dissenting.
A series of trial errors compounds the problem discussed by Justice Brown in his dissent, with which I join. The cumulative effect of these additional occurrences deprived Haselhuhn of a fair trial. Schmunk v. State, Wyo., 714 P.2d 724 (1986). Therefore, I further dissent by addressing arguments I, III, V, and VI, presented in the appellant’s brief.
“ * * * It is a fundamental facet of due process that a defendant charged with a crime be afforded the right to establish and present a defense.” State v. Delgado, 8 Conn.App. 273, 513 A.2d 701, 706 (1986).
See also State v. Corchado, 188 Conn. 653, 453 A.2d 427 (1982).
ARGUMENT I
Denial of the Motion for A Continuance
A substantial number of appeals have been heard by this court recently which raised the issue of whether a continuance should have been granted. The frequency with which district courts have been denying substantive motions for continuance is alarming, as is the frequency with which this court affirms where fairness, due process and justice are denied. Gentry v. State, Wyo., 724 P.2d 450 (1986), Urbigkit, J., dissenting; Tageant v. State, Wyo., 683 P.2d 667 (1984); Sims v. State, Wyo., 530 P.2d 1176 (1965).
On the day before trial, Haselhuhn’s lawyer first learned that the two eyewitnesses, Safeway employees Mr. Barney and Ms. Shively, had been hypnotized in an effort to enhance their recollections of the robber’s appearance.1 This hypnosis occurred after Mr. Barney had been unable to identify the defendant Haselhuhn in a photo line-up and before his positive identification at the preliminary hearing. Haselhuhn’s attorney quickly enlisted an expert witness from Lakewood, Colorado, to testify on the effects of hypnosis. However, that witness was unable on such short notice to make the trip from Lakewood to Green River, Wyoming. In order to secure the needed testimony only then recognized, counsel immediately presented a motion for continuance with an affidavit and an overview of that proposed testimony. The motion for continuance was rejected by the court. Denied a minimal opportunity to counter a significant development known only at the last moment involving a clearly questionable trial event, the resulting inability to present available expert testimony singularly affected the fairness and due process of the criminal trial.
In this case, the generally established criteria for determining whether or not there has been a violation of court discretion in denying a continuance align in appellant’s favor:
(A) Substantial prejudice to the litigative rights of the movant party. Tomash v. Evans, Wyo., 704 P.2d 1296 (1985); Urich v. Fox, Wyo., 687 P.2d 893 (1984); and other cases cited in the dissent in Gen*290try v. State, supra. The witnesses against the appellant had been hypnotized by a maintenance person at Pacific Power and Light Company who had taken one 32-hour course to learn his craft. This is a perfect example which merits application of Justice Brown’s advice in his specially concurring opinion to his own majority opinion in Pote v. State, Wyo., 695 P.2d 617, 632 (1985), that “People who do not know what they are doing ought not ‘monkey around’ with hypnotism lest they jeopardize an important case and cost the state a lot of money.” 695 P.2d at 632. Haselhuhn had a substantial interest in presenting evidence to explain how the hypnotic session may have distorted the witness’ recollection and instilled in the witness a suggestion that the accused had committed the crime. His attorney explained to the trial court:
“ * * * [Y]ou don’t need to have the witness’s story changed in order to have hypnosis take an effect. * * * [Ijt’s possible simply to enhance the witness’s own belief in what he — in whatever story it is that he is telling. And I submit to the Court that a careful review of the evidence we got indicates that’s just what happened — has happened in the case of Mr. Barney. As time went by he progressed from an uncertain identification to one that he’s dead positive of now. And we’ve observed in the record here the very effect that the doctor has warned about.”2
(B)Presence or absence of contributory responsibility of the litigant to the prejudice. Sharp v. Sharp, Wyo., 671 P.2d 317 (1983); Cates v. Eddy, Wyo., 669 P.2d 912 (1983); Craver v. Craver, Wyo., 601 P.2d 999 (1979); and other cases cited in the dissent in Gentry v. State, supra. The appellant did not contribute to the prejudice. The appellant lacked the knowledge and a way of obtaining the knowledge that the two witnesses had been hypnotized. A continuance was necessary to allow the appellant to prepare a defense.
