(dissenting, with whom Reardon and Kap-lan, JJ., join). I dissent from the court’s opinion on the issue of the admissibility in evidence of polygraph test results.
The trial judge made certain findings concerning the reliability and acceptance of polygraph examinations in connection with his denial of the defendant’s motions to admit in evidence expert testimony describing the defendant’s polygraph examination results.1 Included was the statement: “Notwithstanding, the foregoing findings and though counsel has cited some instances where the results of polygraphic tests have been admitted into evidence, I am not convinced that the courts in general have given widespread acceptance to this type of evidence, nor is there any indication that state legislatures have passed legislation permitting such tests or the results thereof as evidence. In any event, I do not feel that a favorable determination of the admissibility, if indeed it is warranted, should be made in the first instance by the trial judge.”
On the basis of these findings, I cannot agree with the court that “the defendant’s motions concerning polygraph tests were not denied by the trial judge as a matter of discretion but rather as a ruling of law.” Furthermore, the findings make clear, in my opinion, that the judge was not compelled as a matter of law to grant the defendant’s motions, and that he did not abuse his discretion in refusing to admit the proposed polygraph evidence. Therefore, even under the rule adopted today by the court I would uphold the judge’s denial of such motions as a proper exercise of his discretion.2
1. I do not believe, however, that at this stage in the development of the poly graphic art, the admission of *442polygraphic evidence should be a question left to the discretion of the trial judge. My belief is strengthened by an examination of the record before the trial judge in this case when he made his findings and decision. The record consisted of: (1) the testimony of three witnesses; (2) an offer of proof of the testimony of a fourth witness which was read into the record by the defendant’s attorney; and (3) an article entitled, “The Polygraph in a Psychiatric Setting,” by Stanley Abrams, published in 130 Am. J. Psychiatry 94 (1973).
Of the four witnesses, two were professional polygraph examiners in private practice, one was the polygraph examiner for the Massachusetts State Police, and one was a psychiatrist. None of the practising examiners appeared to have had any training in psychology or physiology; their expertise and knowledge of the field were based on practical experience and participation in short courses given at professional polygraph schools. The psychiatrist’s knowledge of recent developments in the field appeared to be general and not based on personal experience or study. The article introduced has no bearing on the use of polygraphic evidence in criminal trials or on the reliability of polygraph tests in general; rather, it is a short report by a psychologist of his use of the polygraph as a therapeutic tool.
The defendant had the burden of overcoming the “substantial doubts” about the reliability and scientific recognition of polygraph tests referred to by this court in Commonwealth v. Fatalo, 346 Mass. 266, 268-270 (1963), as he apparently concedes in his brief. In view of (1) the Fatalo case, (2) the fact that even eleven years later so few courts have admitted unstipulated polygraph evidence,3 and (3) *443the fact that so many courts continue to refuse to admit such evidence because they still consider it unreliable (see, e.g., United States v. Frogge, 476 F. 2d 969, 970 [5th Cir. 1973]; United States v. Urquidez, 356 F. Supp. 1363 [C. D. Cal. 1973]; United States v. Wilson, 361 F. Supp. 510 [D. Md. 1973]), it is my opinion that the total sum of information placed before the trial judge falls far short of what this court should require to enable it to reach a proper decision on an issue of such far-reaching consequences as the admission of poly graphic evidence. Compare the record in this case to the description of the evidence presented in United States v. DeBetham, 348 F. Supp. 1377, 1380-1382, 1384-1389 (S. D. Cal. 1972), affd. per curiam 470 F. 2d 1367, 1368 (9th Cir. 1972), cert. den. 412 U. S. 907 (1973); United States v. Ridling, 350 F. Supp. 90, 92 (E. D. Mich. 1972); and United States v. Zeiger, 350 F. Supp. 685, 686-690 (D. D. C. 1972), revd. per curiam 475 F. 2d 1280 (D. C. Cir. 1972), all relied on by the defendant. Furthermore, it is worth noting that in United States v. Frogge, supra, the court rejected the Ridling opinion, stating, “Though a trend may be emerging towards loosening the restrictions on polygraph evidence . . . the rule is well established in federal criminal cases that the results of lie detector tests are inadmissible. . . . Nothing in United States v. Ridling, 350 F. Supp. 90 (. . . 1972), heavily relied upon by the appellants, persuades us to abandon the traditional view.” 476 F. 2a at 970.
