(dissenting). Two Milwaukee police officers are dead — both killed when they cornered a fleeing gunman who had earlier threatened to blow their heads off with the loaded revolver he leveled at them.
Both law officers were slain with bullets from the pistol of one of the officers, which the defendant had wrested from the officer during the struggle which followed the pursuit and attempted apprehension of the gunman.
Their killer, defendant James Ray Mendoza, was found guilty by a jury on two counts of first-degree murder (sec. 940.01, Stats.) — on one count for the intentional killing of Police Officer Robert Riley and on the second count for the intentional killing of Police Officer Thomas Matulis.
On appeal defendant claims the following: (1) That he was entitled to kill the two police officers in the exercise of the privilege of self-defense; (2) that the trial court erred in transferring the case for trial to another county to assure an impartial jury; and (3) that the trial court erred in not permitting defense counsel to impeach the results of a polygraph test to which defendant had stipulated — given 'by the polygraph examiner designated by defendant. Each claim of trial court error will be separately discussed.
I. SELF-DEFENSE?
Up to a point, what happened here follows the scenario of the traditional western movie depicting the lawlessness of frontier days. In those movies the town marshal proceeded often to investigate the sounds of gunfire. (In the case before us, two off-duty police officers proceeded — as was their duty — to investigate a shot that was fired.) In the films the gun-toting source of the disorder never meekly surrendered to the sheriff or mar*167shal. (Here, when asked why he fired his gun, the defendant pointed the gun at the law officers and threatened to blow their heads off.)
On film, if he did not then and there shoot it out with the marshal, the pistol-toter would flee the scene, gun in hand. (Here the defendant, keeping his revolver leveled at the officers, began such flight to avoid arrest.) In the celluloid version, despite the risk involved, the sheriff or marshal always set off in pursuit. (In the case here, the two unarmed police officers followed the escaping gunman, one officer stopping at his car to get his service revolver.) In the movies the sheriff would fire a warning shot and order the fleeing gunman to stop and surrender. (Here the two officers — admittedly believed by the defendant to be policemen — ordered the defendant to stop, but they did not shoot and defendant did not stop.)
At the movies, while there might be an earlier exchange of gunshots, the chase ended with punches thrown in a hand-to-hand struggle between the marshal and the fleeing gunman. (Here the two officers caught up with the defendant between two parked cars, and there was an ensuing struggle. The defendant testified that he was struck by the officers while he was disarmed and after he rearmed himself.)
At this point the similarity between what happened in the western movies and what happened here ends. In the films justice always prevailed when the gunman who sought to escape was overpowered and arrested. Justice had prevailed. In the case before us, the gunman prevailed and after killing two police officers, was free to resume his flight. Defendant claims he was entitled to shoot the two police officers in the exercise of the privilege of self-defense (sec. 939.48(1), Stats.).
As grounds for this privilege defendant contends the officers continued to hit him both after he had discarded his pistol during the ensuing struggle between *168the two parked cars and after he acquired the gun of one of the officers. Three Justices of this court (JJ. HEFFERNAN, DAY and ABRAHAMSON) agree that a jury could acquit this defendant under these circumstances and could find a lawful exercise of the right of self-defense under sec. 939.48(1), Stats. One Justice (C.J. BEILFUSS) finds acquittal for having acted in self-defense not appropriate, but manslaughter — causing the death of another by the unreasonable exercise of the privilege of self-defense (sec. 940.05, Stats.) an optional verdict a jury might return. Three Justices (the writer, and JJ. HANLEY and CONNOR T. HANSEN) would hold the privilege of self-defense under the statute not here applicable for the three following reasons:
1. There toas here no “unlawful interference,” as the statute requires (sec. 989.4.8(1), Stats.), with the person of the defendant by the arresting officers. When the defendant earlier pointed his loaded revolver at the police officers and threatened to blow their heads off, they had probable cause to arrest him for the felony crime of endangering safety by conduct regardless of life. See, sec. 941.30, Stats.; State v. Kuta, 68 Wis.2d 641, 648, 229 N.W.2d 580 (1975), this court holding defendant there “endangered the safety of the police officers by pointing a loaded gun at them.”