(C) Fairness and justice to the opposing litigant. Higgins v. Johnson, Fla.App., 422 So.2d 16 (1982); Winkelman v. Allen, 214 Kan. 22, 519 P.2d 1377 (1974); Bairas v. Johnson, 13 Utah 2d 269, 373 P.2d 375 (1962). The opposing litigant, the State, would not have suffered a denial of fairness and justice had a continuance been granted. No showing was made that any witness or evidence would have been lost because of a continuance, or that the State would have been otherwise prejudiced.
(D) Court docket control and maintenance, and the general necessity of reaching a conclusion. Gentry v. State, Urbig-kit, J., dissenting, supra. The grant of a continuance to allow the appellant’s proposed expert witness an opportunity to travel to Green River would have been sufficient. Court docket control should not prevail over the right of an appellant to present a defense, United States v. Burton, 189 A.D.C. 327, 584 F.2d 485, 489 (D.C.Cir.1978), cert. denied 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979), nor over the interests of justice. Budget Laundry Company v. Munter, 450 Pa. 13, 298 A.2d 55, 59-60 (1972), Roberts, J. concurring.
I agree with Justice Brown and Justice Rose, dissenting in Gee v. State, Wyo., 662 P.2d 103, 107 (1983):
“Discovery during trial that a state’s witness has been hypnotized is useless information. Advice that a witness has been hypnotized immediately before trial is not much better. When a defendant’s counsel receives late information on hypnotism, his ability to prepare for trial is impaired. He needs time to prepare cross-examination questions, consult and perhaps call expert witnesses of his own, review the law, check circumstances surrounding the hypnotic sessions, check the qualifications of the person who hypnotized the witness, and review the record of the hypnotic session. Such a process cannot be accomplished immediately before trial or during trial.
*291“When the ability to prepare for trial is impaired, the right to effective counsel guaranteed by the Sixth Amendment of the United States Constitution is rendered meaningless. The difficulty of adequately cross-examining a previously hypnotized witness constitutes a serious infringement of the right of confrontation.”
I also agree that:
“[T]he State should have an affirmative duty to specifically advise defendant of the hypnotism before trial; making the State’s files available to defendant is not sufficient to discharge that duty.” 662 P.2d at 107.
We have recently defined discretion criteria in Martin v. State, Wyo., 720 P.2d 894 (1986) as a composite of many things, among which are conclusions drawn from objective criteria as right under the circumstances, determined from the facts of the case without being arbitrary or capricious. These objective criteria, applied to the facts of this case, define abuse of discretion as well as constitutional error, in contradistinction to the majority decision.
A continuance for the purpose of providing time for the attendance at trial of appellant’s expert witness on hypnotism was indispensable for constitutionally required due process, fairness and justice. Neither the Wyoming Constitution in Art. 1, § 7 (no absolute, arbitrary power), and Art. 1, § 10 (right of accused to defend), nor the United States Constitution in Amendments V, VI and XIV countenance this roughshod violation of procedural due process. See People v. Sorscher, 151 Mich.App. 122, 391 N.W.2d 365, 369 (1986), “so long as the defendant is allowed to establish the fact of hypnosis and to introduce expert evidence regarding the inherent possibility of confabulation” the danger (of affected recall) is minimized. In this case, not only was evidence as tainted by hypersuggestibility and hypercompliance then used against the defendant, but he was denied an indispensable responsive opportunity to present knowledgable expert testimony in defense. See discussion of hypnotically enhanced identification by the majority, and concurring and dissenting comments in Vester v. State, Tex.Cr.App., 713 S.W.2d 920 (1986). See also Harker v. Maryland, 800 F.2d 437 (4th Cir.1986); Beck v. Norris 801 F.2d 242 (6th Cir.1986); State v. Moreno, Hawaii, 709 P.2d 103 (1985); Recent Developments, State v. Moreno: The Admissibility of Hypnosis Enhanced Testimony in Hawaii, 8 Hawaii L.Rev. 655 (1986).
ARGUMENT III
Nondisclosure of Exculpatory Information
This issue raised several violations of the prosecutor’s duty to abide by his constitutional obligation to assist the defendant in a fair presentation of his case under Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Bagley, — U.S. -, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). In addition to the failure to disclose the use of hypnosis, Gee v. State, supra, the prosecutor purposely did not disclose to the defense that the State’s witness, Dean Hunter, had told the police officer that Haselhuhn was at his home approximately the same time that the robbery was occurring. The police officer did not make a written record of the statement, and the defense first heard Mr. Hunter’s statement during trial.
