STATE v. BROWN

JONES, Justice.

On April 3, 1981, the victim in this case was approached by a man whom she did not know. After brief conversation, the man pulled her into the bushes and raped and sodomized her. The encounter lasted approximately 45 minutes. The next day, and again on April 8, the victim identified the defendant, Alvin Brown, as the perpetrator of the crimes by picking his photograph out of a photographic display. The defendant was then arrested and arraigned.

After retaining counsel, the defendant submitted to two polygraph examinations conducted by a private polygraph examiner, Kenneth Simmons, who specializes in criminal defense polygraphy. Simmons reported to defense counsel that his first polygraph examination of the defendant on April 13 produced inconclusive results. Simmons testified:

On April 21, this same examiner conducted what he called a "peak of tension" examination to determine if the defendant had knowledge of the events surrounding the reported rape. Examiner Simmons concluded that the defendant did not know about the specific details of the crime. The examiner purported to have information that was not available to the defendant concerning a dog, that the rapist had told the victim that he was in the Navy, and that he was driving a red Datsun pickup. After "passing" the second test by the criminal defense specialist, the defendant agreed to take a third polygraph test conducted by a police specialist. However, the defendant refused to stipulate to the admissibility of any results of the police-conducted test prior to submitting to that examination.

Officer Arthur Bell, polygraph examiner for the Portland Police Bureau, conducted the third polygraph examination with the defendant on May 6, 1981. Officer Bell noted that the defendant appeared nervous and admitted that he had worked all day and that the evening before he had smoked marijuana and consumed beer. The defendant was asked specific questions by the examiner which included whether he forced the victim into having sex on April 3, 1981. Polygraph examiner Bell, after finding the results of the test were inconclusive, noted that there was a great lacking in the degree of responsiveness shown in the tracings, stating:

Prior to trial, the state moved to exclude any reference by the defendant or the state to any and all polygraph examinations taken by the defendant. Following a prolonged hearing, during which three experts testified regarding the polygraph in general and defendant's examinations, the trial court ruled the evidence inadmissible. The defendant was convicted of rape in the first degree and sodomy in the first degree and appealed the convictions to the Court of Appeals, 64 Or.App. 747, 669 P.2d 1190, which held that, in the absence of a stipulation, polygraph examinations are not admissible, citing State v. Green, 271 Or. 153, 531 P.2d 245 (1975), and State v. Bodenschatz, 62 Or.App. 606, 662 P.2d 1, rev. den. 295 Or. 446, 668 P.2d 382 (1983). We allowed review to address the defendant's contention that "[t]he defendant should have been allowed to introduce evidence regarding his submission to and truthful completion of polygraph examination."

THE ADMISSIBILITY OF SCIENTIFIC EVIDENCE

The term "scientific" as we use it in this opinion refers to evidence that draws its convincing force from some principle of science, mathematics and the like. Typically, but not necessarily, scientific evidence is presented by an expert witness who can explain data or test results and, if necessary, explain the scientific principles which are said to give the evidence its reliability or accuracy. See Lilly, An Introduction to the Law of Evidence 400 (1978).1

Prior to the enactment of the Federal Rules of Evidence in 1975 (and prior to the enactment of the Oregon Evidence Code in 1982), most federal and state courts facing the problem of the admissibility of scientific evidence relied on a test having its genesis in Frye v. United States, 293 F. 1013 (D.C. Cir.1923). The Frye test, as it has become known, provides that before a court may admit scientific evidence the scientific principle "must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. at 1014. In this opinion we review the extensive history of the Frye test, evaluate alternative tests adopted by our Court of Appeals and other states, and abandon these special tests in favor of resolving the problems of admissibility of scientific evidence by relying on traditional evidence law as codified in the Oregon Evidence Code.

The door was left open by the Oregon Legislature and the writers of the Oregon Evidence Code for this court to adopt a new approach to the admissibility of scientific evidence. The commentary to OEC 702 states:

In response, we adopt traditional admissibility standards for expert testimony as set forth in our Oregon Evidence Code.

Justice Mark McCormick of the Supreme Court of Iowa, in his thesis Scientific Evidence: Defining a New Approach to Admissibility, 67 Iowa L.Rev. 879, 880 (1982), contends:

Under the traditional approach, expert testimony is subject to two main constraints. First, expert testimony must be relevant under OEC 401:

Second, expert testimony must provide some assistance to the trier of fact under OEC 702:

Under the Oregon Evidence Code and traditional evidence law, expert testimony is admissible if it is relevant under OEC 401 and will help the trier of fact in deciding a disputed issue. To be helpful, the subject of the testimony must be within the expert's field, the witness must be qualified, and the foundation for the opinion must intelligibly relate the testimony to the facts. If these conditions are satisfied, the testimony will be excluded only if it is unduly prejudicial, repetitive, or falls under some other exclusionary provision as provided in OEC 403:

In applying OEC 401, 702 and 403, this court must identify and evaluate the probative value of the evidence, consider how it might impair rather than help the factfinder, and decide whether truthfinding is better served by exclusion or admission.

