On petition for writ of certiorari to the United States Court of
Appeals for the Seventh Circuit.
The motion of respondent for leave to proceed in forma pauperis
is granted. The petition for a writ of certiorari is denied.
Justice REHNQUIST, with whom Justice O'CONNOR joins, dissenting
from the denial of certiorari.
Before Notwithstanding the stipulation, the trial court, in its
discretion, could refuse to admit the test results into evidence if
it determined that the examiner was not qualified or if the test
was not conducted under proper conditions. The opposing party was
provided with the opportunity to cross-examine the examiner.
Finally, the trial judge was required to instruct the jury that the
test
Page 455 U.S.
967 , 968
tends only to indicate whether at the time of the test the
defendant was telling the truth and that the test results may not
be used to prove or disprove any element of the crime. See State v.
Stanislawski, 62 Wis.2d 730, 742-743,
216 N.W.2d
8, 14 (1976).1
Because the Wisconsin procedure permitted the prosecutor to
refuse, " without articulating his reasons," a defendant's offer to
stipulate to the admission of polygraph evidence, the Court of
Appeals for the Seventh Circuit,
643 F.2d
458 held that respondent's due process rights may have been
violated. It directed that a writ of habeas corpus issue unless the
" prosecutor had valid reasons for refusing to enter into the
stipulation offered by the defendant."
643 F.2d
458, 466 (1981). According to the Court of Appeals, "the
prosecutor's refusal to enter into a stipulation must be for
justifiable reasons. Justifiable reasons in this context are
reasons which go to the reliability of the test or to the integrity
of the trial process, not reasons which consider merely the
relative tactical advantages from the use of the evidence to the
prosecution and the defense ." Id., at 464. In order for a court to
review the prosecutor's refusal to stipulate to the admission of
otherwise inadmissible evidence, the Court of Appeals reasoned that
the prosecutor must articulate his reasons. 2
Page 455 U.S.
967 , 969
In my view, this Court should grant the petition for certiorari
in this case. Although the case involves a state rule of evidence,
the Court of Appeals' decision did not rest on the trial court's
exclusion of evidence necessary for the defendant to mount a
defense, but on the prosecutor's refusal to stipulate to the
admission of otherwise inadmissible evidence. In this case, the
Court of Appeals has found federal constitutional issues lurking,
not in a state court's refusal to admit exculpatory evidence
proffered by the defendant, but in the prosecutor's reasons for
refusing to stipulate to the admission of otherwise inadmissible
evidence. In a given case, this Court's decisions may require that
exculpatory evidence be admitted into evidence despite state
evidentiary rules to the contrary, but these cases do not suggest
any limitation upon the reasons that may permissibly motivate the
prosecutor's objection to the admission of inadmissible
evidence.
Because the Wisconsin polygraph rule was based on principles of
consent and waiver,3 I do not see how the Court of Appeals'
reasoning would not apply to any objection by a prosecutor to the
introduction of otherwise inadmissible evidence. Though the Court
of Appeals attempted to limit its decision to cases involving the
polygraph, it seems to me that its reasoning necessarily sweeps a
good deal beyond just that type of evidence. In our adversarial
system of criminal procedure, testimony from witnesses and
documentary exhibits are generally admitted into evidence unless
the opposing party objects. In a sense, any such objection by the
prosecution is a "refusal" to consent or to stipulate to the
admissibility of the evidence. Such an objection, in the words of
the Court of Appeals, enables the prosecutor "to veto" the
admission of inadmissible evidence. But, according to the Court of
Appeals, the defendant's right to a fair trial may be denied
because the prosecutor has merely objected on the grounds
Page 455 U.S.
967 , 970
that the State's evidentiary rules require that the evidence be
excluded. The Court of Appeals expressed concern at the inability
of courts to review this exercise of prosecutorial authority; but I
have thought the common premise of the constitutional limitations
on a State's administration of criminal justice was that either
party to a criminal trial could "veto" the admission of otherwise
inadmissible evidence through the simple expedient of objecting to
its admission.
True, we have held that a defendant's rights under the Sixth and
Fourteenth Amendments may be implicated when a trial court
mechanically applies state evidentiary rules to preclude a
defendant from introducing exculpatory evidence necessary to his
defense. See, e.g., Green v. Georgia,
442 U.S. 95 (1979)
(capital case); Chambers v. Mississippi,
410 U.S. 284 (1973 );
Washington v. Texas,
388 U.S. 14 (1967 ). But
here the Court of Appeals did not find that the exclusion of the
polygraph testimony by the trial court was in itself error of
constitutional magnitude; it was at pains to point out that
Wisconsin was free to wholly exclude polygraph evidence if it chose
to follow that policy. The fault the Court of Appeals found with
respondent's state- court trial was not the ultimate exclusion of
the polygraph evidence, but the fact that the prosecutor failed to
articulate any reason for refusing to consent to its admission. I
think that this is a dubious constitutional holding with
considerable implications beyond the facts of the case-indeed,
beyond polygraph tests-which warrants plenary consideration by this
Court.
Although Wisconsin has recently abandoned its stipulation rule
in favor of a rule that forbids the admission of polygraph evidence
under any circumstances, this is hardly a reason to deny review in
this case. In light of the Court of Appeals' decision, habeas
corpus relief is apparently available to all Wisconsin prisoners
who were precluded by the stipulation rule from introducing
polygraph test results into evidence. Because as many as 23 States
will admit polygraph evidence
Page 455 U.S.
967 , 971
upon stipulation,4 the Court of Appeals' decision calls into
question the constitutionality of almost half the States'
evidentiary rules regarding the admissibility of polygraph test
results. The Court of Appeals for the Eighth Circuit has held that
polygraph evidence may be admitted upon stipulation into evidence
in a criminal trial. United States v. Oliver,
525
F.2d 731, 736-737 (1975), cert. denied, 424 U.S. 973 (1976).
Finally, two Courts of Appeals have held that a defendant's
constitutional right to a fair trial is not infringed when the
prosecutor refuses to stipulate to the admissibility of polygraph
test results. Milano v. Garrison,
677 F.2d
374 (CA4 1981); Jackson v. Garrison,
677
F.2d 371 (CA4 1981); Conner v. Auger,
595
F.2d 407, 411 ( CA8), cert. denied, 444 U.S. 851 (1979); United
States v. Bohr,
581 F.2d
1294, 1303 (CA8), cert. denied, 439 U.S. 958 (1978).
Because of this apparent conflict among the Courts of Appeals on
this issue, and because of doubt as to the correctness of the Court
of Appeals' decision in this case, I would grant the writ of
certiorari.
Footnotes
Footnote 1 The Wisconsin
Supreme Court has recently overruled Stanislawski, holding it error
to admit polygraph evidence in a criminal proceeding unless the
stipulation was executed prior to September 1, 1981. State v. Dean,
103 Wis.2d 228, 279,
307 N.W.2d
628, 653 (1981).
Footnote 2 The Court of
Appeals apparently based its conclusion on Washington v. Texas,
388 U.S. 14
(1967), and Chambers v. Mississippi,
410 U.S. 284 (1973).
Footnote 3 The Wisconsin
Supreme Court has expressly stated that its stipulation rule was
based on principles of consent and waiver. State v. Dean, supra, at
257, 307 N.W.2d, at 642.
Footnote 4 Pet. for Cert.
25.
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