In this case we are called upon to reconsider this Court's rule excluding for any purpose evidence of a polygraph examination. Our review convinces us that at present such evidence should not be admitted in criminal trials. However the reasons for the exclusion of polygraph evidence during trial do not militate against its introduction within the trial Court's discretion in a post-trial proceeding such as a hearing on a motion for a new trial.

Defendant Joseph A. Catanese is charged by bill of information with armed robbery. Catanese is prepared to admit that shortly after the crime he picked up and gave an automobile ride to the gunman who committed the robbery. However the defendant seeks to show by his testimony and the results of a polygraph examination that he was unaware of the robbery and innocent of any involvement in the crime.

The state has consistently objected to the introduction of the polygraph evidence at trial relying on previous decisions of this Court. After Catanese was denied a pre-trial hearing on his request to introduce evidence of a proposed polygraph examination during trial he applied to this Court for relief and we ordered the trial court to hold an evidentiary hearing. 350 So. 2d 677 (La.1977). Following a contradictory hearing the trial Court concluded that if the polygraph examination were conducted under safeguards prescribed by Court the testimony of the polygraph expert explaining the test results would be admissible at trial. *fn1 The State applied here for supervisory review and we brought the case up to consider whether the trial Court's ruling should be reversed or the previous decisions of this Court on the subject should be overruled.

Modern polygraph technique employs an apparatus consisting of scientific instruments which measure and record three or more involuntary physiological responses. *fn2 The typical polygraph instruments in use today record changes in blood pressure pulse rate respiration and "galvanic skin response" *fn3 which occur while the subject is being asked carefully prepared questions. *fn4 Before the test the examiner prepares the questions from information supplied to him by an interview with the subject and by other persons familiar with the subject or the particular case under investigation. The examiner also prepares the subject for the test by explaining to him the theory and measurements involved in the polygraph technique. After the examination the examiner interprets the subject's physiological responses recorded during the test in conjunction with all other information gathered by the examiner including his careful observation of the subject before and during the examination. Based upon these interpretations and information the examiner arrives at an opinion as to whether the subject responded truthfully to questions during the test. *fn5

The theory underlying polygraph technique is based on several propositions concerning human psychology and physiology: The autonomic nervous system normally responds involuntarily to stress. An individual who is deceptive when questioned about a meaningful subject will experience stress. The polygraph apparatus is capable of accurately detecting the involuntary responses of the autonomic nervous system which result from stress. If the subject attempts to control his autonomic nervous system this conscious effort is evident to a competent examiner through observation or analysis. *fn6

The first appellate decision on the admissibility of polygraph evidence was Frye v. United States 54 App. D.C. 46 293 F. 1013 (1923). In that case the defendant offered the testimony of an expert witness regarding the results of a systolic blood pressure deception test which had been performed on the defendant. Court of appeals upheld the exclusion of this testimony in the following language:

"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 Court in admitting expert testimony deduced from the discovery development and experiments thus far made." 54 U.S.App.D.C. at 47 293 F.2d at 1014.

This "general acceptance" test has been rigorously applied by many federal and state courts to exclude evidence of polygraph tests. *fn7

In the relatively few cases in which this Court has considered the admissibility of polygraph evidence in criminal trials the expert's testimony has been excluded by a rationale similar to the Frye "general acceptance" rule. In State v. Refuge 270 So.2d 842 844 (La.1974) for example this Court noted:

"(T)he universal rule in American jurisdictions is that the results of a lie detector test are inadmissible when offered by either party either as substantive evidence or as relating to the credibility of a party or a witness. The essential reason is the lack of probative value and insufficient scientific reliability as well as the possible unduly prejudicial effect upon lay triers of fact."

See also State v. Whitmore 353 So.2d 1286 (La.1978); State v. Davis 351 So.2d 771 (La.1977); State v. Schouest 351 So.2d 462 (La.1977); State v. Weeks 345 So.2d 26 (La.1977); State v. Governor 331 So.2d 443 (La.1976); State v. Corbin 285 So.2d 234 (La.1973).

The "general acceptance" standard has been the subject of considerable scholarly criticism in recent years. *fn8 In particular it has been suggested that the requirement of "general acceptance" is tantamount to a requirement that the validity of the test be susceptible of such demonstration as to enable the trial court to take judicial notice of the fact. Clearly the criteria used for determining the admissibility of scientific evidence should not require the instant and unquestionable demonstration required for the judicial notice of scientific facts. *fn9 Other types of scientific evidence have been admitted into evidence under less stringent standards which merely require the evidence to be "an aid to the jury" or "reliable enough to be probative." *fn10

Professor McCormick and others have suggested that there should be no special rule for the admissibility of polygraphic evidence. C. McCormick Evidence SEC. 203 (2d ed. 1972); Trautman Logical or Legal Relevancy A Conflict in Theory 5 Vand.L.Rev. 385 395 (1952). Instead these scholars would submit the evidence in each case to a balancing process. Any relevant conclusions supported by a qualified expert witness would be received unless there were other reasons weighing more heavily in favor of its exclusion. The probative value of the evidence in each case would be balanced against reasons for its exclusion such as the familiar dangers of prejudicing or misleading the jury and undue consumption of time to determine the question of admissibility. *fn11

Recent jurisprudence has also made significant inroads into the "general acceptance" standard. Many jurisdictions now admit polygraph evidence upon prior stipulation of the parties *fn12 and a number of recent cases have stated that polygraph test results would be admissible without stipulation and over objection of opposing Counsel under a lesser standard than "general acceptance." *fn13

