v. Porter, 39 Conn. App. 800, 803, 668 A.2d 725 (1995) (“The trial court, like this court, is bound by the Connecticut precedent which bars the admission of polygraph results. . . . Because an evidentiary hearing would have been a nugatory undertaking, the trial court was not required to grant the defendant’s motion for an evidentiary offer of proof.” [Citation omitted.]).
See footnote 3 of the majority opinion.
See part V of this opinion.
See footnote 36 of the majority opinion.
An electrical arc is defined as “a sustained brilliantly luminous glow sometimes having the appearance of a curved line of flame that is formed under certain conditions when a break is made in an electric circuit.” Web*143ster’s Third New International Dictionary. One of the firefighters, a captain of the Yantic fire company, testified for the state at the defendant’s trial and he described electrical arcing as “a bluish color, bluish white color that arcs and it sounds . . . like a popping crackling noise, followed by a blue and whitish color. . . . It’s kind of like [the] sparkler you see at the 4th of July [that] the kids have.” Regarding the general distance of an electrical arc, he testified that “if you’re talking 110, 220 voltage in an average house as you have up there ... it depends on what it’s feeding, depends on how much of the line has been burnt, if you had a long electrical cord where the fire had melted the cord down and you put water on it, the whole thing could arc maybe six feet. It could be only two feet. It’s very hard to tell.” The same firefighter also testified that he did not see any electrical arcing while he was fighting the fire, but that, while at the scene of the fire, it was transmitted to him by portable radio that other firefighters had observed electrical arcing.
At oral argument before the trial court regarding the defendant’s motion to admit the results of his polygraph examination, the defendant’s attorney represented to the trial court that Hammond works for fifty-three police departments and performs all of the polygraph testing for the Windsor police department.
See part V of this opinion.
General Statutes § 53a-111 provides in relevant part: “Arson in the first degree: Class A felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and . . . (3) such lire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss . . . .”
General Statutes § 53a-111 (a) provides in relevant part: “A person is guilty of arson in the first, degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and ... (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.”
See footnote 4 of this opinion with respect to identification evidence. In United States v. Amador-Galvan, 9 F.3d 1414, 1417-18 (9th Cir. 1993), the court held that Daubert, overruled a per se rule excluding expert testimony regarding the credibility of eyewitness identification. See also United States v. Cordoba, 104 F.3d 225, 227 (9th Cir. 1997) (applying reasoning in Amador-Galvan to polygraph evidence and holding that per se rule was overruled by Daubert).
The court in Piccinonna, established certain conditions, as we should, for the admissibility of polygraph evidence. Besides allowing polygraph results to be admitted based on a stipulation, the court in Piccinonna outlined that this evidence is admissible to impeach or corroborate the testimony of a witness if: (1) the party planning to use the polygraph evidence provides adequate notice to 1he opposing party that the expert testimony will be offered; (2) the opposing party must be given a reasonable opportunity to have its own polygraph examiner administer a test covering substantially the same questions; and (3) any relevant requirements of the Federal Rules of Evidence must be followed — for instance, evidence that a witness passed a polygraph examination cannot be used to corroborate that witness’ testimony until after the credibility of that witness has been attacked. United States v. Piccinonna, supra, 885 F.2d 1536. “Even where the above three conditions are met, admission of polygraph evidence for impeachment or corroboration purposes is left entirely to the discretion of the trial judge.” Id.
“The instrument used in Frye measured only one physiological response (blood pressure), whereas the modem polygraph measures respiration and galvanic skin resistance in addition to blood pressure. The technique also *148has been improved through the development of control questions, the pretest interview, and simulation methods.” 1 P. Giannelli & E. Imwinkelried, Scientific Evidence (2d Ed. 1993) § 8-3, p. 231 n.75.
Rule 403 of the Federal Rules of Evidence provides: “Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
In Posado, even the government, conceded that the per se rule against admitting polygraph evidence was “no longer viable after Daubert.” United States v. Posado, supra, 57 F.3d 432.