In the present case, when the defendant began his escape with his loaded gun pointed at the officers, the officers were lawfully entitled to pursue to disarm and arrest the defendant. When the officers ordered defendant to stop and surrender, they were lawfully entitled so to do. (They identified themselves as police officers, and the defendant testified he believed them to be police officers.) When the defendant did not stop but rather continued his flight, the officers were lawfully entitled to use force, even deadly force under these circumstances, to prevent the escape of the armed and danger*169ous fugitive. See, 5 Am. Jur.2d, Arrest, sec. 84, at 771-773.
When the armed gunman who had earlier threatened their lives continued to flee, the pursuing officers could have shot to prevent his flight and escape. They did not do so, and both are dead for their forbearance. For, moments later, after the defendant had rearmed himself with the gun of one of the officers, as he testified, I pointed it towards where the punches were coming from, I shot one, I turned it towards the back of me and I shot again.” Because they punched when they could have shot this defendant, two officers are dead.
When the officer shouted, “Stop, we’re police officers,” the defendant testified that “he was right behind me,” and “I turned around and I grabbed my .22 caliber and put it between my pants.” It was then, “as I started to run,” the defendant testified, “one of them grabbed me and turned me around. . . . [A]s I turned around to face them they started hitting me.” Confronting a still armed and still dangerous antagonist, who had minutes earlier threatened to blow their heads off with the gun he still had in his waistbelt, the two officers were lawfully entitled to knock the defendant out so that his hand could not travel the few inches to his waistbelt to get and use his loaded gun. It was then, and only then, according to the defendant’s own testimony, that “as they were hitting me I got my .22 out, and I threw it away.”
When, according to his testimony, the defendant reached in his waistbelt to get his gun during the scuffle, the officer with the service revolver certainly could have — if he observed the reaching — shot the defendant to prevent defendant’s hand traveling to his gun. The officer was not required to wait and ascertain the use to which the retrieved weapon was to be put. If the officers did not observe the reaching and the discarding of the gun, they were, on the information known to them, still facing an armed and dangerous antagonist.
*170Even if they knew that a weapon had been discarded, they had no reason to assume that the defendant was then and thus completely disarmed. That is, the desperado carrying two guns — or gun and knife — did not vanish with the passing of the western frontier. The general test of police action, our nation’s highest court has held, is whether the officer “acted reasonably in such circumstances.” Terry v. Ohio, 392 U.S. 1, 27 (1968). By this test, under these circumstances, the conduct of the two police officers here, from their pursuit of an armed gunman to their attempted capture of him without shooting him, was, as a matter of law, entirely reasonable.
In point of fact, the course they pursued of grappling with the defendant instead of shooting at him was less lethal and more considerate of the life of the defendant than the deadly force they could have used. When this defendant refused to stop when ordered so to do and when he reached for his waistbelt to get his loaded pistol, the officer, then at close range, could have pulled the trigger on his police revolver. He would have been lawfully entitled so to do.
But he did not shoot. Prom start to finish the arresting officers here were engaged in a continuing single-purpose endeavor to arrest this defendant without using their gun to shoot him. Given this single-purpose endeavor — to arrest the gunman who had threatened their lives — the trial court was entitled to find that pursuit of this goal by these officers could not be held to constitute “the unlawful interference with his person”— which defendant was required to have a reasonable basis to believe existed before there could be a creation or restoration of a right to “intentionally use force against another” in the exercise of self-defense in this state. (Sec. 939.48(1), Stats.)
2. Under any view of the evidence in this record, this defendant, if ever he had it, early lost and never re*171gained the privilege of acting in self-defense against these arresting officers. The three Justices of this court (JJ. HEFFERNAN, DAY and ABRAHAMSON) who would affirm an acquittal on the basis of having acted in self-defense do not deny that this defendant lost the right to act in self-defense when he pointed his loaded revolver at the two police officers and threatened to blow their heads off. That he did lose such privilege is clear. Our court has held that self-defense is a privilege, not available, for example, to an armed robber with revolver in hand who when shot at by an intended victim shoots back to prevent himself from being killed. See, Ruff v. State, 65 Wis.2d 713, 724, 223 N.W.2d 446 (1974).