This case and the case of State ex rel Gerttula v. Hunnicutt, ___ Or. ___, 687 P.2d 777 (decided this date), present questions which do not turn on the facts of the specific case and are not settled by the trial court's decision. See M. McCormick, supra, 67 Iowa L.Rev. at 882. This court, although informed by the trial record and assisted by the trial court's determination, accepts the legislature's invitation as expressed in the quoted commentary and lays down a general rule that unstipulated polygraph evidence is inadmissible under any provision of the Oregon Evidence Code.

STANDARDS USED TO DETERMINE THE ADMISSIBILITY OF SCIENTIFIC EVIDENCE

A. REASONABLY RELIABLE TEST: Kersting

When the issue of admissibility of the polygraph evidence was presented to the trial court in this case, counsel and the trial judge discussed at some length the effect the "reasonably reliable" test adopted by the Court of Appeals in State v. Kersting, 50 Or.App. 461, 623 P.2d 1095 (1981), aff'd on other grounds 292 Or. 350, 638 P.2d 1145 (1982), might have in determining the admissibility of expert testimony concerning polygraph results. The Court of Appeals defined the test as follows:

Kersting involved the admissibility of expert testimony evaluating the novel scientific technique of microscopic hair analysis, not the admissibility of polygraph results.

We allowed review in Kersting to consider whether the Court of Appeals erred in adopting the "reasonably reliable" test, but found that we could not reach the issue because the challenged evidence was not opinion testimony of experts, but "testimony of mere observations, albeit observations aided by devices." 292 Or. at 354, 638 P.2d 1145. Therefore, this court has not passed on the "reasonably reliable" test formulated by the Court of Appeals.

B. THE GENERAL ACCEPTANCE TEST: Frye

In Kersting, the Court of Appeals noted that the case of Frye v. United States, 293 F. 1013 (D.C. Cir.1923), formed the genesis of the rule requiring that prior to the admission of expert testimony based on the application of a scientific technique, a foundation must be laid that the technique has obtained general acceptance within the relevant scientific community. Frye involved a defendant's attempt to introduce evidence of a rudimentary polygraph test which indicated his innocence. The Court of Appeals noted that a minority of courts had rejected the Frye approach as unnecessarily restrictive to the admissibility of otherwise scientific evidence. The Court of Appeals acknowledged that this court has relied on Frye in excluding the results of polygraph examinations and quoted this court's statement from State v. Green, supra, 271 Or. at 165-66, 531 P.2d 245:

In 1956, the Ninth Circuit adopted the Frye standard in Lindsey v. United States, 237 F.2d 893 (9th Cir.1956), and it has consistently applied it in polygraph cases.

In United States v. DeBetham, 470 F.2d 1367 (9th Cir.1972), cert. den. 412 U.S. 907, 93 S.Ct. 2299, 36 L.Ed.2d 972 (1973), the defendant sought to introduce exculpatory polygraph evidence. During a four-day preliminary hearing, the defendant presented "volume after volume of testimony" by experts from the fields of polygraphy, psychology, psychiatry and physiology, all vigorously supporting the accuracy of polygraph evidence. Relying on Frye, the court concluded that despite a strong showing made by the defendant, "we are not ready to say that the trial judge abused his discretion in rejecting the offer." 470 F.2d at 1368.

Some observers believe the general acceptance test of Frye should not be left to the trial judge's discretion. Commenting on United States v. DeBetham, supra, Professor Ronald S. Mathias recently stated:

The Maryland Supreme Court in Reed v. State, 283 Md. 374, 381, 391 A.2d 364, 367 (1978), avoided leaving any discretion to the trial court in passing on the admissibility of scientific evidence when it said:

In a 1983 Symposium on Science and the Rules of Evidence sponsored by the National Conference of Lawyers and Scientists, Paul C. Gianelli, Professor of Law, commented in defense of the Frye test:

Professor Gianelli then noted criticisms of the Frye test by stating:

Professor Gianelli concluded his defense of Frye by observing that if courts are going to make mistakes in assessing the validity of a scientific technique, they should err on the side of excluding reliable evidence rather than on the side of admitting unreliable evidence. Id. at 207.

C. THE RELEVANCY TEST.

The principal alternative approach to the Frye test is to treat scientific evidence in the same way that other evidence is treated, weighing its probative value against countervailing dangers and considerations. Professor McCormick advocated this position in his 1972 text:

Professor Stephen Saltzburg commented at the 1983 Symposium on Science and Rules of Evidence:

The consensus of the distinguished participants3 in that symposium was that courts should reject the Frye test because it is too conservative or ambiguous. Nevertheless, they found the relevancy test not satisfactory because it is too nebulous. In sum, these legal and scientific experts reached a consensus that the screening function of Frye should be retained but that the wording should be improved to promote clarity in the procedure and certainty in its effect. However, they were unable to draft or agree upon the wording of any new test.