See part V of this opinion.
The Eighth Circuit also allows stipulated polygraph evidence.
I have two observations with respect to the case law that the majority relies upon. First, with respect to the state jurisdictions, the vast number of the cases were decided before Daubert. Second, the majority downplays how the federal courts have dealt with Daubert in the context of polygraph evidence. Although the majority today embraces Daubert, it chooses to ignore the wave of compelling federal precedent, following in the wake of Daubert, holding that the admissibility of polygraph evidence must be decided by trial courts on a case-by-case basis.
At one time, Massachusetts admitted polygraph evidence without stipulation. Commonwealth v. A Juvenile, 365 Mass. 421, 425-26, 313 N.E.2d 120 (1974). In 1989, however, the Supreme Judicial Court of Massachusetts abandoned the position it had adopted in that case and ruled polygraph evidence inadmissible in criminal trials. Commonwealth v. Mendes, 406 Mass. 201, 212, 547 N.E.2d 35 (1989). In the dissenting opinion in Mendes, *153Chief Justice Liacos stated that “[t]he court today rushes headlong into the wholesale rejection of a carefully crafted set of rules in this Commonwealth governing the admissibility of polygraph evidence.” Id., 212. He further stated that “[w]ith proper oversight and the appropriate use of judicial discretion by trial judges, the polygraph can serve as an effective tool in the truth-seeking process.” Id., 216 (Liacos, C. J., dissenting).
“Of 1 he state jurisdictions, New Mexico has gone the furthest in admitting polygraph evidence. In State v. Dorsey, [88 N.M. 184, 539 P.2d 204 (1975)] the New Mexico Supreme Court held that polygraph results were admissible if (1) the operator is qualified; (2) the testing procedures were reliable; and (3) the test of the particular subject was valid. [Id., 184-85.]” P. Giannelli, “Forensic. Science: Polygraph Evidence: Part II,” 30 Grim. L. Bull. 366, 373 (1994). “Several subsequent New Mexico appellate decisions have addressed procedural details flowing from the general admission authorized in Dorsey. . . . These holdings were incorporated in New Mexico Rule of Evidence 11-707, a comprehensive polygraph examination rule adopted by the Supremo Court of New Mexico in 1983.” (Citations omitted.) J. McCall, “Misconceptions and Reevaluation—Polygraph Admissibility after Rock and Davbort," 1996 U. Ill. L. Rev. 363, 386 (1996).
“The rule changed the prior law in New Mexico by limiting admission of polygraphs to purposes of impeaching or corroborating the testimony of a witness, and by requiring thirty-day written notice of a party’s intention to offer polygraph evidence at trial. Additionally, the following features of the rule set out clear cut solutions to four major concerns about, the admission of polygraph results: a set of minimum qualifications a polygrapher must meet to give testimony about a polygraph test result in a New Mexico court, a. recording requirement for all aspects of the polygraph examination, a prohibition on compelling any witness to take a polygraph examination, and a set of protocol requirements for a polygraph examination that must be followed if the results of the test, are to be admitted in New Mexico courts.” Id., 387-88.
See footnote 69 of the majority opinion.
See part II C of the majority opinion.
See part II B 2 a of the majority opinion.
The majority, in part IIB 2 b of its opinion, discusses “predictive values” based on the polygraph’s sensitivity and specificity. Based upon Raskin’s most recent field-derived figures of 87 percent sensitivity and 59 percent specificity, the majority calculates that “we should only be 68 percent confident that a subject really is lying if the subject fails a polygraph exam, and only 82 percent confident that the subject is being truthful if the subject passes.” Using only Raskin’s laboratory-derived figures, the majority calculates even higher “predictive values.”
In the present case, using the majority’s figures, we can be 82 percent confident that the defendant was being truthful when he passed his polygraph examination, an examination where he was asked whether he set fire to his house or if he knew if anyone else had purposely set the fire. See part I of this opinion. With this high degree of certainty, not to allow this evidence is simply unconscionable.