The three Justices who would affirm an acquittal (JJ. HEFFERNAN, DAY and ABRAHAMSON) and one Justice (C.J. BEILFUSS) who would see only “imperfect self-defense” as an available jury option (under sec. 940.05, Stats., Manslaughter), do hold that it was here possible “. . . that the defendant regained his privilege of self-defense down the street when he dropped his gun and repeatedly told the officers that they had him and that they should stop beating him indicating that he was thereby submitting to arrest.”
The majority refers to the statute which provides that the privilege of self-defense “. . . lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his assailant. . . .” (Sec. 939.48(2) (b), Stats.) The majority does not see the lost privilege regained at any time when the defendant fled the pursuing officers, not even at the point in time when they cornered him between two parked cars and, according to his testimony, began hitting and striking him with a hard object. Instead, they see such regaining as accomplished during the scuffle between the officers and defendant after they jcaught up to him. The majority finds the precise *172moment of regaining the privilege, accepting the defendant’s testimony, to be when the defendant reached in his waistbelt, got his gun and tossed it on the ground because I didn’t want them to catch me with a gun on my person.”
Earlier we have dealt with the complete absence of evidence that either officer observed the discarding of an object by defendant or should have known that the loaded gun was being discarded or could have known that the defendant was, by the discard, rendered completely unarmed. The discard could as easily have been a decoy as a disarming. Self-defense and manslaughter by unnecessary force in the exercise of self-defense are affirmative defenses, with the burden of establishing the right to the privilege upon the defendant. See, sec. 972.11, Stats. See also, Patterson v. New York, — U.S. —, 97 S. Ct. 2319, 53 L. Ed.2d 281 (1977).
If the mid-scuffle discard of a gun can be held to be a “good faith” withdrawal, can it be held here to have been accompanied by the “adequate notice” of withdrawal to the arresting officers which the statute requires? (Sec. 939.48(2) (b), Stats.) To term the claimed discard of a weapon as a “good faith” withdrawal “from the fight,” as the statute puts it, the majority is required to separate each second of the chase of the armed gunman by the police into a separate occurrence, each moment to be considered in isolation from what went before.
One moment these officers are struggling with an armed and dangerous fugitive. The next moment they are hitting a disarmed and no-longer-dangerous adversary. Reality is not thus segmentable. Events here are beads on a single string, no one moment to be taken from the string as if nothing preceded it. At a risk of their lives that was apparent, and with a loss of their lives that was consequent, two law officers here set *173out after an armed and dangerous fugitive who had just pointed his gun at them and threatened to blow their heads off. The police officers cornered the fugitive between two parked cars, and hit and struck him to prevent his getting and using his gun. In the middle of that struggle, after the officers had grappled with the defendant, the defendant said he reached for his gun and discarded it. .
With no evidence that the officers observed or knew that a gun had been tossed to the ground, and no assurance that it was this defendant’s only weapon, the majority extracts this moment in time and accepts the defendant’s argument that, at this precise moment during the scuffle, the defendant had in “good faith” withdrawn from the struggle and had given “adequate notice” of his so doing to the officers. What the majority accepts as a change of status of this defendant was no more than a moment-long interruption of his escaping— the flight which he resumed as soon as he shot the two law officers.
At best, if the officers did observe the mid-struggle discard of a weapon, they had but seconds to consider and decide if their adversary was no longer armed and dangerous. They had risked widowing- their wives and orphaning their children by grappling with an armed and dangerous fugitive instead of using a gun to subdue him. They were not required to increase that risk by concluding that the discarding of an object or the statements made by the defendant ended their danger. The discarding of the gun could as easily be a ruse as a reassurance.
The writer, joined by colleagues JJ. HANLEY and CONNOE T. HANSEN, would find here no “good faith” withdrawal, holding instead that the two officers were not at any point in time in these circumstances required to view or treat this defendant as other than a dangerous *174antagonist who by threats and acts had established that he intended harm to them and escape for himself. Additionally, we would find no basis for the jury or for the majority of this court to find that by a mid-scuffle discard of a gun this defendant had given “adequate notice” to the police officers of his “good faith” withdrawal so as to entitle him, seconds later, to shoot and kill both officers and claim to have done so in self-defense. See, sec. 939.48(1) (b), Stats.