The majority conclude that this information was not material because Haselhuhn also knew that he (Haselhuhn) was at Hunter’s home on the night of the robbery. That conclusion is at best faulty and perhaps further described as totally unjustified. It is not what Haselhuhn knew that is of issue but rather what confirmatory information, if available, could be supportive to his testimony. This is the essence of the prosecutorial duty to disclose.
“The question of the materiality of evidence in the prosecutor’s control arises in ‘three quite different situations,’ [United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976)]. First, where the prosecutor has knowingly used perjured testimony, the judgment *292must be set aside ‘if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ Id. at 103-104, 96 S.Ct. at 2397. Second, where defendant has made a specific pretrial request for exculpatory evidence, the judgment must be set aside if ‘the suppressed evidence might have affected the outcome of the trial.’ Id. at 104, 96 S.Ct. at 2397 (emphasis added); see id. at 104-06, 96 S.Ct. at 2397-98. Third, where defendant has made ‘a general request for Brady material,’ or has made no request at all, the judgment must be set aside ‘if the omitted evidence creates a reasonable doubt that did not otherwise exist.’ Id. at 112, 96 S.Ct. at 2401 * * Chaney v. Brown, 730 F.2d 1334, 1339-1340 (10th Cir.), cert. denied 469 U.S. 1090, 105 S.Ct. 601, 83 L.Ed.2d 710 (1984).
In this case, the appellant made a general request for Brady information, invoking the standard discussed in Chaney. Hunter’s testimony could create and likely would have created a reasonable doubt, especially if the defendant had been given the information before trial so he could subpoena or at least question the other participants in the trivial-pursuit game at Hunter’s house regarding their recollection of the time that he stopped by to use the telephone. The majority assume that because Hunter remembers where Haselhuhn was on a certain date at a certain time, Haselhuhn would also identically remember. Each of us has a different capability or a different reason for recalling dates and events. The criminal complaint and warrant were issued on June 6, 1984 for a crime committed on April 21, 1984. It is reasonable to believe that Haselhuhn did not know exactly what time he stopped at Hunter’s house to use the phone on April 21, six weeks before the complaint was filed against him, as is reasonably found with the average person who may not reconstruct his exact whereabouts on a date six weeks past.
The information, which Hunter gave to the police and of which the policeman chose not to make a record, located Haselhuhn at a place other than the crime scene at the time of the crime. Certainly it was exculpatory, and, since it established an alibi, the evidence created a reasonable doubt that did not otherwise exist. When corroborated by other witnesses, a leak-proof defense might have existed if the facts known to the police and prosecution had been made available to the defense.
The opinion of the court can be construed to encourage law enforcement officers to deliberately exclude exculpatory evidence from police records as a means of avoiding the requirements of Brady. A reversal on this point would send law enforcement officers a different signal. United States v. Bagley, supra. Criminal prosecution rather than a game of one-upmanship is the most solemn responsibility of society in enforcing its rules of behavior while affording constitutional rights of the individual charged with the violation. Constitutions, not sporting events, set the determinative standards and principles. Either we have a society ennobled by consistent rules, or a despotism of individual arrogance. As a society, we should not choose to travel the road by paving the pathway with violated principles justified by good intentions. In violation of societal standards, the enforcer lowers himself to an equivalency standard of the accused criminal.
ARGUMENT V
Evidence of The Polygraph Test
The court quotes the portion of the transcript wherein the jury was informed that a polygraph examination had been administered to a suspect in the robbery, and then concludes that the plain-error criteria of Hampton v. State, Wyo., 558 P.2d 504 (1977) are not satisfied and that the error was invited by Haselhuhn. Our reasoning that the plain-error criteria were met will require a more detailed explanation of the facts.
During the week after the robbery, the investigating detective received the message that a Sweetwater County Jail prisoner wanted to visit with him. The prisoner, *293Milt Albaugh, told the detective that his son Rick Albaugh knew about the robbery, that Haselhuhn and co-defendant Rick Prime had committed the robbery, and “that they threw all the weapons and the clothing and everything else in the Black’s Fork River.” Rick Albaugh later gave the detective the same information, told the detective that he knew where the search of the river was being conducted, and to continue searching at that location. The detective testified that Rick wanted to work a deal to get his father out of jail.
After a concentrated search of the specified location, the police eventually found a sawed-off .20-gauge shotgun in the river. Ownership was traced through the gun’s serial number to John Hamilton. Hamilton passed a polygraph examination concerning how his gun got into the river, and the State asserted at trial that the shotgun retrieved from the river was not the one used in the robbery. The jury was told that Hamilton passed a polygraph examination about his explanation why his sawed-off shotgun was in the river, but the jury was never given that actual explanation:
“Q [By the Prosecutor]: What reason did he [Hamilton] give for throwing the shotgun in the river?