We generally agree with Professor McCormick's basic approach to the admission of scientific evidence. His approach does not focus on the Frye "general acceptance" test or the Kersting "reasonably reliable" test, but resolves the issue by applying traditional evidence concepts. His theory is essentially a compilation of the standards for probity of OEC 401 and OEC 702 weighed against the possible prejudicial effect of evidence in OEC 403, set out supra 754-755.

However, we believe the "relevancy" test is strengthened by consideration of certain factors set forth by Professor Berger and Judge Jack Weinstein in their 1982 work on evidence. In determining whether scientific evidence is probative under OEC 401 and the relevancy and prejudice analysis implicated in OEC 702's helpfulness standard, we believe the seven factors set forth by those authors in 3 Weinstein's Evidence 702[03], pp. 702-15 to 702-21 (1982), provide structure and guidance4 in applying these rules of evidence. The salutary aspect of the Frye "general acceptance" test is retained, not as a prerequisite to admissibility, but as one of seven steps in the screening process. Elements of the Kersting "reasonably reliable" test are filtered through all the factors. To determine the relevance or probative value of proffered scientific evidence under OEC 401 and OEC 702, the following seven factors are to be considered as guidelines:

The existence or nonexistence of these factors may all enter into the court's final decision on admissibility of the novel scientific evidence, but need not necessarily do so.5 What is important is not lockstep affirmative findings as to each factor, but analysis of each factor by the court in reaching its decision on the probative value of the evidence6 under OEC 401 and OEC 702.

THE POLYGRAPH

Before we discuss these seven factors in reference to polygraph evidence, we set forth a brief description of the polygraph and polygraph technique.

Dr. Stanley Abrams, a Ph.D. in clinical psychology, testified in this case as to the theoretical basis of polygraphy as follows:

Dr. Abrams' testimony about the polygraph is not unique to this case. Further explanation of the polygraph technique has been described by Chief Judge Gibson of the Eighth Circuit in United States v. Alexander, 526 F.2d 161, 163 (8th Cir.1975):

Prior to the examination, the examiner becomes informed about the facts of the case. The actual polygraph examination begins with a pre-test interview between the examiner and the subject.7 During the pre-test interview, the examiner, with the help of the subject, constructs the wording of the questions that are to be asked during the examination.8 Generally, three types of questions are used in polygraph examinations: relevant questions, irrelevant or neutral questions, and control questions. The relevant questions concern the subject's guilt or innocence of the crime charged. Irrelevant questions are used at the beginning and end of the test and relate to neutral topics such as date of birth, name and age. Control questions serve as a basis of comparison with the relevant questions. Control questions are questions about acts of wrongdoing of the same kind as the incident under investigation, and the one to which the subject, in all probability, will lie or to which his answer will be of questionable validity in his own mind. See Reid & Inbau, Truth and Deception 28 (2nd ed. 1977). In addition to developing the questions for the examination, the pre-test interview is used by the examiner to gain the confidence of the subject, to motivate the latter to participate seriously in the examining procedure and to cause the subject to believe that the test will reveal a lie. The examiner does this by administering calibration and "stim" tests.9

After the pre-test interview, the actual examination takes place. The examiner asks all the previously prepared questions, both relevant and control. The physiological responses are recorded. The polygrapher repeats the process one or more times, changing the order of the questions.10

After the examination, the examiner conducts a post-test interview. During this interview, the results of the polygraph test are discussed with the subject. If the results indicate deception, an attempt is made to determine if other factors could be responsible for the result. If other factors were responsible, the questions are reworded and the test readministered. The subject is given the opportunity to compare his deceptive response on the "stim" test with the same response on the questions related to the crime under investigation. Abrams, A Polygraph Handbook for Attorneys 89-90 (1977).

1. The technique's general acceptance in the field.

There are several different types of polygraphic examinations, each based on different assumptions and each possessed of different degrees of accuracy. If the question is asked, "Should the results of polygraph examinations be admissible as evidence?," the response should not be an answer, but another question: "What type of polygraphic examination produced the results?" Dr. David Thoreson Lykken, a Professor of Psychology and Psychiatry at the University of Minnesota Medical School, collects in his book, A Tremor in the Blood 149 (1981), the main types of polygraph examinations:

Lykken carefully evaluates each test in separate chapters in his book and then summarizes the tests by name, originator, subject of "control" questions and comments on validity as follows:

TABLE 12-1. The main types of polygraphic lie tests. Unless the test conclusion is based solely on objective scoring of the polygraph charts, any of these methods degenerates to a clinical interview, its validity determined by the intuitive skills of the examiner. Typical "human lie detectors" seem to be wrong about 25% of the time.

----------------------------------------------------------------------------

    Name of Test     Originator  Subject of "Control"        Comment
                                       Questions
----------------------------------------------------------------------------

Relevant/Irrelevant    Larson    Irrelevant, innocuous   The earliest
  (R/I) (General                 matters.                method, yields many
  Series Test)                                           false-positives.

