dissenting.
The majority has failed to understand the foundation of the Supreme Court’s decisions on polygraph evidence and has thereby seriously undermined evidentiary standards for all administrative hearings. It has also failed to recognize the other flaws in the hearings officer’s credibility determination. I therefore dissent.
The question in this case is whether the hearings officer applied the proper standards and considered admissible evidence in deciding that the unnamed informant was credible. That issue is particularly important, because the use of unnamed informant evidence, although permissible in the prison setting, is susceptible to abuse. The Correction Division’s rules must “afford the inmate a reasonable opportunity for a fair hearing.” ORS 421.190. An inmate who faces an accusation from another unnamed inmate will often have little ability to respond in any way other than by simply denying the accusation. The fairness of the hearing will then depend in large part on the hearings officer’s careful evaluation of the credibility of the unnamed inmate informant and of the accused inmate. That evaluation must be based on evidence which is sufficiently reliable to be admissible and on reasoning which has a logical relationship to credibility. Both requirements are missing here.
*642I agree with the majority that OAR 291-105-041(5) establishes the same standard for evidence in prison disciplinary hearings as the Administrative Procedures Act provides for other administrative hearings, with the exception of the provision for unnamed informant testimony. ORS 183.450(1). Polygraph evidence does not meet that standard. It is not evidence on which reasonable people would rely in the conduct of their affairs. The hearings officer’s use of it and his apparent misuse of the informant’s alleged eyewitness status are fatal defects in his credibility determination. We should reverse and remand for reconsideration.
The hearings officer did not take testimony from the informant or otherwise see him. He could have done so outside of petitioner’s presence. See OAR 291-105-056(4)(a)(C). The hearings officer thus had no opportunity to judge the informant’s demeanor or to question him concerning the details of the incident or for possible bias. Although the hearings officer did have an opportunity to observe petitioner, he made no findings on the basis of petitioner’s demeanor, nor did he make an explicit finding concerning petitioner’s credibility. He gave several reasons for finding the informant credible:1
“Capt. Barth submitted to the Hearings Officer a memorandum, dated March 10, 1986, in which the inmate informant was identified, as well as the reason he considered the informant to be credible and reliable in the case at issue. Further, this memorandum contained additional information concerning the informant’s status as a past and proven informant. The Hearings Officer finds Capt. Barth’s informant to be credible and reliable in the case at issue, based on Capt. Barth’s information, and the informant’s status as an eyewitness to the incident. * * *
“In a memorandum dated March 18, 1986, Capt. Barth provided information which explained that the informant in the case at issue was administered a polygraph examination by Detective Fox of the Oregon Department of State Police. Detective Fox is a fully certified, trained, and licensed polygraph examiner under the provisions of the Oregon Revised Statutes. The polygraph examination centered around specific statements written by the inmate informant that concerned Inmate Wiggett’s involvement in the case at issue. *643Inmate Wiggett was described, amongst other issues, as having participated in assaulting Inmate Peterson in the Recreation Yard, and that he did hit Inmate Peterson on the left side of the head. It was Detective Fox’s conclusion that the informant had been truthful in the written information he provided during the course of the polygraph examination.”
The hearings officer thus relied on three grounds for finding the informant credible: In the past, he had provided information that had proved accurate; he was an eyewitness; and he had passed a polygraph examination.2 That the informant’s information had proved reliable in the past could suggest that the information in this case was also reliable. It was a factor which the hearings officer could properly consider.
The other grounds on which the hearings officer relied cannot support his decision. The informant’s supposed eyewitness status is of no value in assessing his credibility.3 The only evidence that the incident ever occurred is the informant’s statement. Thus his status as an eyewitness depends on the truth of his statement. To use his claimed eyewitness status as evidence that his statement is truthful is pure bootstrapping. Shumway v. OSP, 294 Or 462, 466 n 1, 657 P2d 686 (1983).
The remaining issue is the polygraph evidence. Under our previous cases, that evidence was inadmissible without petitioner’s consent. In Higley v. Edwards, 67 Or App 488, 492, 678 P2d 775 (1985), we held that it is error under ORS 183.450(1) to admit polygraph evidence in a contested case hearing over the objection of a party.4 The polygraph in *644Higley was also offered to bolster the credibility of an absent witness.