“A [The Detective]: If my memory serves me correctly — this is just what I’m getting from detective Thompson, that he had bought the shotgun and—
“Q I’ll tell you what. Let's let Detective Thompson, I assume that he’ll be called, let’s let him explain.”
Detective Thompson was never called.
« * * * when review is sought under the plain error doctrine, this Court must be able to discern from the record, without resort to speculation or equivocal inference, what occurred at trial, that is, we are entitled to know the particular facts. [Citations.] Further, the proponent of plain error must demonstrate the existence of a clear and unequivocal rule of law which the particular facts transgress in a clear and obvious, not merely arguable, way. [Citations.] If these criteria are met, the error or defect must adversely affect some substantial right of the concept procedurally expressed in Rule 49(a), W.R.Cr.P. [Citations.]” Hampton v. State, supra, 558 P.2d at 507.
The first two criteria of Hampton are clearly present. The transcript has fully revealed what occurred at trial. The jury was told that Mr. Hamilton explained how his shotgun got into the Black’s Fork River, that a polygraph examination was run on Hamilton, and that he “passed” — that the polygraph didn't indicate that he was lying. Second, there is a clear and unequivocal rule of law which these facts clearly transgress.
“Generally, the results of a polygraph examination are not admissible in evidence. Cullin v. State, Wyo., 565 P.2d 445, 455 (1977). Improper reference to the results of a polygraph examination has been held reversible error. See, e.g. Birdsong v. State, Okla.Crim.App., 649 P.2d 786 (1982); State v. Green, 271 Or. 153, 531 P.2d 245, 92 A.L.R.3d 1301 (1975). We have approved, upon stipulation of the parties, admission of the results of a polygraph examination. Daniel v. State, Wyo., 644 P.2d 172, 178 (1982); Cullin v. State, supra, at 455. In the absence of a stipulation for admission, a conviction must be reversed when the results of a polygraph are revealed to the jury. State v. Sutherland, 94 Wash.2d 527, 617 P.2d 1010 (1980); State v. Kilpatrick, 2 Kan.App.2d 349, 578 P.2d 1147 (1978). The reluctance to admit the results of a polygraph or ‘lie detector’ examination stems from the fact that the results of these examinations have not been established as reliable. It also stems from a fear that jurors may give too much weight to the results of the examination, even perhaps accepting it as proof of guilt or innocence.” Schmunk v. State, 714 P.2d at 731.
Finally, the error adversely affected a substantial right of the accused. The jury was informed by a police officer that another investigating officer was convinced that *294Hamilton, who never testified, was telling the truth in a polygraph examination regarding how his shotgun came to be in the Black’s Fork River. Not only was Hasel-huhn denied the right to cross-examine Hamilton, but the statement included one officer’s testimony regarding another officer’s evaluation of the veracity of the out-of-court statement of another person who was himself a potential suspect, then to be substantiated by a questionable polygraph exam. See Schmunk v. State, supra. This is simply not creditable evidence material to the trial issues upon which defendant was convicted. The fact that Milt Albaugh, who was in jail when the crime was committed, knew that a shotgun was used to commit the crime and knew that the shotgun was in the Black’s Fork River at a particular location, and the fact that the shotgun was found at that location, are too corroborating to allow the jury to rely on the investigating officer’s conclusion, substantiated by polygraph, that this particular shotgun was not used in the robbery. The testimony violated Haselhuhn’s Sixth Amendment right to cross-examine another potential suspect. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, (1975). I am satisfied that the plain-error criteria of Hampton v. State, supra, have been met by the appellant. Additionally the believability quotient of the total events reminds us why polygraph is rejected as scientifically reliable. Everyone in Sweet-water County is not in the habit of leaving sawed-off shotguns in Black’s Fork River3 at the identical place where the informant said the robbery weapon could be found. The old expression, “You lie, and I will swear to it,” might be replaced by “You lie, and we will prove it is true by polygraph.” State v. Beachman, 189 Mont. 400, 616 P.2d 337 (1980). See, however, Sevilla, General Symposium, The Polygraph and the Courts, Polygraph 1984: Behind the Closed Door of Admissibility, 16 U.W.L.A. L.Rev. 5 (1984).