3. At the time this defendant shot and killed two police officers, knowing them to he such, no reasonable basis existed for his believing that he was in imminent danger of death or great bodily harm. The self-defense statute provides that a person engaged in “unlawful conduct” provoking an attack “is not entitled to claim the privilege of self-defense against such attack” except when the attack which ensues is of a type causing him “to reasonably believe that he is in imminent danger of death or great bodily harm.” (Sec. 939.48 (2) (a), Stats.) In this record there is no basis for finding a jury question as to whether this defendant, when he twice pulled the trigger, acted in self-defense or acted “. . . believing that his act was necessary in self-defense but his belief was unreasonable under the circumstances.” Day v. State, 55 Wis.2d 756, 760, 201 N.W.2d 42 (1972).
Earlier, after the officers had cornered the defendant between two parked cars, the defendant testified that he “felt the hands over my head going with blows, and I grabbed one hand and I held it against the hood.” Defendant also stated that he saw a gun, presumably being used as a nightstick, in the hand of one of the officers and that he “got the gun away from this person.” With the policeman’s service revolver in his possession, the defendant testified that he “pointed it towards where the punches were coming from, I shot one, I turned it towards the back of me and I shot again.” Defendant also testified that after he wrested the revolver from *175the police officer, “I heard one of them say, he got the gun.”
So we have, if defendant’s testimony is believed, the situation where police officers are punching at a fugitive they know is rearmed with a gun, and the person with the gun is responding by intentionally shooting, first “where the punches were coming from” and then turning and shooting again.
Can such exchanging of bullets for punches by one whose “unlawful conduct” provoked the struggle be justified as an exercise of the privilege of self-defense, albeit an unreasonable exercise? The majority cites two Wisconsin civil battery cases for the proposition that a police officer may be liable for assault and battery if he “uses unnecessary and excessive force.”
See, McCluskey v. Steinhorst, 45 Wis.2d 350, 173 N.W. 2d 148 (1970), and Wirsing v. Krzeminski, 61 Wis.2d 513, 524, 213 N.W.2d 37 (1973).
That is true enough, but such rule applies awkwardly to police officers both pursuing an armed gunman who has threatened their lives and confronting a rearmed and dangerous subject of lawful arrest. Not only is the “interference with the person” of the armed gunman here not unlawful, but a once armed and then rearmed gunman cannot in self-defense shoot and kill the law officer who throws a punch in seeking to place such gunman under arrest.
Punches thrown at the provoker of an attack do not warrant a response with bullets, for such punches do not create a reasonable basis for fear of imminent death or great bodily harm. Where a defendant reached across a counter and hit a storekeeper with a wrench, our court held the blow struck, as a matter of law, did- not constitute an assault with intent to do great bodily harm. State v. Bronston, 7 Wis.2d 627, 633, 97 N.W.2d 504, 98 N.W.2d 468 (1959). In commenting on the Bronston Case, this court recently stated: “[T]he relatively minor *176injuries sustained by the victim in Bronston were not in the same category or of the same kind as the enumerated injuries which created a high probability of death, permanent disfigurement, or the loss or 'impairment of an organ or bodily function.” See, La Barge v. State, 74 Wis.2d 327, 331, 246 N.W.2d 794 (1972), reversing Bronston in another particular, but saying of the above conclusion: “There is no disagreement with the conclusion the court reached in Bronston.”
In Bronston, the “relatively minor injuries” consisted of a two-inch laceration of the scalp, requiring four sutures to close. In the case before us, the similarly “relatively minor injuries” consisted of a single two-millimeter cut on the head, which defendant’s own medical witness described as being “very superficial.” While there were “very superficial” and “relatively minor” injuries in both cases, one does not need the wrench-involved Bronston holding to find no basis for this defendant having acted to avoid death or great bodily harm when he shot “where the punches were coming from.”