  Lie Control Test      Reid     Past misdeeds similar   Standard method for
       (LCT)                     to but less serious     specific issue
                                 than crime in           work. Only method
                                 question; answers       tested for
                                 assumed lies.           validity; 64%-72%
                                                         average, half of
                                                         truthful subjects
                                                         fail.

  Zone of Comparison  Backster   Same as LCT.            Variant of LCT;
       (ZOC)                                             similar
                                                         assumptions,
                                                         equivalent
                                                         validity.

  Truth Control Test    Reid     Fictitious crime;       Seldom used, never
       (TCT)                     subject led to          tested for
                                 think he is equally     validity. Requires
                                 suspect, equally at     elaborate deception
                                 risk.                   of suspect.

  Positive Control     Reali     Subject required to     No validity data.
      Test (PCT)                 answer each question    Assumes that forced
                                 with a lie, then        "lie" as arousing
                                 truth; lie is the       as real lie, forced
                                 control.                truth equivalent to
                                                         volunteered truth.

  Relevant Control   (evolved)   Only relevant           Standard employee
    Test (RCT)                   questions; serve        screening test.
                                 as controls for         Widely used; no
                                 each other.             validity data.

  Peak of Tension     Keeler     Like a multiple-choice  Only examiner and
      (POT)                      item; incorrect         guilty subject know
                                 alternatives are the    correct
                                 controls.               alternative.
                                                         Several POT items
                                                         yield a Guilty
                                                         Knowledge Test. No
                                                         validity data.

  Searching Peak of   Keeler     As above but examiner   Useful only if
  Tension Test (SPOT)            does not know correct   indications can be
                                 alternative.            confirmed; a search
                                                         procedure rather
                                                         than a test.
----------------------------------------------------------------------------

Although Lykken is critical of all polygraph tests and results, he recognizes that the positive control test, the relevant control test and the peak of tension test are widely used and are generally accepted techniques in the field of polygraphy. The relevant control test and the peak of tension test were utilized in this case. As previously mentioned, polygraph experts in this case found the relevant control test to be inconclusive. The defendant's central offer of proof was the result of the peak of tension test conducted by criminal defense polygraph examiner Simmons. The peak of tension test depends on the examiner having knowledge of details of the crime that the suspect should recognize only if he is guilty. In this case, specific information that reputedly was not made known to the defendant was communicated to the polygraph examiner. This information apparently was gleaned from the police reports by polygrapher Simmons. Simmons testified on direct examination:

Reid and Inbau, in their book, Truth and Deception (2nd ed. 1977), claim the peak of tension test persists as a reliable indicator of deception even after an intensive interrogation or after a full complement of control question tests. Therefore, they teach that it is advisable whenever circumstances permit to administer a peak of tension test even though the number of tests conducted at any one sitting may amount to more than five or six. Id. at 55.

So far as we can determine, the peak of tension test is taught in every modern school of polygraphy.11

2. Qualification of experts.

Polygraphers must be licensed by the State of Oregon and Oregon statutes regulate their qualifications. ORS 703.010 to 703.990 regulate all "persons who purport to be able to deduct deceptions and to verify the truth of statements through the use of instruments and mechanical devices, including but not limited to lie detectors, polygraphs and deceptographs."

ORS 703.090 provides that an applicant for a license as a general polygraph examiner must:

ORS 703.060 describes the two types of polygraph examiner licenses: interns and generally licensed examiners. The public records of the Board on Police Standards and Training reveal that presently there are 16 interns and 35 licensed polygraphers in this state.

The fact that the State of Oregon requires basic qualifications for examiners does not guarantee the examiners' expertise at the time of trial. Professor Inbau, a co-author of the polygraph text, Truth and Deception (2nd ed. 1977), testified before a Congressional committee, that "only about 20 percent of the individuals who hold themselves out as examiners possess, in our opinion, the training and skill required for competency in the field."12

In this case, Dr. Stanley Abrams testified. His qualifications are set out in the introduction to his book, A Polygraph Handbook for Attorneys (1977):

Polygrapher Simmons, who also testified for the defense, is licensed by the State of Oregon and is a member of the American Polygraphy Association and the Northwestern Polygraphy Examiners Association, has practiced polygraphy for four years as an independent examiner doing mostly criminal defense work for private attorneys in criminal cases. He holds a Bachelor of Science degree in the Social Sciences from the Oregon College of Education and graduated from the Backster School of Lie Detection in San Diego, California, after some 250 hours of specialized polygraphy training. He has conducted hundreds of polygraph examinations and passed a written test for polygraph technique. The trial court would be fully justified in reaching the conclusion that both Dr. Abrams and polygrapher Simmons were well-qualified as experts in their field.