“In sum, while the polygraph shows promise, the research on its validity is too limited in quantity, relevance, and generalizability to support its use as evidence. Further, problems with drugs, countermeasures, effects of repeated testing, friendly polygrapher effects and the statistical rates of true guilt, suggest the lie detector results could be very misleading to triers-of-fact. Additionally, problems with biases against innocent subjects and anticipated hung trials and court costs argue that as a matter of social policy, this evidence will simply cost too much. The current data do not support the necessity of creating a new forensic industry: the truth business.” Beaber, General Symposium, The Polygraph and the Courts, Not Guilty by Reason of Polygraph, 16 U.W.L.A.L.Rev. 27, 35 (1984).
ARGUMENT VI
Co-defendant’s Invocation of The Fifth Amendment
Appellant’s final assertion of error is an example of prosecutorial misconduct which should not be accepted by this court. Appellant’s co-defendant, Rick Prime, who was scheduled for trial after the appellant, was subpoenaed as a witness by the State. Four days before appellant’s trial began, Rick Prime’s attorney notified the prosecutor in writing of Prime’s intention to exercise his Fifth Amendment rights and to remain silent at appellant’s trial in response to each and every question. Despite this notice, Prime was called by the State, appeared at appellant’s trial and invoked his Fifth Amendment rights in front of the jury when he was sworn in as a witness. This obviously would have an effect on the jury and consequently elicited a reaction from counsel for defendant:
*295“Your Honor, if I might be heard on it. It’s my opinion, Your Honor, that simply calling this man [Rick Prime] to have him stand in front of the jury and take the Fifth is in and of itself testimonial. And aside from that, I don’t think I need to talk at all about the prejudicial effect that’s going to have on the jury. The Court was there yesterday and saw what happened with the jury when Rick Prime took the Fifth when he was sworn in. And I think for the prosecution to call a witness under these circumstances, knowing what they know, is tantamount to prosecutorial misconduct.”
It is not possible to discern from the record how the jury reacted. Everyday experience bears out the prejudicial effect which this probably had on the jury which apparently the defense attorney observed. The most offensive part of this is the prosecutor’s advance knowledge that the co-defendant would remain silent and then his blatant use of that co-defendant to prejudice the jury in appellant’s trial by a kind of nontestimonial evidence.
This is probably the most egregious error of all defects found in this record. This is the “If you do not have the evidence, try prejudice” prosecutorial opportunity. The courtroom event of that individual later to be identified as a co-conspirator, in being called before the jury at that early stage to take the oath of a witness with anticipated and realized Fifth Amendment response, probably determined the jury verdict before any evidence was ever introduced. The testimony of the defendant when given later had essentially been destroyed in advance.
The Washington Supreme Court has explained the rule which applies here:
“ * * * It is forbidden for a prosecutor to call a witness, knowing that the witness will invoke privilege, for the purpose of having the jury see the witness exercise his constitutional right. DeGesualdo v. People, 147 Colo. 426, 364 P.2d 374, 86 A.L.R.2d 1435 (1961); State v. Mitchell, 268 Minn. 513, 130 N.W.2d 128 (1964), cert. denied 380 U.S. 984, 85 S.Ct. 1351, 14 L.Ed.2d 276; United States v. Tucker, 267 F.2d 212 (3d Cir.1959); United States v. Maloney, 262 F.2d 535 (2d Cir.1959). It is also error for the prosecutor to call a co-defendant, knowing that he will invoke the privilege. See State v. Tanner, 54 Wash.2d 535, 341 P.2d 869 (1959). There is no reason for distinguishing these cases on the basis that the party calling the witness was the government.” State v. Smith, 74 Wash.2d 744, 446 P.2d 571, 581 (1968), judgment vacated in part, 408 U.S. 934, 92 S.Ct. 2852, 33 L.Ed.2d 747 (1972), and overruled on other grounds sub nom. State v. Gosby, 85 Wash.2d 758, 539 P.2d 680 (1975).
The Michigan Supreme Court has explained the reason for the rule:
“ * * * The American Bar Association standards relating to the prosecution and defense functions provide that it is unprofessional conduct for a prosecutor or a lawyer representing a defendant
# * * * * *
“ — ‘to call a witness who he knows will claim a valid privilege not to testify, for the purpose of impressing upon the jury the fact of the claim of privilege.’