2. I recognize, however, that even if this court were to affirm the denial of the defendant’s motions it should not end thereby any further consideration of polygraphic evidence. From reading cases and commentaries on the subject I acknowledge there are many claims that the polygraph is making advances in technical or scientific and *444legal terms and is being treated with increasing acceptance in a variety of fields. Neverthless, there remains serious doubt whether the reliability or scientific recognition of polygraph tests has become sufficiently established since Commonwealth v. Fatalo, supra, was decided. Accordingly, I do not believe the court is warranted in holding on a record as limited as the one before us that evidence of polygraph tests may now be admitted in criminal trials at the discretion of the trial judge. I believe a far more prudent and sensible approach would be for the court under its rule making powers to appoint a special committee or commission with a mandate to conduct a thorough study of the validity and reliability of the polygraph test itself and of the manifold problems connected with the admission of such test results as evidence in criminal trials and other judicial proceedings.
3. One of the principal reasons I suggest such a study is that my limited research on the subject indicates that the validity and reliability of polygraph examinations are still relatively unknown and perhaps unmeasurable quantities. The basic technique and theory on which the polygraph operates have not changed significantly since the 1920’s, when Frye v. United States, 293 Fed. 1013 (D. C. Cir. 1923), was decided, the first case to consider (and reject) a precursor of the polygraph for evidentiary purposes. And as the court points out in the present case, the theoretical basis of the polygraph test continues to be questioned today for the same reasons it was at the time of our Fatalo decision.4
More significantly, there is still very little information of widespread acceptance concerning the accuracy and reliability of the polygraph test as a means of detecting deception, and the difficulties which exist in trying to reach a sound assessment of these factors appear to be substan*445tial. See Ome and others, supra, at 749-751; Ome, supra, at 170, 188, 196. It is pointed out that many of the statistics provided by field practitioners about the reliability of the tests are questionable because they are based on the assumption that the examiner’s decision that a subject is lying or telling the truth is correct unless it is proved wrong by further investigation or other means; similarly, statistics on the validity of the polygraph test based on subsequent confession or convictions are unreliable because there is no guaranty that such confessions or convictions always represent the truth.5 It is also suggested that statistics derived from laboratory experiments fail to provide any meaningful indication of the accuracy or reliability of the polygraph test.6
A meaningful assessment of the test’s validity is made more difficult by the critical role the examiner plays in the results of any polygraph examination. The private biases and impressions the examiner forms about the subject’s guilt or innocence before administering the test will influence his formulation of questions and structuring of the test as a whole; the test results themselves are thereby affected.7
Turning to examiner competence, it is without question that this factor is of critical importance as all the defendant’s expert witnesses and the court point out. The emphasis put on the skills, experience, and integrity of the examiner is not surprising since the results of a polygraph examination cannot be derived directly from the polygraph machine itself but depend on the examiner’s interpretation and analysis of charts obtained from the machine. It is *446stated that about sixty-five per cent of the cases require a “highly skilled and well trained examiner” for their interpretation.8 However, available statistics about the general level of qualified examiners are not encouraging. In 1964, Inbau and Reid stated that only twenty per cent of practising examiners were competent and qualified.9 No later statistics showing improvement in this rating were cited by the defendant and I found none. A number of States have passed legislation regulating polygraph examiners,10 but Massachusetts has not. And, as the court also states, no uniform levels of competence are enforced by the polygraph industry itself.
These questions raised about the ability of the polygraph test to determine whether or not a person is telling the truth and about the general level of examiner competence must be considered in relation to the test’s potential effect on the trial process. It seems very probable to me that if the evidence of a criminal defendant’s polygraph test results were admitted at his trial, it could turn out to be the conclusive determinant of his guilt or innocence, despite the doubts about the test’s accuracy. The evidence ultimately offered is likely to be no more than the opinion of the polygraph examiner that the defendant was lying or telling the truth when, in response to a test question, he answered that he did not commit the crime in question; nevertheless, an almost impenetrable aura of scientific infallibility may well surround the polygraph machine itself in the minds of *447the jurors. As a result, there is a grave risk that the jurors will regard such opinion testimony as resolving the ultimate question of the defendant’s guilt or innocence, not considering polygraphic evidence as they do other expert testimony and, contrary to the court’s instructions, not in fact weighing it with all the other, evidence presented. The jury’s historic function as the finder of fact and their related responsibility to determine the credibility of witnesses may be replaced by the polygraph machine.