3. The use which has been made of the technique.

The New York Civil Liberties Union conducted a study on polygraphs and employment. In an article entitled Polygraphs and Employment: The Myth of Lie Detection, NYCLU Privacy Project (June 1981), by Trudie Hayden, the author points out that up to 500,000 polygraph tests are administered nationally by employers as a pre-condition to employment. Although we do not know the numbers, it is common knowledge that police13 and law enforcement agencies utilize polygraph examinations routinely in the investigation of criminal activity. Extensive use of polygraphy is not equivalent to general acceptance by the relevant scientific community as set forth in the Frye decision. Widespread use may have some bearing on probity, but is certainly not determinative.

4. Potential rate of error.

The accuracy of the polygraph has been the subject of numerous tests, set out infra at ___. Accuracy can be broken down into two categories: reliability and validity. The reliability of a test is the consistency with which the test measures whatever it is that it measures. For example, if 100 people were given polygraph examinations five times, and in each test the same 85 people were found to be telling the truth, the test would be very reliable. The validity of the test is the extent to which the test measures that which it claims to measure. Using the same example from above, if only 30 of the 85 people who were found to be telling the truth actually were telling the truth, the test would not have a high degree of validity. A test can be very reliable but have a low degree of validity; on the other hand, a test that is unreliable cannot have a high degree of validity.

Determining the validity or reliability of polygraph examinations is difficult because the truth or falsity of the findings is rarely established subsequent to the examination. Dr. Abrams testified that in real life research the polygrapher does not have the opportunity to verify results in 40 percent of the cases. Furthermore, as Reid and Inbau point out:

As previously mentioned, the term "accuracy of polygraphy" is ambiguous because in addition to the problems listed by Reid and Inbau, the researchers do not distinguish which type of polygraph test is being evaluated nor do they distinguish between reliability and validity. For instance, the Police Polygraph Journal, 1980-81, reports a partial list of accuracy ratings of polygraph tests without reference to the type of test or the basis for the determination of accuracy:

  SOURCE                                    ACCURACY OF POLYGRAPH

  Barland, Gordon H.                                89.7%
  University of Utah

  Bersh, Philip J.                                  92.4%
  Temple University
  Study for the U.S. Army

  Blum, Richard H. &                                96.2%
  Osterloh, William
  Stanford University

  Edel, Eugene C. &                                 95.0%
  Jacoby, Jacob
  Study for U.S. Government

  Horvath, Frank S. &                               87.8%
  Reid, John E.

  Lahri, S.K. &                                     90.0%
  Gaunguly, A.K.
  Government of India

  Podlesny, John A. &                               94.0%
  Raskin, David C.
  University of Utah

  Raskin, David C. &                                96.0%
  Hare, Robert H.
  University of British Columbia

  Slowik, Stanley &                                 87.2%
  Buckley, Joseph P.

  Wicklander, D. &                                  92.5%
  Hunter, F.

  Widack, Jan &                                     95.0%
  Horvath, Frank
  Jagolian University
  Poland

Reid and Inbau claim "[t]he percentage of known errors with the technique used in the laboratories of John E. Reid and Associates is less than one percent." Reid and Inbau, supra at 304. Arther also claims 99 percent accuracy in "The Scientific Investigator" (1965). The record in State ex rel. Gerttula v. Hunnicutt, supra (decided this date), reveals that Dr. Stanley Abrams testified that "when you break down the studies, it comes to roughly 98 percent accuracy."14 Recent objective evaluation studies, done by simply evaluating charts without the person tested present, demonstrate accuracy ranging from 67.0 percent to 90.9 percent,15 depending on the experience of the polygrapher.16

In addition to the problems with the studies examining the accuracy of the polygraph, the accuracy of the polygraph test itself is questionable. Subjects employ physical and psychological evasion tactics in an effort to "beat" the polygraph. They alter their breathing patterns by hyperventilating or taking heavy breaths when irrelevant questions are asked, flex, tense or contract muscles, bite on their tongue, and have been known to place a tack in their shoe and press down on it each time a question is asked. Lykken, supra at 238-39.

Some subjects attempt to evade detection by transferring their "thought processes from the relevant to the irrelevant questions or from the matter under investigation to some other one of [their] offenses or wrongdoings of a similar nature." Reid and Inbau, supra at 210-11. In the case of a psychopathic liar,17 the subject's deceptions are entirely conscious and deliberate. "Research has shown that the genuine psychopath is less bothered than the normal person is about danger in general and punishment in particular. He is relatively untroubled by impending unpleasantness, whether of his own making or not." Lykken, supra at 229-30. Because of their lack of response, psychopaths may be better able than normal subjects to "beat" the polygraph.18 There is little question but that there is a large population of psychopaths or, to use current terminology, persons with anti-social personalities,19 involved in the criminal justice system. In contradistinction to the psychopathic liar, the extremely emotional and anxious truthful person runs the risk of registering a falsehood.20

The motivation of the subject also affects the accuracy of the polygraph results. The subject's concern about the seriousness of the offense charged, his attitude regarding the fallibility of the polygraph and his state of mind if he knows adverse test results will not be used in court against him or if he knows he has previously "passed" a prior test,21 may influence the physiological responses of the subject.