Since Higley, the Supreme Court has thoroughly examined the acceptability of polygraph evidence under the Evidence Code and has concluded that it is inadmissible, at least without a stipulation. State v. Brown, 297 Or 404, 687 P2d 751 (1984); but see State v. LaStair, 81 Or App 558, 726 P2d 1193 (1986), rev den 302 Or 614 (1987) (use of polygraph results for impeachment). Although Brown is not directly controlling in an administrative hearing, the court’s reasoning is relevant. It concluded from its survey of the scientific studies that
“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 poly-gram. 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.” 297 Or at 433.
Although the court conceded that the polygraph could be helpful to the trier of fact in some circumstances, it decided that the potential prejudice is too great to allow admission of unstipulated test results. It has consistently followed that position in judicial proceedings of all kinds.
When the Supreme Court, as trier of fact, had to consider the weight to give to a stipulated polygraph, it expressed serious reservations about the polygraph’s reliability and apparently gave little weight to the results. In re Herbert D. Black, 251 Or 177,186-191, 444 P2d 929 (1968). It is too easy for any trier of fact to be overpowered by the polygraph and to ignore or fail to seek other evidence relevant to credibility. State v. Brown, supra, 297 Or at 437-439. Even if the evidence is admitted, it is impossible to determine what weight to give the polygraph without considering the factors which the court described in Brown. There is no evidence on those points in this case; all the record contains is the examiner’s conclusion. The Supreme Court’s discussion and holding in Brown reinforce our holding in Higley that polygraph evidence is not admissible under ORS 183.450(1). Rather than *645overrule Higley, I would adhere to it and hold that polygraph evidence is not admissible under OAR 291-105-041(5) in the absence of a stipulation.5
In determining the undisclosed informant’s credibility, the hearings officer gave weight to two considerations which I would hold to be entitled to no weight or to be inadmissible: the informant’s supposed eyewitness status and the polygraph. As the majority shows, there is other evidence which could support his finding that the informant is credible. However, his reliance on two improper considerations requires that we remand the case for reconsideration. See Palen v. State Bd. Higher Education, 18 Or App 442, 463, 525 P2d 1047, rev den (1974). Because the majority does not do so, I dissent.
Joseph, Chief Judge, and Van Hoomissen and Newman, Judges, join in this dissent.The majority reads this statement as containing two separate findings that the informant was credible. I think it clear that the hearings officer gave several reasons to support one credibility finding.
The hearings officer listed two additional grounds in a confidential addendum to his report. I would hold that the first of those grounds is of no value for reasons which should be clear to the hearings officer from this dissent. The second could support the hearings officer’s conclusion.
The majority appears to argue only that the informant’s eyewitness status would support the reliability of the evidence if the informant was credible. I do not disagree with that conclusion. However, the hearings officer’s apparent reliance on the informant’s role as an eyewitness in determining that the informant was credible undercuts his reasoning on that point.
Petitioner did not object to the admission of the polygraph evidence. He had no opportunity to do so. The first petitioner knew of its existence was when the hearings officer told him that he was relying on it to find the informant credible. Any objection at that point would obviously have been futile. We cannot assume that petitioner consented to the admission of the polygraph evidence. Cf. Branton v. OSP, 83 Or App 571, 732 P2d 926 (1987) (petitioner agreed to take polygraph test with understanding that it would be used as evidence); Graham v. OSP, 83 Or App 567, 733 P2d 39 (1987) (petitioner did not object at hearing to use of result of polygraph test).
The majority states that polygraph evidence should be admissible, because it is particularly useful in a prison disciplinary case. That is not the proper standard. The question, rather, is whether it is the kind of evidence on which reasonable persons would rely in the conduct of their affairs. As the Supreme Court showed in State v. Brown, supra, the polygraph combines questionable reliability with an aura of authoritativeness. Such evidence, therefore, is no more useful in a prison disciplinary case than in any other proceeding. To the extent that it diverts the hearings officer’s attention from more reliable grounds for determining credibility, the polygraph’s role may be positively harmful. The Supreme Court will not permit the use over objection of a polygraph in a non-jury judicial proceeding tried to a legally trained judge; I cannot conceive that it would, nevertheless, consider it sufficiently reliable to be used in an administrative proceeding before a lay hearings officer.