The significant or undue influence that polygraphic evidence may have on a jury has been a problem discussed extensively by both the courts and commentators.11 It is my opinion that the likelihood of this influence is such that we cannot permit polygraphic evidence to be admitted without examining more thoroughly the available information about the accuracy and reliability of polygraph tests than is possible on the record before us;12 it also seems that further consideration must be given to the protective measures which could be employed to guard against it. Although the contrary is suggested by the court in its opinion, I do not believe that cross-examination of the polygraph examiner offers a great degree of protection. Given the subjective nature of the examiner’s interpretation and the lack of minimum or uniform standards for qualification, the opposing party will have a difficult time effectively challenging the examiner or his testimony. To the extent that cross-*448examination is effective, there is a danger that the trial will become a battle of experts. In Commonwealth v. Fatalo, 346 Mass. 266, 269 (1963), this court emphasized the confusion resulting from such a battle in excluding polv-graphic evidence. It is significant that in United States v. Urquidez, 356 F. Supp. 1363, 1365, 1366-1367 (C. D. Cal. 1973), decided ten years later, a Federal District Court excluded polygraphic evidence for the same reason, quoting from the Fatalo opinion.
The court has expressly avoided establishing minimum standards for the qualification of polygraph experts although, as it notes, many authorities take the contrary position that polygraphic evidence should not be admitted unless such minimum qualifying standards are applied.13 Many also suggest that in any jury trial where such evidence is used, the court should give limiting instructions about the weight the evidence should be given by the jury.14 I believe both these suggestions and other protective steps could and should be studied, although the opportunity to do so does not present itself in the context of this case.
4. There are many procedural and substantive legal questions which arise in connection with the admission of polygraph evidence and which I believe need further study by this court before such admission is permitted. I mention only a few to illustrate my point.
The opinion of the court provides that the defendant alone can request that a polygraph examination be administered to him; the Commonwealth has no corresponding right. I would agree that by reason of the privilege against self-incrimination the Commownealth could not compel a defendant to take a polygraph test. However, I am not sure *449that the Commonwealth should or can be precluded from having its own expert retest a defendant whose motion to submit to a polygraph examination has been allowed and from introducing the results of the retest at the trial. The proposed “option one” appears so to preclude the Commonwealth. Cf. United States v. Ridling, supra, at 99.
Although the court discusses the defendant’s constitutional right against self-incrimination and its waiver, I believe many questions remain unresolved. The first concerns the type of notice and warning that should be given the defendant with respect to his right to remain silent. This question seems particularly important in the case before us, involving, as it does, a juvenile. See note, 48 N. Y. U. L. Rev. 339, 353-355 (1973). A second question is whether, once the admissibility of polygraph evidence is established, a defendant’s failure to offer such evidence in a jury trial will be interpreted as evidence of guilt; if such a result seems possible, perhaps it is necessary to consider what steps might be taken to prevent the jury from drawing such an inference. See annotation, 95 A. L. R. 2d 819 (1964); note, 53 B. U. L. Rev. 375, 392-396 (1973).
The “four options” procedure outlined in the court’s opinion fails to establish, in my judgment, sufficiently detailed guidelines to govern the admission of polygraphic evidence. For example, no guidance is given the trial judge to help him evaluate and compare the options permitted the defendant, a task which seems necessary if the judge is to rule properly on a motion brought under any one of them. Furthermore, there is some indication that the validity of the polygraph test results themselves may be influenced by the defendant’s choice of options: one authority suggests that a defendant’s test results might well be affected if the examiner is hired and paid by the defendant or his attorney. See Orne, supra, at 193-195.
The court states that it is taking “a cautious first step toward the acceptance of polygraph testing.” Many other courts, however, have used a more limited approach to the admissibility of polygraphic evidence, permitting its ad*450mission only when the parties have entered a stipulation for that purpose. See cases collected in annotation, 53 A. L. R. 3d 1005 (1973). In addition to the requirement for such a stipulation, the courts have often set forth detailed conditions to govern the admission. See State v. Stanislawski, 62 Wis. 2d 730, 741-743 (1974), decided earlier this year.15 Cf. Romero v. State, 493 S. W. 2d 206, 213 (Tex. Crim. App. 1973).
5. The failure to provide the necessary guidelines seems to be due in large part to the limited nature of the record before the court in this case, for it does not appear that the record contains enough evidence or information on which to base a more extensive treatment of the admission procedure. In fairness to the defendant, however, it must be recognized that it is probably beyond the financial and other capacity of the average individual litigant to establish a record of the type the court should have available to it before it can make an intelligent decision on this important issue — a decision which inevitably will have a precedent-setting effect on the future trial of cases. See United States v. Urquidez, 356 F. Supp. 1363, 1366-1367 (C. D. Cal. 1973).