There are other factors22 which potentially could affect the accuracy of the polygraph examination, including involvement in other similar acts or offenses, excessive interrogation prior to test, adrenal exhaustion, inadequate question phraseology, and physiological abnormalities due to the use of alcohol or other sedatives.23 All of the above-listed evasive techniques may affect the accuracy of the polygraph. However, polygraphers may be able to compensate for that impact because the evasive conduct is significant and may manifest itself on the tracings of the polygraph.

Although Dr. Abrams has testified that polygraph testing is 98 percent accurate, he cited no studies directed specifically to the peak of tension test to back up this estimate. Lykken contends there is no validity assessment of the peak of tension test. However, Dr. Stanley Abrams, in his treatise, A Polygraph Handbook for Attorneys 72 (1977), states: "Lykken in dealing with this [peak of tension] technique on a statistical basis indicated that with this approach the likelihood of determining guilty knowledge is extremely high." D.T. Lykken, Psychology and the Lie Detector Industry, Amer. Psychologist 29 (1974).

An article in Polygraph magazine24 reports that a witness from the Office of Technology Assessment for Congress testified that an "overall measure of validity [of polygraph examinations] is not possible." After an exhaustive review of the literature in the field, that governmental agency official concluded: "Central to legal, legislative and scientific assessments of polygraph tests are their validity. Yet, despite many decades of judicial, legislative and scientific discussion, no consensus has emerged about the accuracy of polygraph tests." Id. at 238.

We conclude no judgment of polygraph testing's validity or potential rate of error can be established based on available scientific evidence. The polygraph test is, in reality, a very complex process that involves much more than the instrument or the polygram. Although the instrument is essentially the same for all applications, the types of individuals tested, the training of the examiner, the purpose of the test, the type of test utilized, the questions asked, among many other factors, can differ substantially. In spite of all these variables in polygraph testing, the polygraph experts persist in telling the trier of fact, as they did in this case, that polygraph tests are virtually infallible.25

5. The existence of specialized literature.

Over one thousand articles have been written on the subject of polygraphy. Much of the literature is written by polygraphers wishing to advance the technology in their chosen field. Reid, Inbau, Dr. Stanley Abrams and F. Lee Bailey are among those who lead the supporters, while Dr. David Lykken is a noted critic of polygraphy. In any event, there is no dearth of literature available on this controversial subject. Some of the articles are written by scientists, some by lawyers, some by law enforcement personnel, and some by polygraphers. The articles are pro and con with respect to the polygraph's use in society, its validity and its admissibility in courts. The availability of this mass of literature may or may not be relevant in any given case.

6. The novelty of the invention.

Webster's Dictionary defines "novelty" as something "new or unusual." There is nothing especially "new" about the polygraph instrument, the polygram, or the various tests or existence of qualified examiners. The first attempt to utilize a scientific instrument in an effort to detect deception occurred about 1895. In that year, Cesare Lombroso used a blood pressure device for the purpose of detecting lies. He conducted some rudimentary experiments in the field of detecting deception. In 1915, William Moulton Marston, a lawyer and Ph.D. from Harvard University, developed a polygraph instrument which consisted essentially of the instrument commonly used by physicians in determining a patient's blood pressure. He also recorded respiration and experimented with the galvanometer to record skin resistance changes.26

Reid and Inbau report that:

Other experts who became prominent in the field include Arther and Backster. Arther became the Director of the National Training Center for Polygraph Science in New York, and Backster founded the Backster School of Lie Detection in San Diego, California, which was attended by polygrapher Simmons. The Gormac Polygraphy School of Arcadia, California, which was attended by the other two polygraphers involved in this case, is another recognized school of polygraphy.

Marston's crude pioneering instrument has been replaced by sophisticated computerized instruments manufactured by such firms as Stoelting and Lafayette. Dr. Abrams uses the Lafayette and, in this case, Simmons and Bell used the Stoelting. There is little difference in the instruments themselves. See Abrams, A Polygraph Handbook for Attorneys 54-60 (1977).

If polygraphy dates back some 90 years and the instruments are not novel, what causes polygraph evidence to be considered "novel scientific evidence"? The novelty of polygraphy arises because it is the only scientific evidence utilizing instrumentation that attempts to convey to a jury whether a witness has been deceptive or truthful. In that sense, polygraphy is truly novel and unique. With rare exceptions, for example, United States v. Ridling, 350 F.Supp. 90 (E.D.Mich. 1972); United States v. Zeiger, 350 F.Supp. 685 (DC D.C. 1972); State v. Dorsey, 88 N.M. 184, 539 P.2d 204 (1975); State v. Sims, 52 Ohio Misc. 31, 369 N.E.2d 24 (C.D. 1977), state and federal courts in this country have rejected the admissibility of such evidence in our trial courts.

