EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, December 26, 2015

Cream City Chronicles: Episode 2 of Unsolved & The History of Lie Detector Evidence in Wisconsin

On Tuesday, I posted an entry about the first episode of the Unsolved Podcast, a deep dive into the unsolved 1976 death and disappearance of fourteen year-old John Zera in Milwaukee, Wisconsin. This post is about episode 2 and the (in)admissibility of polygraph evidence in Wisconsin.



Episode 2 of Unsolved -- "Where do we start?" -- is about one of the initial suspects in the case, a construction worker at Zera's high school. The construction worker was a suspect principally because of a F.B.I. psychological profile of the likely perpetrator of the crime. The worker was also known as someone who bought or sold pot at the high school, and he initially had no alibi for the time when the State believed that Zera was killed.**

In an attempt to clear his name, the construction worker agreed to take a polygraph test, which he passed. The worker was never charged with Zera's murder. If he had been charged, however, his trial would have been held during an interesting seven year period of Wisconsin law.

In 1933, the Supreme Court of Wisconsin first addressed the admissibility of lie detector evidence. Ten years earlier, the D.C. Circuit Court of Appeals had determined that in Frye v. United States that 

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony.... (emphasis added)

Following up on Frye, the Wisconsin Supremes decided in State v. Bohner, 246 N.W. 314, 317 (Wis. 1933), that

We are not satisfied that this instrument, during the ten years that have elapsed since the decision in the Frye Case, has progressed from the experimental to the demonstrable stage....

While it may have some utility at present, and may ultimately be of great value in the administration of justice, it must not be overlooked that a too hasty acceptance of it during this stage of its development may bring complications and abuses that will overbalance whatever utility it may be assumed to have....It is our conclusion that the refusal of the trial court to admit this testimony was not error.

Just over four decades later, however, the Supreme Court of Wisconsin handed down its opinion in State v. Stanislawski, 216 N.W.2d 8, 13-14 (Wis. 1974), finding that

polygraph tests have moved from the ‘twilight zone’ of Frye to such degree of standing and scientific recognition that unconditional rejection of expert testimony based on polygraph testing is no longer indicated.

CONDITIONS FOR ADMISSION. Withdrawing an unconditional rejection of polygraph evidence does not necessarily mean that polygraph evidence is to have an unconditioned admissibility....Henceforth, in Wisconsin, expert opinion evidence as to polygraph tests may be admitted in a criminal case subject to the following conditions.

(1) That the district attoreny, defendant and his council all sign a written stipulation providing for defendant's submission to the test and for the subsequent admission at trial of the graphs, and the examiner's opinion thereon on behalf of either defendant or the state.

(2) That notwithstanding the stipulation the admissibility of the test results is subject to the discretion of the trial court, i.e., if the trial judge is not convinced that the examiner is qualified or that the test was conducted under proper conditions he may refuse to accept such evidence.

(3) That if the graphs and examiner's opinion are offered in evidence the opposing party shall have the right to cross-examine the examiner respecting:

(a) the examiner's qualifications and training;

(b) the conditions under which the test was administered;

(c) the limitations of and possibilities for error in the technique of polygraphic interrogation; and

(d) at the discretion of the trial court, any other matters deemed pertinent to the inquiry.

(4) That if such evidence is admitted the trial judge should instruct the jury that the examiner's testimony does not tend to prove or disprove any element of the crime with which a defendant is charged but at most tends only to indicate whether at the time of the examination defendant was telling the truth. Further, the jury members should be instructed that it is for them to determine what corroborative weight and effect such testimony should be given.

Basically, under the Stanislawski rule, polygraph results can come into evidence, but only if both the prosecution and defense stipulate to admissibility before the test is taken. Even with such a stipulation, the judge maintains the discretion to rule the results inadmissible if he believes that the testing was unreliable. Finally, the results are only admissible to corroborate the claims made by the prosecution or defense, and opposing counsel retains the right to cross-examine the polygraph examiner regarding the testing.

Seven years later, in 1981, the Supreme Court of Wisconsin changed its mind in State v. Dean, 307 N.W.2d 628 (Wis. 1981), which was mentioned in Episode 2 of Unsolved. According to the Dean court:

Essentially the view taken by the critics of the admit-on-stipulation approach is that the stipulation does little if anything to enhance the reliability of the polygraph evidence; the parties have merely agreed to the admission of the polygraph evidence thereby waiving their objection to the validity of the basic theory of the polygraph. We view this criticism as a serious challenge to the soundness of admitting polygraph evidence on the basis of a stipulation of the parties. The thesis of these critics, though perhaps contrary to the view of this court in Stanislawski, is essentially confirmed by our decisions in Lhost and in Mendoza. Although in Lhost,...we quoted studies that indicated that an unstipulated examination was probably less accurate than one subject to stipulation, we did not recognize the stipulated polygraph examination as necessarily reliable. Although the parties in Mendoza executed what appeared to be a thoughtful stipulation specifying the examiner, the time and place of examination and perhaps even some test questions, the stipulation proved ineffective to guarantee a reliable examination, because, as we have stated, a stipulation cannot cover all aspects of the test which might affect its reliability.

As a result, the court deemed polygraph evidence per se inadmissible in Wisconsin, even with a stipulation by both sides, which is still the state of the law.***

Putting this in layman's terms: In Stanislawski, the court recognized that polygraph evidence is a bit of a coin flip but felt comfortable giving judges discretion to admit such evidence for limited purposes when the parties agreed to admission ahead of time and retained the ability to cross-examine the polygraph examiner about his testing. In Dean, the court found that a prior agreement by the parties still didn't make polygraph evidence sufficiently reliable, meaning that a stipulation could not transform inadmissible evidence into admissible evidence.

Was the court right? Who knows. The construction worker's friend in the Zera case claimed that the worker told her after he passed the polygraph test that he had "fooled them all." Then again, it was alleged that the police sergeant in charge of the case was having affair with the friend, so...


*Host Gina Barton notes during the episode that criminal profiling was in its infancy in 1976 and less developed than it is today.

Screen Shot 2015-12-25 at 4.14.55 PM

Excerpt from the criminal profile in the Zera case

**Zera later was able to establish that he was at a doctor's appointment at 3:00 P.M., with his doctor saying that he was on time, did not appear nervous, and did not have any blood on him. Given that the medical examiner concluded that Zera died between 1:00 and 2:00 P.M., this seems like a reasonably solid alibi. 

***As was noted in the episode, however,  "[w]hile a polygraph test result is inadmissible in Wisconsin, see State v. Dean,... an offer to take a polygraph test is relevant to an assessment of the offeror's credibility and may be admissible for that purpose." State v. Pfaff.



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