The establishment of an appropriate basis on which to make such a decision could be accomplished in either of two ways: (1) by a legislative study conducted as a basis for possible legislation; or (2) by a judicial study conducted under this court’s rule making powers. It is noteworthy that the General Court has dealt three times in recent years with the uses of the polygraph, each time in connection with statutes relating to employment: St. 1959, c. 255, which inserted in G. L. c. 149, § 19B, prohibiting an employer from requiring or subjecting “any employee to any lie detector tests as a condition of employment or continued employment”; St. 1963, c. 797, which rewrote § 19B *451without changing its meaning, except to add a proviso that the section “shall not apply to lie detector tests administered by law enforcement agencies in the performance of their official duties” (it contained no new provisions pertaining to any other uses of such tests); and St. 1973, c. 620, which amended the section again, making its original employment provisions applicable to any person applying for employment as a police officer.16
This history of the Legislature’s actions in the field of polygraph tests shows that it has not heretofore directed its attention to the use of such test results as evidence in judicial proceedings. Nor is there any indication that it is likely to do so in the imminent future. But studies similar in nature to the one I feel necessary here have been conducted under the auspices of the court,17 and I believe a study of the issue of polygraphic evidence could be successfully undertaken. Located in Boston, in the midst of several great universities, this court has available to it the abilities and experience of leading scientists, lawyers and experts in many other fields of relevance to the polygraph. These persons could provide needed assistance in conducting such a study and could make significant contributions to it. If indicated by the study’s findings, we could then consider drafting rules to govern the subject of polygraphic evidence. Such an approach seems to offer the best opportunity for developing a sound, effective procedure within a reasonable period of time to regulate the admission and use of this type of evidence in future trials.
The judge’s findings are quoted in pertinent part in the court’s opinion at 424-425, supra.
See United States v. DeBetham, 348 F. Supp. 1377 (S. D. Cal. 1972), affd. per curiam 470 F. 2d 1367, 1368 (9th Cir. 1972), cert. den. 412 U. S. 907 (1973). In that case the Federal Court of Appeals held, per curiam, that the trial judge had not abused his discretion in refusing to admit polygraphic evidence offered by the defendant, although the trial judge’s opinion (348 F. Supp. at 1379-1380, 1391) was based in large part on his belief that a decision permitting the admission of such evidence should be made in the first instance by the appellate court.
Of the three cases introduced as exhibits by the defendant, United States v. Zeiger, 350 F. Supp. 685 (D. D. C. 1972), was reversed per curiam (475 F. 2d 1280 [D. C. Cir. 1972]). In United States v. DeBetham, supra, the Court of Appeals for the Ninth Circuit affirmed the trial court’s denial of the defendant’s offer to admit polygraph evidence. Unstipulated polygraph evidence was introduced in United States v. Dioguardi, No. 72 Cr. 1102 (E. D. N. Y. November 30, 1972), United States v. Hart, 344 F. Supp. 522 (E. D. N. Y. 1971), and State v. Watson, 115 N. J. Super. 213 (1971) (post-trial motion on sentencing). There do not appear to be any *443other reported criminal cases where unstipulated polygraph evidence has been admitted, although a few courts have indicated that in future cases the question of admission may be within the discretion of the trial judge. See United States v. Wainwright, 413 F. 2d 796, 803 (10th Cir. 1969), cert. den. 396 U. S. 1009; United States v. Lanza, 356 F. Supp. 27, 30 (M. D. Fla. 1973); State v. Alderete, 86 N. M. 176 (1974).
Orne, supra, at 174, 179-180. Ome and others, supra, at 750. See United States v. DeBetham, supra, at 1385; Reid and Inbau, Truth and Deception: The Polygraph (“Lie-Detector”) Technique at 234 (1966); Radek, The Admissibility of Polygraph Results in Criminal Trials: A Case for the Status Quo, 3 Loyola U. of Chicago L. J. 289, 297 (1972); note, 20 Drake L. Rev. 330, 334 (1971).
Orne, supra, at 184-185.
Compare Skolnick, Scientific Theory and Scientific Evidence: An Analysis of Lie-Detection, 70 Yale L. J. 694, 700-703, 727 (1961), with Ome, Implications of Laboratory Research for the Detection of Deception, 2 Polygraph 169 (1972), and Ome and others, On the Detection of Deception, in Greenfield and Sternbach, editors, Handbook of Psychophysiology 743, 744, 749 (1972).
Orne, supra, at 175-177. Orne and others, supra, at 750-751.
