(dissenting):
It is my judgment that the reversal of this conviction and the outright release of the defendant without any actual determination as to his guilt or innocence is a defeat of the processes of justice.
My view is in direct contrast to the main opinion’s statement that “the trial judge clearly indicated . . . that the polygraph evidence made the decisive difference between conviction and acquittal . . .” It is submitted that an examination of the trial court’s discussion of the evidence will reveal that he did not actually confront nor pass upon the issue, nor indicate that he would find the defendant not guilty, in the absence of the polygraph evidence.
The statements quoted in the main opinion were made in relation to his consideration of that total evidence in the case as he then saw it, including the polygraph evidence; and most importantly, it is obvious from his statements that he was very much concerned with, if not practically entirely preoccupied with, the use and value of polygraph evidence.
In regard to the polygraph evidence the court stated:
That’s why I’m giving particular stress and reliance, because I have confidence in it, in the polygraph test. I’m specifically stating this for the record so that it will be available as to reasons for my decision,
that it might be some reasonable doubt simply on belief if you have only the two parties, but I believe that the reasonable doubt is eliminated by the polygraph test, will accept it, and for the reasons just stated will find the defendant guilty. [All emphasis herein added.]
It is submitted that the fair and reasonable conclusion to be drawn from that statement is that the court was posing a hypothesis: that if there had been no polygraph evidence, there “might be some reasonable doubt,” but that upon the basis of the evidence that had been presented, any doubt which might have existed was eliminated by the polygraph test; and that, due to the fact that he was much concerned with indicating his personal belief in the validity of the test, he was using the situation to express support for his views as to its value. But his hypothesis that if there were no polygraph evidence, there “might be some reasonable doubt” is in my opinion far short of “a clear indication” that his mind confronted and ruled upon the question of the defendant’s guilt or innocence in the absence of polygraph evidence.
Let it be assumed that the trial court made an error in admitting evidence, and/or as to the rule of law as to how that evidence should be considered, these basic propositions remain: that upon consideration of the evidence then before it, the court found the defendant guilty beyond a reasonable doubt; and that neither that court, nor any trier of the facts, has passed upon, or had an opportunity to pass upon the defendant’s guilt or innocence in the absence of any such error.
The proper function of this Court is to determine whether there was any substantial and prejudicial error and, if so found, to remand for a trial in the absence thereof to assure the defendant of a fair trial and a proper consideration of his guilt or innocence in the absence of such error.1
In order to avoid convicting the innocent, there can be no doubt about the essentiality of affording one accused of crime all of the *1000rights and protections provided by law. The other side of that coin is that the court should be equally concerned with the interests of the victim, her family and the public, who are also entitled to fair treatment.2 In order to guard against the possible freeing of a man who may be guilty of a crime of brutal violence, there ought to be a forthright confrontation and determination of that critical issue. Both our statutory and decisional law enjoin that there should be no nullification of such a judgment merely because there may have been some error or irregularity in the trial.3
The safeguarding of the interests of both the defendant and of the public require that there be full and fair opportunity on both sides for a proper consideration of the evidence and a determination of the question of guilt or innocence. Consequently, I think the interests of justice would best be served by remanding this case for the accomplishment of that purpose.
HALL, J., concurs in the views expressed in the dissenting opinion of CROCKETT, C. J.. See Cobb v. Snow, 14 Utah 2d 170, 380 P.2d 457; State v. Lawrence, 120 Utah 323, 234 P.2d 600; United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627.
. State v. Seymour, 18 Utah 2d 153, 417 P.2d 655 and authorities therein cited.
. That upon determination of prejudicial error the defendant is entitled to a new trial, but not to dismissal of the case, see 77-42-1, U.C.A. 1953; State v. Jaramillo, 25 Utah 2d 328, 481 P.2d 394. See also statement by Justice Cardozo in Snyder v. Mass, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674.