7. The extent to which the technique relies on the subjective interpretation of the expert.

The final factor which may be considered is the extent to which the technique relies on the subjective interpretation of the expert. Authorities agree that the accuracy of polygraph evidence depends upon the expertise of the examiner.27

Reid places great importance on observing and noting a subject's behavior during the pre-test interview, the actual test and the post-test interview. In 1953, he and Arther developed a list of "behavior symptoms" which purportedly discriminated between lying and truthful subjects during a polygraph examination. According to this study, if the subject appears nervous, resentful, aggressive, appears to be in a shocked condition, exhibits "mental blocks," has a dry mouth or a gurgling stomach, refuses eye contact, moves restlessly, appears "overly friendly or polite," describes himself as religious, complains of pain from the blood pressure cuff, being eager to finish the examination and leaves promptly — all these are behavior symptoms of the liar. However, if the subject appears confident, eager to undertake the examination, sincere and straighforward, the subject is exhibiting symptoms of truthfulness.28

Polygraph test results may be altered by the examiner's preconceptions as to factual elements of the case or the guilt or innocence of the subject. If the examiner has an accusatory tone of voice, rather than a neutral tone when asking the questions, the subject's response may be altered. If the examiner is biased as to the subject's guilt or innocence, the questions may be framed differently. Furthermore, any preconceptions or biases are likely to influence the examiner's final interpretation of the polygraph charts.29

The results of the test depend on the training and experience of the examiner. In addition to operating the polygraph mechanically, the examiner needs to know how to conduct a pre-test interview. The examiner must be able to frame appropriate questions, read and interpret the polygraph charts, detect indications of use of depressant drugs and analyze the subject's behavior symptoms. A study conducted by Horvath and Reid30 to determine if polygraphers were able to diagnose deception solely from analysis of polygraph records indicated that an inexperienced examiner (one with less than six months' experience) had the poorest consistency (79.1 percent) and the most experienced examiner had the best consistency (91.4 percent) of all examiners in the study.

The nature of the polygraph examination is closer to a psychiatric evaluation than to objective scientific analysis such as fingerprints and ballistics. The polygraph technique is heavily dependent on the subjective evaluation of the expert both in the administration of the test and in reaching the result.

After evaluating these seven factors, we conclude that under proper conditions polygraph evidence may possess some probative value and may, in some cases, be helpful to the trier of fact. We now, therefore, evaluate the probative value of such evidence against its prejudicial effect.

SHOULD POLYGRAPH EVIDENCE BE EXCLUDED UNDER OEC 403?

In this opinion, as mentioned, we have accepted the invitation of the Legislative Assembly to adopt a "standard to be used in determining the admissibility of scientific evidence," see Commentary, Oregon Evidence Code 702. In doing so, this court has rejected the Frye standard of "general acceptance in the scientific community" as an unnecessarily rigid concept and has made "general acceptance" one of seven factors to be considered in determining the relevancy of scientific evidence. We also have rejected the Kersting "reasonably reliable" test as too simplistic but retain aspects of it to be considered in an overview of probativeness of scientific evidence. We have set forth seven factors to be used in connection with the definition of "relevancy" as defined in OEC 401 and to be utilized in determining the helpfulness test for expert testimony expressed in OEC 702. Having evaluated these seven factors in connection with OEC 401 and OEC 702, and finding that polygraph evidence may possess some relevancy, we now turn to the issue whether such evidence, if relevant, should be excluded under OEC 403, which emphasizes that although evidence may be probative the inquiry does not stop there. The evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.

This rule requires trial courts and, in some cases, appellate courts to evaluate the degree to which the trier of fact may be overly impressed or prejudiced by a perhaps misplaced aura of reliability or validity of the evidence, thereby leading the trier of fact to abdicate its role of critical assessment. See 3 Weinstein's, supra 702-19. The trial judge in the present case noted:

After careful evaluation of this issue he excluded the evidence, commenting:

Judge Unis's evaluation of the reasons for excluding polygraph evidence has been stated by many courts and many writers. We said as much in State v. Green, supra, 271 Or. at 169, 531 P.2d 245:

The Colorado Supreme Court concluded in People v. Anderson, 637 P.2d 354, 361 (Colo. 1981):

As was said in United States v. Addison, 498 F.2d 741, 744 (D.C. Cir.1974), the scientific evidence must not "assume a posture of mystic infallibility in the eyes of a jury of lay[persons]." This view is shared by many other courts. See, State v. Catanese, 368 So.2d 975 (La. 1979); United States v. Alexander, 526 F.2d 161 (8th Cir.1975); People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977).31 A Committee on Polygraphy of the New Jersey Supreme Court concluded that jurors would consider polygraph evidence as being infallible. Garvey, Polygraph (2) 116-21 (1973).