With respect to the truth-seeking ability of the polygraph, I find the “predictive value” percentages calculated by the majority compelling enough to show that a per se rule is unwarranted, especially in light of the significant debate about the accuracy of the polygraph. The trial courts in the first instance must conduct case-specific inquiries regarding offered polygraph evidence, in order to screen out incompetent polygraph practitioners and *157improperly conducted polygraph examinations. See footnotes 15, 23 and 28 of this opinion. As the Fifth Circuit Court of Appeals aptly stated, “[remaining controversy about test accuracy is almost unanimously attributed to variations in the integrity of the testing environment and the qualifications of the examiner.” United States v. Posado, supra, 57 F.3d 434.
Many of the arguments against the admissibility of polygraph evidence center around undesirable and incompetent examiner practices. “Polygraph examiners in the United States, as a whole, are poorly trained. Their techniques lack standardization, and polygraph tests are subject to manipulation by unethical examiners. Given this state of affairs, the probative value of the work-product of most of the polygraph professionals should rightly be questioned. . . . [M]any of the problems associated with examiner practices could be exposed and/or controlled by an evidentiary requirement that all polygraph tests offered for admission be tape recorded in their entirety. However, to date only New Mexico has taken this step to assure the quality of polygraph tests offered for evidence. Problems of attorneys shopping for a particular test outcome could be controlled by an evidentiary requirement that if one test is offered, all polygraph tests conducted on a particular subject must be disclosed. Again, only New Mexico has taken this simple and seemingly logical step.” C. Honts & M. Perry, “Polygraph Admissibility: Changes and Challenges,” 16 Law & Hum. Behav. 357, 375-76 (1992).
“The wealth of examples provided by actual cases shows that a great deal of questionable evidence is produced by incompetent, poorly trained and unethical polygraph examiners. ... To reduce these problems, the court could appoint polygraph experts after consultation with all parties. That would minimize the pressures placed on experts hired by one party and maximize the likelihood of screening out so-called experts who are incompetent or lack integrity.” D. Raskin, supra, 1986 Utah L. Rev. 71
The United States Court of Appeals for the Armed Forces answered the “floodgate” argument that their decision regarding polygraph evidence would generate an unreasonable burden on the military courts as follows: “Apart from the speculative nature of such an argument, we think that it is just as likely that polygraph evidence will prevent needless litigation by avoiding some meritless prosecutions as well as smoking out bogus [defenses]. . . . [0]ur measure should be the scales of justice, not the cash register.” United States v. Scheffer, supra, 44 M.J. 448.
The United States Supreme Court, in Daubert, rejected an argument that the abandonment of the “general acceptance” standard for the admissibility of scientific evidence will “result in a ‘free-for-all’ in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions. [This argument is] overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” (Emphasis added.) Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 595-96.
*159Arguments that polygraph evidence tends to mislead or confuse the jury are generally not supported in the literature. “Studies tend to show that juries are more inclined not to give extraordinary weight to polygraph evidence. Field and laboratory studies have consistently supported the notion that juries are capable of weighing and evaluating all evidence and rendering verdicts that may be inconsistent with polygraph results ....