Horvath and Reid, The Reliability of Polygraph Examiner Diagnosis of Truth and Deception, 62 J. Crim. L., Criminology and Police Science, 276, 278 (1971).
Inbau and Reid, The Lie-Detector Technique: A Reliable and Valuable Investigative Aid, 50 A. B. A. J. 470, 473 (1964).
See, e.g., Ark. Anno. Sts. §§ 71-2201 to 71-2225 (1957) (see Supp. 1973); Fla. Anno. Sts §§ 493.40 to 493.56 (1965) (see Supp. 1974-1975); Ga. Code Anno. §§ 84-5005 to 84-5008 (1970) and (Supp. 1973); Ill. Rev. Sts. c. 38, §§ 202-1 to 202-30 (1973); Ky. Rev. Sts. Anno. §§ 329.010 to 329.990 (1972); Miss. Code Anno. §§ 73-29-1 to 73-29-47 (1972) and (Supp. 1973); Nev. Rev. Sts. §§ 648.005 to 648.210 (1973); N. M. Anno. Sts. §§ 67-31A-1 to 67-31A-11 (1953) (see Supp. 1973); N. D. Century Code Anno. §§ 43-31-01 to 43-31-17 (1960) (see Supp. 1973); Tex. Rev. Civ. Sts. Anno. art. 4413 (29cc) (1966) (see Supp. 1974); Va. Code Anno. §§ 54-729.01 to 54-729.018 (1972) and (Supp. 1973). See note, 23 Catholic U. L. Rev. 101, 115, fn. 74 (1973), for a brief description of the legislation.
See, e.g., United States v. Stromberg, 179 F. Supp. 278, 280 (S. D. N. Y. 1959); United States v. Zeiger, supra, at 691; People v. Leone, 25 N. Y. 2d 511, 518 (1969); Radek, The Admissibility of Polygraph Results in Criminal Trials: A Case for the Status Quo, 3 Loyola U. of Chicago L. J. 289, 295-296, 300-302 (1972); note, 53 B. U. L. Rev. 375, 383-388, 390 (1973); note, 4 Suffolk U. L. Rev. 111, 119, 123 (1969). Cf. United States v. Ridling, supra, at 96-97, 98; note, 48 N. Y. U. L. Rev. 339, 347-348 (1973).
See Radek, supra, at 301-302.
Commentators assert that a polygraph examination is much more reliable than many other types of scientific evidence, particularly psychiatric evaluations. See Reid and Inbau, Truth and Deception, at 256, 257; Ome, supra, at 188-189; note, 73 Col. L. Rev. 1120, 1138-1139 (1973). However, it seems likely that the jury would attach greater significance to the opinion of a polygraph expert than to a psychiatric opinion solely because of the role played by the polygraph machine. It is also important to note the greater level of academic and clinical training uniformly required of psychiatrists than required of polygraph examiners.
See fn. 6 of the court’s opinion for a summary of the qualifications Reid and Inbau would require. See also note, 20 Drake L. Rev. 330, 347-348 (1971), where it is suggested that polygraphic evidence should not be admitted until legislation regulating examiners is passed.
See, e.g., United States v. Ridling, supra, at 96-97; United States v. Zeiger, supra, at 691; State v. Valdez, 91 Ariz. 274, 283-284 (1962); State v. Stanislawski, 62 Wis. 2d 730 (1974); Reid and Inbau, Truth and Deception, at 257; note, 48 N. Y. U. L. Rev. 339, 347-348 (1973).
In that case, the Supreme Court of Wisconsin reversed its long-standing rule of exclusion (State v. Bohner, 210 Wis. 651 [1933]) and held that polygraphic evidence may be admitted if all the parties enter a written stipulation to that effect. Its admission, however, would remain subject to the discretion of the trial judge and would also be subject to stringent and detailed rules and instructions which go far beyond those being required by the court in this case.
It appears that at least twelve States have passed legislation prohibiting the use of polygraph examinations in the employment context. See The Polygraph in Employment: The Consequences of its Search for Truth, a report of the Committee on Labor and Social Security Legislation, appearing in 28 Record of the Association of the Bar of the City of New York 464, 465, fn. 6 (1973). (The majority report of this committee recommends that the use of polygraph examinations in the employment context be barred by law in New York. Id. at 476.)
One example is the work of the Advisory Committee on Civil Procedure originally appointed by the Judicial Conference to study and to draft a new set of proposed rules of civil procedure; this court subsequently adopted the committee’s proposals, with modifications, as the Massachusetts Rules of Civil and Appellate Procedure, effective July 1,1974.