At no time in his testimony did defendant state in any fashion, directly or indirectly, that he believed he was in danger of death or great bodily harm. The forbearance of the officers in not shooting him when they had the gun (which he eventually wrested from them) was reassuring on that score. With the balance of power in his hands he had no reason to fear death or great bodily harm. Here when he rearmed himself, the defendant shot twice and killed twice, not to avoid death or great bodily harm but to continue his escape and avoid arrest.
When asked why he did not run away when cornered, defendant answered, “I couldn’t.” When asked what he did right after he shot the officers, defendant answered, “I started running north.” (Incidentally, taking the gun with him.) The defendant’s continuing purpose was to flee arrest and the sole purpose of the officers was to prevent such escape. Accordingly, there is in this record *177—including defendant’s testimony — no reasonable basis upon which a jury could conclude that this defendant believed his twice firing the gun was an act necessary to prevent his death or serious bodily harm, as required by the self-defense statute to legally justify or mitigate his killing of the two officers. (Sec. 989.48(2) (b), Stats.)
For the three reasons given, (1) no unlawful interference by the officers, (2) no regaining of the privilege of self-defense by the defendant, and (3) no reasonable basis for his having acted in fear of death or great bodily harm (and with each reason in itself sufficient for affirmance), the writer, joined by JJ. HANLEY and CONNOR T. HANSEN, would affirm the trial court’s refusal to submit as optional verdicts to the jury, instructions relating to acquittal on grounds of self-defense (sec. 939.48, Stats.) or manslaughter by an unreasonable exercise of self-defense (see. 940.05, Stats.).
II. CHANGE OF VENUE?
Additionally, defendant claims he was denied constitutional and statutory rights by the trial court’s order changing the place of trial from Milwaukee to Sparta in Monroe county. The constitutional reference is twofold: (1) To art. I, sec. 7 of the Wisconsin Constitution, requiring trial of criminal defendants “by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law,” and (2) to amend. VI of the United States Constitution guaranteeing the defendant a trial “by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”
Defendant contends these provisions give him an absolute right to trial by a jury of the county or district in which the offense with which he is charged is alleged to *178have been committed. But what if a fair trial by an impartial jury cannot be had in the county or district in which the crime was committed ? If such be the situation, and if the defendant moves for change of venue or change in place of trial to another county or district, that motion must be granted by the trial court. Sec. 261.04, Stats.
But what if the defendant makes no such request or motion? Can the trial court, after finding that a fair trial by impartial jury cannot be had in the county or district where the crime was committed, transfer sua sponte the place of trial to another county or district where a fair trial by impartial jury can be had?
In such case of crunch the choice is twofold. Either the mandate for fair trial by impartial jury must prevail, or the requirement for trial in the county or district where the crime was committed must be given priority. Obviously, one mandate must give way to the other. The only alternative would be to hold that, where a fair trial cannot be had in the county or district in which the crime was committed, no trial can be held anywhere unless defendant requests a transfer of the case. Not many such requests or motions would be made by defendants if the consequence of not making the request was dismissal of the proceedings.
In determining the priorities in this situation, one ought start with the primary purpose and nature of the constitutional protection of the nearly identical federal and state constitutional provisions involved. We see the goal sought as the right to a fair trial by an impartial jury in the county or district where the crime was committed. To go beyond that to hold there is an absolute and unlimited right of a defendant to trial in the county or district where the crime was committed — regardless of fairness of the trial or impartiality of the jury — makes no sense at all.
*179An unfair trial other than by an impartial jury is no trial at all. Where the crunch is between the fairness and the locality of the trial, fairness is not to yield to locality. As one state court has held: “[I]t is the right of trial by an impartial jury in the county in which the offense is alleged to have been committed that is preserved rather than the absolute right to a trial in the county.” [Emphasis in original.] State v. Patterson, 64 Ariz. 40, 165 P.2d 309, 313 (1946).
Or as the same court put it: “The right of a defendant to a trial by jury in the county where the crime is alleged to have been committed is conditioned upon the possibility of empaneling ‘an impartial jury’ in that county. . . .” Mast v. Superior Court, 102 Ariz. 225, 427 P.2d 917, 918 (1967). The conclusion follows that the right to trial in a particular county or district is contingent upon the possibility of finding an impartial jury to conduct a fair trial in such county or district.