“The rationale of the rule has been explained by the Supreme Court of Iowa:
“ ‘When an alleged accomplice invokes the privilege in the presence of the jury, prejudice arises from the human tendency to treat the claim of privilege as a confession of crime, creating an adverse inference which an accused is powerless to combat by cross-examination.’ State v. Allen, 224 N.W.2d 237, 241 (Iowa, 1974).
“A number of state courts have reversed convictions where a prosecutor called an accomplice knowing that he would exercise his Fifth Amendment privilege. State v. Duhon, 332 So.2d 245 (La.1976); Johnson v. State, 158 Tex.Cr.R. 6, 252 S.W.2d 462 (1952); DeGesualdo v. People, 147 Colo. 426, 364 P.2d 374, 86 A.L.R.2d 1435 (1961). Cf. State v. Vega, 85 N.M. 269, 511 P.2d 755 (Ct.App.1973).” *296People v. Giacalone, 399 Mich. 642, 250 N.W.2d 492, 494-495 (1977).
See also People v. Dyer, 425 Mich. 572, 390 N.W.2d 645 (1986).
None of the recognized exceptions to the rule of law are present in this case. See, People v. Scheldt, 182 Colo. 374, 513 P.2d 446 (1973), where the prospective witness had been granted immunity and the State was not required to assume that the witness would violate the rule by refusing to testify. See also State v. Moya, 138 Ariz. 7, 672 P.2d 959 (1983), where the prosecutor had no prior knowledge that the witness would invoke her Fifth Amendment privilege to remain silent. Comment, Exercise of the Privilege Against Self-Incrimination by Witnesses and Codefendants: The Effect Upon the Accused, 33 U.Chi.L.Rev. 151 (1965).
The citation of Hopkinson v. State, Wyo., 632 P.2d 79 (1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982), is weak or nominal authority to contravene the.well-established general principle relating to prejudice in exposing a non-testifying witness to the jury as a form of nonverbal testimony for prosecutorial jury impact.
“ * * * The jury may think it high courtroom drama of probative significance when a witness ‘takes the Fifth.’ In reality the probative value of the event is almost entirely undercut by the * * * fact that it is a form of evidence not subject to cross-examination.” Bowles v. United States, 142 A.D.C. 26, 439 F.2d 536, 541-542 (D.C.Cir.1970), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971).
It is noted that the author of the majority opinion has recently authored a highly emotional philosophic dissent in Chambers v. State, 726 P.2d 1269 (1986). Differing completely, I would believe that procedural due process cannot suitably be measured by self-determined guilt in abject disregard of recognized constitutional, statutory and procedural standards.
Only as a recognition of that dissent which is here applied, I would believe that the state and federal constitutions and Bill of Rights cannot be denigrated so that they become available only if innocence is first empirically accepted by the appellate tribunal. This is result-oriented adjudication of the rankest kind. Albert Einstein said it well: “Whoever undertakes to set himself up as a judge in the field of truth and knowledge is shipwrecked by the laughter of the gods.”
Critically obvious is the fact that the jury decides with the evidence presented. To say that in believing the defendant to be guilty I then say that the jury was not misled by failure of due process and proper evidence is only to challenge the right and reason of the jury in a fairly conducted trial inquiry. If this is not so, then why did the framers of our constitutions, both state and federal, mandate a right not only of fairness and due process, but of criminal conviction to be accomplished through the jury decision. I cannot accept in this case or any criminal proceeding that there is to be a supervening standard that the end justifies the means. I do know with historical perspective, as more recently demonstrated in the world in crisis and near extinction of the 1930’s and 1940’s, that the road to hell can truly be paved with self-defined good intentions.
It is a curiosity of high improbability that combined in affirmance of the conviction of Haselhuhn in this case is hypnosis, polygraph, denied continuance, withheld information, and testimony by Fifth Amendment. If he is guilty, which is certainly in some question on this record, then conviction can surely be achieved in a proper trial, with fairness and due process.
Based on this accumulation of errors, several of which are reversible in and of themselves, I would reverse.
. The hypnotist, a maintenance person at a local power plant, experienced and trained by a 32-hour home course, was admitted by the prosecution to be unqualified as an expert.
. See People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 272, 723 P.2d 1354, -, cert. denied 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114 (1982).
. Black’s Fork River is a small mountain stream headwatered in the Wasatch Mountains in Utah, running generally easterly through Uinta County and western Sweetwater County in Wyoming to join with the Green River. It is not a likely place for two people to each deposit a sawed-off shotgun at about the same location within its approximately 70-mile journey in western Wyoming.