“Several theories exist as to why polygraph evidence doesn’t mislead or confuse a jury: jurors distrust scientific evidence, cross-examination brings out the weaknesses in polygraph evidence giving jurors the ability to give polygraph tests ... the weight they are due, or there may be other significant evidence to support either a conviction or acquittal (or finding for [the] plaintiff or [the] defendant in a civil action) that simply outweighs the impact of the polygraph evidence .... Despite the logic and research to support these theories, none seem sufficient to persuade many courts from what appears to be a disparaging, and somewhat condescending, perspective of the abilities of American juries.” G. Honts & M. Perry, “Polygraph Admissibility: Changes and Challenges,” 16 Law & Hum. Behav. 357, 366-67 (1992); see also D. Raskin, supra, 1986 Utah L. Rev. 66 (“The available [empirical] evidence indicates that testimony by polygraph experts has no detrimental effects on the trial process, nor does it have an undue influence on the trier of fact. Since 1975 New Mexico has admitted polygraph evidence without a stipulation between the parties. Ten years of experience [1975 to 1985] has failed to reveal any inherent problems with that type of evidence.”); R. Peters, “A Survey of Polygraph Evidence in Criminal Trials,” 68 A.B.A. J. 162, 165 (1982) (on basis of empirical study conducted in Wisconsin, one commentator has indicated that “[t]he actual trial results clearly support, the belief that juries are capable of weighing and evaluating all evidence and rendering verdicts that may be inconsistent with the polygraph evidence”).
The illogic of the majority’s opinion is highlighted in its response to this concurring and dissenting opinion, where the majority indicates that a per se rule does not violate a defendant’s constitutional right to present a defense. The majority states that “as a matter of logic, there can be no constitutional right to an evidentiary hearing regarding evidence that, as a matter of law, is inadmissible.” See footnote 80 of the majority opinion. In other words, based on the majority’s circular reasoning, the defendant’s right to present a defense can be subverted merely by the court deciding, as a matter of state law, that exculpatory evidence is not admissible. Not only is that reasoning illogical, it is also devious.
Some of the procedural safeguards for the admission of hypnotically refreshed testimony are: (1) a qualified person performed the hypnosis; (2) an *162audiotape or videotape was made before, during and after the hypnosis was conducted; (3) cross-examination to reveal inconsistencies is allowed; and (4) the jury is educated about the risks of hypnotically refreshed testimony through the use of opposing expert testimony and cautionary instructions. Rock v. Arkansas, supra, 483 U.S. 60-61. These same safeguards, among others, can be used in the admission of polygraph testimony.
“The holding in Rock v. Arkansas [supra, 483 U.S. 44] should be significant in the reconsideration of polygraph evidence because it could dispel the longstanding judicial hostility toward such evidence. This negative attitude is akin to that historically taken toward hypnotically refreshed testimony, and Rock teaches that the Sixth Amendment requires courts to give more positive treatment toward a previously hypnotized witness. If the putative Sixth Amendment right of a defendant to present reliable polygraph evidence is acknowledged, courts must consider polygraph evidence with a different attitude.” J. McCall, supra, 1996 U. Ill. L. Rev. 406. “[T]he important points from Rock on this issue are that the denial position probably violates the Sixth Amendment and that sophisticated judicial and legislative efforts should now be made to limit admission of polygraph evidence so that only the most reliable evidence of this type is admitted.” Id., 406 n.309.
With respect to the defendant’s right to lay the foundation for the admission of the polygraph evidence, the Schaffer court stated: “[W]e, like the Fifth Circuit, cannot determine ‘whether polygraph technique can be said to have made sufficient technological advance in the seventy years since Frye to constitute the type of “scientific, technical, or other specialized knowledge” envisioned by Rule 702 [of the Federal Rules of Evidence] and Daubert.’ United States v. Posado, [supra, 57 F.3d 433]. We will never know, unless we give [the defendant] an opportunity to lay the foundation.” United States v. Scheffer, supra, 44 M.J. 446.
Although the defendant did not testify in this case, his credibility was at issue as a result of the introduction by the state of his exculpatory out-of-court statement. Furthermore, since the decision to exclude the polygraph evidence was made in a ruling on a pretrial motion, there was no need for the defendant to offer his own testimony as a predicate to raising the question of whether he was entitled to a hearing on the issue of admissibility.
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
The replacement pages appear in the Connecticut Law Journal, Vol. 53, No. 52, pp. iii-iv (June 24, 1997). The original version of the page, without the change, appears in the Connecticut Law Journal, Vol. 53, No. 47, p. 92 (May 20, 1997).
Provided, however, that the court does not trample on constitutional rights.