Thus holding the federal and state constitutional mandate to be primarily an assurance of a fair trial by an impartial jury — to be held where possible in the county or district where the crime was committed — the requirement of a shift for fairness becomes more than a “strategic choice” of the defendant at bar. It becomes an affirmative duty of the trial court to order the change of place of trial where a fair trial cannot be had in the county or district of vicinage. As this court has held: “[A] trial court should act on its own motion when confronted with ag-gravated circumstances from which it appears that a jury’s dispassionate evaluation of the evidence is rendered doubtful because of the pressure of publicity surrounding a case.” State v. Dean, 67 Wis. 2d 513, 526, 227 M.W.2d 712 (1975).
As this court earlier held as to change of venue to assure a fair trial: “[I]n some cases the court may be required to act sua sponte.” McKissick v. State, 49 Wis. *1802d 587, 545, 182 N.W.2d 282 (1971). Earlier our court has held that: “[U]nder proper circumstances a trial court has an affirmative duty to take steps to protect the right of a defendant to a fair trial.” State v. Alfonsi, 33 Wis.2d 469, 480, 147 N.W.2d 550 (1967), quoting Sheppard v. Maxwell, 384 U.S. 361 (1966), the high court holding, “Due process requires that the accused receive a trial by an impartial jury free from outside influences.”
The majority opinion notes that in the above noted and quoted cases the defendant did • not object to the change in place of trial to another county. That is correct, but that fact neither dilutes nor waters down the mandate given trial court judges in this state to sua sponte make certain that a fair trial with an impartial jury can be held in the county in which the crime was committed.
Had this court intended to subject the affirmative duty placed on trial courts to assure fairness of trial proceedings to assent by the defendant, it could and would have said so. The ringing words of the Dean decision that “a trial court should act on its own motion when confronted by aggravated circumstances” (67 Wis.2d at 526) as to fairness of trial in the county of the crime now have added the exception “unless the defendant objects.” That makes a matter of “strategic choice” of a defendant what, up to now, was a constitutional imperative to assure the fairness of the trial. In opting for the right of a defendant to insist upon a less-than-fair trial before a less-than-impartial jury, the majority points out that a change of venue or place of trial is only “one method of guaranteeing a fair trial; others are voir dire and continuance.” Citing McKissick v. State, 49 Wis.2d 537, 182 N.W.2d 282, 286 (1971).
It is true that, in addition to changing the place of trial, there is the possibility of continuance until pub*181licity abates or the exclusion on voir dire of prospective jurors who are in effect prejudiced. The “affirmative duty” placed upon trial courts where fairness of trial is involved requires consideration of the alternatives and — in the sound exercise of judicial discretion — determining the appropriate alternative to choose.
This is what the trial court did in the instant case, after waiting until one month before the trial date to decide between the available alternatives. While defense counsel registered numerous objections to the order when issued, no earlier request for an evidentiary hearing on the matter of whether a fair trial could be held in Milwaukee county was made by defendant, so we would not find any denial of a meaningful opportunity to be heard on the venue issue. Both state and defense in criminal cases are on notice that a trial court in this state has the affirmative duty to remove doubts as to the fairness of a trial held in the county of commission of the crime.
In the case before us, the trial judge carefully and in detail set forth the matters he had considered before ordering a change of venue to another county. The standard of measurement was stated to be “a reasonable likelihood that pretrial publicity has prejudiced the right of the defendant to a fair trial.” As a frame of reference, the trial judge listed the factors the court considered, including “the nature and character of the publicity or information involved; the degree to which the publicity has permeated the area of the jury sources; that is, the intensity and coverage of that information; the timing and specificity of the publicity.”
The trial judge further detailed matters such as the publicity from the time of the offense in the local news media, the necessity to move the preliminary hearing to larger quarters to accommodate spectators, and the repetitive coverage of testimony and extra-judicial statements of witnesses in the news media. He concluded that there *182existed in the community of Milwaukee “a climate of prejudice under the reasonable probability rule.” Rejecting as inadequate alternatives such as granting of further adjournment, use of voir dire, and sequestration of the jury, the trial court found that changing the place of trial was required to insure a fair trial by an impartial jury.