Polygraph evidence may well divert the trier of fact from the direct and circumstantial evidence presented in a case to a distorted valuation of the polygraph evidence. Polygraph evidence is not just another form of scientific evidence presented by experts such as ballistics analysis, fingerprint and handwriting comparisons, blood typing and neutron activation analysis.32 These other tests do not purport to indicate with any degree of certainty that the witness was or was not credible. By its very nature the polygraph purports to measure truthfulness and deception, the very essence of the jury's role. See, United States v. Alexander, supra, 526 F.2d at 169.

In addition to the potential misuse and overvaluation of the polygraph evidence, we are also concerned about the undue delay in administering justice that would occur if we were to allow admission of polygraph evidence in all cases. As previously noted, there are currently only 35 licensed polygraphers in this state who might be available to conduct testing of witnesses for trials in Oregon. In 1983, our circuit courts terminated 83,966 cases and our district courts terminated 457,632 cases. Of course, not all these cases would warrant polygraph testing of witnesses. Nevertheless, a substantial number of cases, whether tried or not, would involve the "lie detector" testing of potential witnesses. All this administrative burden could cause "undue delay" as set forth in OEC 403.

Furthermore, as well as disrupting the lives of many witnesses (which in some cases have already been burdened with interrogation by police officers, defense investigators, grand jury proceedings, preliminary hearings, pretrial motion testimony and trial testimony), the introduction of polygraph evidence at trial could result in a time-consuming and confusing battle of polygraph experts. In Commonwealth v. Fatalo, 346 Mass. 266, 191 N.E.2d 479 (1963), the Supreme Court of Massachusetts upheld the trial court's rejection of all evidence concerning a polygraph test. In referring to an offer of proof by the defendant, which the prosecution opposed, the opinion stated:

In United States v. Urquidez, 356 F.Supp. 1363 (DC C.D. Cal. 1973), the federal trial judge wrote:

He continued:

Although not in any sense determinative, these concerns are relevant to the issue whether evidence of questionable value is outweighed by "consideration of undue delay" as set forth in OEC 403.

Oregon Evidence Code Rule 403 codifies the common-law discretionary power of the trial judge in balancing probative value of evidence against its prejudicial effect. But, this so-called "balancing" rule does not always call for the exercise of discretion by the trial court. Notwithstanding the usual deference to trial court discretion, we as an appellate court retain our role to determine the admissibility of scientific evidence under the Oregon Evidence Code. After carefully evaluating evidence and arguments for and against the introduction of polygraph evidence within the context of OEC 401, 702 and 403, we conclude that the probative value of polygraph evidence is far outweighed by reasons for its exclusion.

OTHER GROUNDS FOR EXCLUSION OF POLYGRAPH EVIDENCE

We find no rule or provision in our evidence code or any Oregon evidentiary decision by this court allowing for any witness, lay or expert, whether utilizing scientific equipment or not, to pass upon the credibility of a trial witness. Although OEC 60833 provides that the credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, that evidence may refer only to character for truthfulness or untruthfulness. A polygrapher's opinion based on a polygraph examination that a witness was truthful would not qualify under OEC 608(1)(b) because the polygrapher would not have general personal knowledge about the witness's veracity. OEC 608(1)(b) allows persons familiar with the reputation of a witness to testify in opinion form as to the witness's general truthfulness or untruthfulness. This new rule allowing opinion testimony as to the general veracity of witnesses departs from the common-law restriction that a witness may only testify in the form of general reputation for veracity traits. It has no application to the admissibility of polygraph evidence.

OEC 608(2) expressly prohibits the admission of evidence of specific instances of conduct of a witness for the purpose of attacking or supporting the credibility of the witness. If, as in this case, a witness has passed a polygraph examination, the polygraph result constitutes a specific instance of conduct of the witness being offered for the purpose of supporting the credibility of the witness. Such extrinsic evidence is inadmissible under OEC 608(2).

OEC 608 complements and supports the long-standing position of this court that no witness may pass upon the credibility of another witness in respect to specific conduct. In excluding psychiatric testimony as to the truthfulness of witnesses, we said in State v. Walgraeve, 243 Or. 328, 333, 412 P.2d 23, 413 P.2d 609 (1966):

This rule was not changed by our recent decision in State v. Middleton, 294 Or. 427, 438, 657 P.2d 1215 (1983):

We certainly agree with Judge Irving Kaufman's eloquent statement supporting this position in excluding polygraph in United States v. Stromberg, 179 F.Supp. 278 (S.D.N.Y.), reversed in part on other grounds 268 F.2d 256 (2nd Cir.1959):

Although other traditional evidentiary grounds for exclusion of polygraph evidence may exist in any given case,34 we find discussion of such issues unnecessary here.

CONCLUSION

After analyzing the admissibility of polygraph evidence under the Oregon Evidence Code and existing caselaw, we conclude that upon proper objection polygraph evidence35 shall not be admissible in any civil or criminal trial in this state36 or any other legal proceeding subject to the rules of evidence under our Oregon Evidence Code.37

The Court of Appeals is affirmed.