Thomas R. Israel and Bronson C. Lafollette v. Darrel McMorris

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, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979) (capital case); Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (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 upon stipulation, 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, 96 S. Ct. 1477, 47 L. Ed. 2d 743 (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, 100 S. Ct. 104, 62 L. Ed. 2d 67 (1979); United States v. Bohr, 581 F.2d 1294, 1303 (CA8), cert. denied, 439 U.S. 958, 99 S. Ct. 361, 58 L. Ed. 2d 351 (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.