While the final check by the trial judge — made by visiting places of community assembly to determine community reaction to pretrial publicity — can be faulted, it was here no more than an effort to determine if the passage of time had abated the climate or prejudice and prejudgment, and, at the least indicated, as did his order and findings, the thoughtful care and careful consideration he gave to the matter of resolving doubts as to whether a fair trial could be conducted in Milwaukee county. The exercise of discretion as to place of trial was thus thoughtful, prudent and proper.
III. POLYGRAPH EVIDENCE?
Finally, defendant argues the trial court erred in not permitting defense counsel to call to the witness stand expert witnesses to impeach the testimony of the polygraph examiner who, by stipulation of the parties, conducted a deception response test as to defendant’s answers to certain questions. With the results of such testing adverse to the interests of his client, defense counsel sought to contest the qualifications of the agreed-to examiner and to impeach the results of the testing and the procedure followed.
The majority of this court finds no ground for reversal in the trial court’s refusal to permit, beyond cross-examination, the impeachment of the testimony of the polygraph examiner to which the parties had earlier stipulated. The parties — prosecution and defense — had stipulated that the results of the polygraph testing by the *183designated polygraph examiner would be admissible “subject to the holding in State v. Stanislawski [62 Wis.2d 730, 216 N.W.2d 8 (1974)]” The trial judge followed the Stanislawski-Tprescribed procedure, and is not to be faulted for following the limits set in that holding of this court, exactly as provided for in the stipulation of the parties here.
Actually, in the case before us, it was the defendant through his counsel who initially filed a motion for admission of the results of the polygraph examination, asserting in such motion that he was “willing to undergo a polygraph examination at the Wisconsin Crime Laboratory by Mr. Robert L. Anderson, Chief Polygraph Examiner.” In that motion defendant demanded that the results of the polygraph examination to be conducted by Mr. Anderson be admitted at time of trial whether the state consented or not. However, since Stanislawsld requires an advance stipulation as to admissibility by both prosecution and defendant, the trial court properly denied such motion.
At the time of the hearing on the motion the defendant identified Mr. Robert Anderson, who subsequently administered the test here given, as “the most outstanding polygraph examiner in the midwest.” After the denial of defendant’s motion for admissibility of a test to be given by Mr. Anderson, defendant and the prosecution entered into a stipulation that a polygraph test would be given to defendant by Mr. Anderson. Following this stipulation, the trial court approved the testing and, subject to the conditions of Stanislawsld, admitted the results of the test into evidence.
The stipulation of the parties as to the polygraph test and who was to conduct it was subject to Stanislawsld, which allows admission of polygraph evidence under the following limited conditions: “(1) only for impeachment or corroboration, on the question of credibility; (2) *184where there is a stipulation of prosecutor and defense counsel, and consent of the party involved, to the taking of the test and the admissibility of its results; and (3) with the trial court retaining the right to reject the proffered testimony if not convinced that the examiner is qualified and that the test was conducted under proper conditions.” Id. at 741.
If the trial judge is not convinced the examiner is qualified or the test was conducted under proper conditions, the trial court may refuse to accept the polygraph evidence. Id. at 742. The right of the opposing party to cross-examine the examiner is limited by StanislawsM to “(a) the examiner’s qualifications and training; (b) the conditions under which the test was administered; (c) the limitations of and possibilities for error in the technique of polygraphic interrogation; and (d) at the discretion of the trial court, any other matters deemed pertinent to the inquiry.” Id. at 743.
In the case before us, defense counsel sought to go beyond such cross-examination to introduce the testimony of other expert witnesses to impeach the polygraph examiner — earlier stipulated to by him — and such examiner’s opinion. That goes beyond the dictates of StanislawsM which set forth not only the preconditions for admissibility, but the limit and extent of efforts to impeach the testimony of the polygraph examiner. The offering of additional testimony through other experts, either for impeachment or corroboration, was not included within the parameters of StanislawsM.
