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Reed v. Maryland9/6/1978
rnwine, 67 N.J. Super. 483, 171 A.2d 124 (App. Div. 1961), the issue before the court was whether a defendant who had voluntarily submitted to a polygraph test but who did not consent to the admission of its results was prejudiced by testimony of a detective who gave the test,
which testimony indirectly showed the result of the test. The court pointed out, "The record of the trial below is barren of any effort to lay a foundation with respect to the equipment used or to establish the technical qualifications of Detective John Latawiec, the polygraphic examiner, other than the fact that he was a sergeant associated, as such an examiner, with the New Jersey State Police." Id. at 487. It noted the ironic fact that Frye, the defendant in Frye v. United States, 54 App. D. C. 46, 293 F. 1013 (D. C. Cir. 1923), "was sentenced to life imprisonment. The blood-pressure deception test indicated his innocence, and this was subsequently corroborated when a third person confessed that he was the real murderer. Had the results of the test been admissible evidence, it is altogether probable that an innocent man would not have been convicted of murder," citing authorities. Id. at 493. Judge Foley in his concurring opinion, 67 N.J. Super. 499, said that "because the issue of the admissibility of such results was not before [the court, he was] unwilling to spell out generally, and for future guidance, the foundation of proof required to make the test results evidential," adding that it seemed to him "that this should await a case in which the issue squarely raised so that the decision therein m[ight] be construed in light of a live, rather than a hypothetical, factual complex." He further said:
"It is my view that dicta are to be avoided as far as possible and should be employed only where they serve to illuminate the holding in a case. I think that this is particularly true when the dicta involve a discussion of the present status of scientific information as it affects the law. The pace of research in science is so swift, and the impulse of those engaged in this field is so dynamic that the artisans of the law would be well advised to avoid fixing standards unnecessarily, which in future application may be found to be based on scientific concepts which are then outmoded. Compare, e.g., State v. Hunter, 4 N.J. Super. 531, 538 (App. Div. 1949), with State v. Miller, 64 N.J. Super. 262, 269-70 (App. Div. 1960)." Id. at 499.
In State v. Swanson, 225 N.W.2d 283 (N.D. 1974), another of the cases cited in the majority opinion, a defendant sought to introduce evidence of his willingness to take a polygraph test. The trial court refused to accept such evidence. The court said it was urged to overrule its decision in the case of State v. Pusch, 77 N.D. 860, 46 N.W.2d 508 (1951), and to accept the results of polygraph testing in criminal proceedings. After stating that " here ha been some evidence of a breach in the wall of judicial opposition to utilizing this device," citing several cases, the court said:
"This court may be required to re-examine its decision in State v. Pusch, supra, if presented with an appropriate record. Such a record is not present in this case. There was no actual test made of this defendant, he merely offered to take such a test. There was little evidence offered concerning the scientific reliability and acceptance of the polygraph or the qualifications of its proposed operator. The testimony of the officer called to explain the proposed test indicated that the polygraph would be inconclusive in a case of this type." Id. at 285.
In Romero v. State, 493 S.W.2d 206 (Tex. Crim. App. 1973), another of the cases cited in the majority opinion, Frye is simp
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