concurring.
Although I agree with Judge McKay’s concurring opinion I file a separate concurrence because I believe it does not go far enough in addressing the issues presented in this appeal. I agree with Judge McKay that Fernandez’ ability to understand English is a factual finding with fair support in the record. While I also agree with Judge McKay that the question of whether petitioner knowingly and intelligently waived his Fifth Amendment right against incrimination is a mixed question of fact and law reviewable by this court, I would comply with the Court’s dictates in Sumner v. Mata, 449 U.S. 539, 551-52, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981), tying the generalities of 28 U.S.C. § 2254(d) to the specific facts of our case. We should acknowledge that although the state courts here appeared to apply the correct legal standard for determining waiver of Fifth Amendment rights, after consideration of the *568record as a whole we are convinced that their factual determination that the waiver was voluntary is not fairly supported by the record and therefore does not warrant our deference. The facts supporting such determination are ably set out in Judge McKay’s analysis of the language of the stipulation.
I also believe Judge McKay’s concurring opinion falls short by failing to analyze two issues: first, whether polygraph test results are testimonial communications; and second, whether the admission of the petitioner’s polygraph test results constituted harmless error in his criminal trial.
The Fifth Amendment privilege against self-incrimination applies only to testimonial communications; criminal defendants normally have no Fifth Amendment right against being compelled to provide physical evidence. Therefore, a criminal defendant may be required to give a blood sample to determine alcohol content, Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966), participate in a lineup, United States v. Wade, 388 U.S. 218, 221-22, 87 S.Ct. 1926, 1929, 18 L.Ed.2d 1149 (1967), and provide handwriting exemplars, Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967). But I agree with the Eighth Circuit that evidence derived from a polygraph examination is more accurately categorized as testimonial than physical. See United States v. Oliver, 525 F.2d 731, 734-36 (8th Cir.1975) (presumes testimonial nature of polygraph exam results), cert. denied, 424 U.S. 973, 96 S.Ct. 1477, 47 L.Ed.2d 743 (1976). See also Bowen v. Eyman, 324 F.Supp. 339, 341 (D.Ariz. 1970); contra United States v. Ridling, 350 F.Supp. 90, 98 (E.D.Mich.1972).1
Even though Fifth Amendment guarantees apply to the polygraph examination in question here, we still must consider whether the use of this evidence constituted harmless error in petitioner’s state court trial. In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Court held that “there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Id. at 22, 87 S.Ct. at 827. The Court in Chapman articulated the rule, however, that before a constitutional error may be characterized as harmless, the reviewing court must be able to declare that it was harmless beyond a reasonable doubt. Id. at 24, 87 S.Ct. at 828.
Nevertheless, some constitutional rights are so basic to a fair trial that their infraction may never be treated as harmless error. These rights include the right to be free from coerced or otherwise involuntary confessions. See Chapman, 386 U.S. at 23, n. 8, 87 S.Ct. at 828 n. 8. See also Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978) (“any criminal trial use against a defendant of his involuntary statement is a denial of due process of law ‘even though there is ample evidence aside from the confession to support the conviction.’ ” (emphasis in original)). The Supreme Court has emphasized that a confession may be rendered involuntary if it is extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, or by the exertion of any improper influence. Hutto v. Ross, 429 U.S. 28, 31, 97 S.Ct. 202, 204, 50 L.Ed.2d 194 (1976) (per curiam).
I agree with Judge McKay that in petitioner’s stipulation the prosecution appeared to promise to limit the use of the *569evidence obtained from the polygraph to the manslaughter charge filed at the time of the exam. I cannot conclude that the state has established that petitioner volunteered to undergo the exam with the prospect that such evidence would be used in a subsequent murder trial. Therefore, the admission of this evidence cannot be harmless error. Rogers v. Richmond, 365 U.S. 534, 540-41, 81 S.Ct. 735, 739, 5 L.Ed.2d 760 (1961). But even if petitioner’s consent to the polygraph test should be characterized as voluntary for Fifth Amendment purposes, I still cannot conclude that the use of this evidence was harmless beyond a reasonable doubt. The prosecution’s case was largely circumstantial; the dispositive issue was whether petitioner’s wife committed suicide or was murdered by petitioner. The polygraph examiner was the final state witness, and he testified, among other things, in response to direct questions regarding petitioner’s guilt, that petitioner had the highest flunking score he ever observed.
For these reasons I agree that the judgment must be reversed.
. "It is clear that the protection of the privilege [against self-incrimination] reaches an accused’s communications, whatever form they might take ..." Schmerber v. California, 384 U.S. at 763-64, 86 S.Ct. at 1832 (emphasis added). I believe that although polygraph results are physical evidence in the sense that they are derived from physiological responses to questions, such results are essentially communicative in nature. Indeed, the Supreme Court in Schmerber intimated that the physical evidence obtained from polygraph tests may be properly characterized as testimonial. See id. at 764, 86 S.Ct. at 1832 ("Some tests seemingly directed to obtain ‘physical evidence,’ for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial.”).