While finding no reason for reversal in the procedure followed by the trial court in this case, pursuant to StanislawsM, a majority of this court interprets Stanis-lawsM to permit a mid-trial review of the matter of admissibility of polygraph testimony. Such authority to review the matter of admissibility makes the stipulation of the parties a noneonditional one, not retractable when*185ever the results of the test turn out to be adverse to one or the other of the parties joining in the stipulation. Instead, it makes the court ruling as to admissibility subsequently reviewable by the trial court at any time before the polygraph test results are admitted into evidence.
Such court review is to be at a hearing before the court, not the jury, and is to be limited solely to the question of admissibility. So limited, it should be clear that it must be held before, not after, the polygraph examiner takes the stand or the outcome of his testing is presented to the jury. The writer agrees that this provision for court reconsideration of its ruling on admissibility implements, but does not do violence to the StanislawsM rule that “notwithstanding the stipulation the admissibility of the test results is subject to the discretion of the trial court, i.e., if the trial judge is not convinced that the examiner is qualified or that the test was conducted under proper conditions he may refuse to accept such evidence.” Id. at 742.
Three Justices of this court (JJ. HEFFERNAN, DAY and ABRAHAMSON) would go further to permit a defendant, disadvantaged by the results of a polygraph examiner to which he earlier stipulated, to “call expert witnesses to impeach the • examiner’s opinion.” This would make the presenting of polygraph testimony identical with other types of expert testimony, such as that of psychiatrists called by state and defense to testify in “not guilty by reason of insanity” trials. This, the three Justices concede, would lead to a “battle of experts.”
That is the kindest possible description of the parade of state and defense psychiatrists to the witness box, each whistling the tune of the side which calls them to the stand. One need not be a cynic to observe that it seems the side that pays the fiddler calls the tune. We need not and do not here debate what such “battle of experts” contributes to a “search for the truth” in criminal cases.
*186But what is puzzling about the three Justices’ suggestion is that it is made as an addendum to the Stcmis-lawslci procedure, when in fact it appears to be a substitute for it. If polygraphy testimony is to be admitted pursuant to “principles of general application to expert testimony,” as the three Justices suggest, what then is the purpose of the Stanislawski insistence upon advance stipulation of the parties and prior court approval to the admissibility of such polygraphy test results? Certainly, “principles of general application to expert testimony” do not include any requirement for advance stipulation of the parties and advance concurrence of the trial court as to admissibility of such expert testimony.
What is equally puzzling is to have the district attorney here — who stipulated to the admissibility of polygraph test results and joined in naming the examiner to conduct such testing — argue on this appeal that polygraphy testimony ought not be permitted in this state, even where the parties stipulate to its admissibility and the trial court concurs. If any district attorney in this state is not convinced of the reliability of polygraph testing, and not similiarly convinced of the qualifications of the examiner named to do the testing, there will be and can be no polygraph test results admitted in criminal cases in his county while he is district attorney. All he has to do is to refuse to stipulate to the test being given and the results of the test admitted. If he wants the door locked, he can lock it.
What is further puzzling is to have the defense counsel concur in suggesting that polygraph test results, even when requested by the defendant and stipulated to by the parties, ought not be admissible in this state. This is the same defense attorney who petitioned the court that a polygraphic examination of his client be conducted and who named the examiner who was to conduct the test. There would have been no polygraph testing in this *187case if the defendant had not specifically sought the testing. There also could have been no polygraph test results here admitted if the defendant and his counsel had not joined in a stipulation both for the testing and the admissibility of the test results. Both prosecutor and defendant had to unlock the door before it could be opened. Thus, in the case before us, both the district attorney and defendant by counsel stipulated that a polygraph test be given by a named examiner with the result of such test tó be admitted “subject to the holding in State v. Stanislawski.” Neither party in this action has reason to complain about the trial court doing exactly what both parties stipulated the court was to do.
The writer, joined by JJ. LEO B. HANLEY and CON-NOR T. HANSEN, would affirm the conviction of this defendant, James Ray Mendoza, on two counts of first-degree murder, to wit: (1) The intentional killing of Police Officer Robert Riley; and (2) the intentional killing of Police Officer Thomas Matulis. We would hold that (1) self-defense was not here applicable; (2) the place of trial was properly moved, and (3) the court rulings as to polygraph evidence, pursuant to State v. Stanislawski, were entirely proper.