specially concurring.
I concur in the result because I am constrained to do so by virtue of State v. Valdez, supra. I do believe, however, that the time has come for our Supreme Court to re-examine its ruling in Valdez as was done by the New Mexico court in the case of State v. Dorsey, 88 N.M. 184, 539 P.2d 204 (1975)1 and hold that the results of a lie detector test may be admitted into evidence without the necessity of a stipulation by the parties.
A trial is supposed to be a search for the truth. A mechanistic approach to the rules of evidence often thwarts the purpose of a trial and leads to injustice. For example, in a series of 312 paternity cases in Chicago, 93% of the 589 parties and witnesses admitted to a polygraph examiner that they had lied in court. G. Schatkin, Disputed Paternity Proceedings (Supp. 4th ed. 1976). This is an appalling indictment of our system of jurisprudence but comes as no surprise.
A comprehensive article on the admissibility of polygraph evidence is contained in 26 Hastings L.J. 917 (1975) “Admissibility of Polygraph Evidence in 1975: An aid in Determining Credibility in a Perjury-Plagued System”. In this article the author, Barry Tarlow, points out that there has been judicial recognition of the reliability of the polygraph technique. In United States v. De Betham, 348 F.Supp. 1377 (S.D.Cal.1972), aff’d, 470 F.2d 1367 (9th Cir. 1972), cert. den., 412 U.S. 907, 93 S.Ct. 2299, *45736 L.Ed.2d 972 (1973), the trial court recognized that the technique was extremely accurate if conducted by a competent examiner. The court also cited J. Reid and F. Inbauh, TRUTH AND DECEPTION (1966) whose authors reversed their opinion made 13 years ago that the polygraph evidence should not be admissible. The high degree of accuracy of the polygraph was also recognized in United States v. Ridling, 350 F.Supp. 90 (E.D.Mich.1972). Scientific evidence of accuracy is plentiful.2
It would seem that a theory which has developed past the experimental stage to “general use” in science or industry should be admissible in court. See, United States v. Zeiger, 350 F.Supp. 685, 688 (D.D.C.1972). In State v. Valdez, supra, our Supreme Court recognized that the polygraph has attained such a level of accuracy as to justify admission upon stipulation. If it is reliable enough for stipulation, why is it not reliable for trial? Such a distinction is not meaningful.
The major policy objections to the admissibility of lie detector evidence are (1) its reliability and accuracy have not been established by controlled experimental verification; (2) polygraphy remains an art with unusual responsibility placed upon the examiner; (3) it is possible that there are means of “beating” the test; and (4) the function of the jury is usurped if the results of the test are admissible. Each one of these objections is met and answered by Tarlow in his Hastings Law Review article. Specifically, numerous controlled systematic studies have been recorded. For example, in the study by John Reid and Frank Horvath, the results which established the polygraph’s extremely high accuracy were corroborated by the strongest possible objective evidence, actual confessions. Reid and Horvath, “The Reliability of Polygraph Examiner Diagnosis of Truth and Deception”, 62 J.Crim.L.C. & P.S. 276 (1971). Furthermore, in a situation in which the results were obviously susceptible of objective evaluation it was found that the polygraph was accurate in excess of 93% of the time. Lykken, “The GSR in a Detection of Guilt”, 43 J. Applied Psych. 385-388 (1959).
It is incorrect to suggest that interpretation of polygraph charts as opposed, for example, to the analysis of handwriting or ballistics, is essentially subjective, varying from polygrapher to polygrapher. Tests have shown this conclusion to be incorrect.
The objection that someone can beat the test is not that serious. According to one study, attempts to deceive the polygraph, even by those who are guilty, occur less than 20% of the time and are easily detected. Barland & Raskin, “Detection of Deception”, in Electrodermal Activity in Psychological Research 435 (W. Prokasy and D. Raskin eds. 1973).
There are three answers to those who fear usurpation of the jury function through undue reliance by the jury on polygraph evidence. First, if a polygraph examination conducted by a competent examiner is as accurate as indicated, it merits substantial reliance in a process whose primary purpose is to search for truth. Second, recognized experts in the field agree that the administration of justice would not collapse but would improve with the introduction of polygraph evidence.3 The polygrapher, like any other expert witness can be cross-examined and his deficiencies, if any, pointed out to the jury. Third, the concern for the “overwhelming impact” of the polygraph may be greatly exaggerated in view of several actual cases in which it was admitted.4
The results of the lie detector test are nothing more than the opinion of an expert witness based upon scientific data. I would venture to say that the opinion of the polygrapher is probably just as reliable as the opinion of a psychiatrist as to whether *458or not a person is legally insane and just as reliable as eyewitness testimony. I cannot see how we can continue to ignore this evidence and should not do so if we are sincere in making a trial a search for the truth rather than a game of “who-can-lie-the-best”. I would hold that if a proper foundation is laid as to the competency of the polygrapher, the lie detector test is admissible without stipulation.
HATHAWAY, J., concurs.. See, 26 Hastings L.J. 931-934.
. For example, see Commonwealth v. A. Juvenile, 365 Mass. 421, 313 N.E.2d 120 (1974); State v. Alderete, 86 N.M. 176, 521 P.2d 138, 142 (1974) [this New Mexico case was overruled but the case overruling it was itself overruled by State v. Dorsey, supra.]
. 26 Hastings L.J. at 968.