We agree that the "general acceptance" standard of Frye is an unjustifiable obstacle to the admission of polygraph test results. In the present case defendant's expert witnesses testified that the modern polygraph examination achieves a high degree of accuracy when conducted by well qualified examiners under proper test conditions. The trial court record supports much of the literature which we have examined that is critical of the restrictive "general acceptance" standard and urges a meaningful reexamination of the admissibility of polygraph evidence. *fn14 Since Frye was decided in 1923 law enforcement agencies and private industry have come to rely heavily on polygraph examinations for investigation of misconduct and for employment screening; *fn15 a national association of examiners the American Polygraph Association has been established for the purpose of formulating qualifications and ethical standards for polygraph examiners; *fn16 and many states have enacted statutes for regulating and licensing examiners. *fn17 Although the validity of the polygraph technique is not universally accepted within the scientific community *fn18 it appears that polygraph evidence when obtained under proper safeguards is as reliable as other kinds of scientific evidence accepted routinely by courts.

Nevertheless after considering the evidence in the instant case and studying the authorities and extensive literature in the field we conclude that it shall be the judicial policy of Louisiana to exclude polygraph evidence in criminal trials at this time. In doing so we do not rely upon the "general acceptance" standard which has barred admissibility in the past. Instead we reach this conclusion after carefully considering the arguments for and against the introduction of polygraph evidence. We recognize the high probative value of polygraph evidence when obtained under optimal conditions. However after engaging in a balancing process at the appellate level similar to that recommended by McCormick and other writers we conclude that at present in our court system the probative value is so outweighed by the reasons for its exclusion that the evidence should not be admitted in criminal trials. *fn19

The principal reasons for exclusion are interrelated: (1) Our fundamental concern is that the trier of fact is apt to give almost conclusive weight to the polygraph expert's opinion. *fn20 Many decisions in other jurisdictions seem to rest upon a judicial estimate of the tremendous weight which a polygraph test would have in the minds of a jury. See e. g. United States v. Alexander 526 F.2d 161 168-170 (8th Cir. 1975); People v. Barbara 400 Mich. 352 255 N.W.2d 171 (1977); People v. Leone 25 N.Y.2d 511 307 N.Y.S.2d 430 255 N.E.2d 696 (1969); People v. Davis 343 Mich. 348 72 N.W.2d 269 (1955); State v. Smith 113 Ohio App. 461 178 N.E.2d 605 (1960). Our own appellate experience with P.E.I. tests and other scientific evidence reflects a concern over the apparent readiness of both juries and trial Court to accept such evidence uncritically. See State v. Graham 360 So.2d 853 (La.1978); State v. Monroe 345 So.2d 1185 (La.1977); State v. Jones 316 So.2d 100 (La.1975). (2) Because of the potentially decisive character of polygraph evidence we are equally concerned about the quality of such evidence available in Louisiana. The polygraph technique is capable of a high degree of accuracy only when conducted under controlled conditions by an examiner who is highly qualified by his ability experience education and integrity. *fn21 At present Louisiana has no law providing for the licensing regulating and disciplining of polygraph operators. Although this Court could adopt rules establishing minimum qualifications for expert polygraph witnesses it could not effectively regulate or discipline them. The record in the instant case does not reflect the number of examiners available in Louisiana or the extent of their qualifications. If polygraph evidence were admissible in criminal trials highly qualified experts might not be readily available to both defense and prosecution in every case. Thus introduction of polygraph evidence in criminal trials would entrust key participation in the fact-finding process to persons not presently subject to effective judicial legislative or adversary control. (3) Even if litigants were afforded an adequate supply of highly qualified experts extensive procedural safeguards should be established either by court rule or legislation before the introduction of polygraph tests at trial. Otherwise there is apt to be either an inadequate check upon the quality of the evidence or an undue consumption of time involved in its introduction. Clarification is needed as to the nature of polygraph evidence and the purposes for which it may be introduced as well as a determination of the type and number of witnesses whose tests may be considered in a criminal case. In our judgment there has not yet been enough judicial experience with polygraph evidence in Louisiana to provide an adequate basis for judicial rule making on this scale.

The reasons for the exclusion of polygraph evidence from criminal trials do not necessarily prevent its use in all criminal proceedings. The polygraph technique has advanced to the point that it could be extremely valuable in criminal proceedings provided its admissibility is carefully limited to specific circumstances designed to insure the validity of the evidence and the proper administration of criminal justice. See Commonwealth v. A Juvenile 365 Mass. 421 313 N.E.2d 120 124 (1974). A number of courts have attempted to avoid the problems inherent in the use of polygraph evidence by limiting its admissibility to certain types of proceedings. The Michigan Supreme Court held that polygraph evidence while inadmissible at trial would be admitted in a hearing upon a motion for a new trial. People v. Barbara 400 Mich. 352 255 N.W.2d 171 (1977). Polygraph test results have been admitted into evidence in a number of preliminary and post-trial criminal proceedings. See State v. Jones 110 Ariz. 546 521 P.2d 978 (1974); State v. Watson 115 N.J.Super. 213 278 A.2d 543 (1971) (sentencing hearing); People v. Gerry Cal.Super.Ct. (February 27 1975) (discussed in N. Ansley Admissibility of Polygraph Evidence in Criminal and Civil Cases (1978)) (probation hearing); People v. Cutler No. A176965 (Super.Ct. Los Angeles County Cal. November 6 1972) 12 Crim.L.Rptr. 2133 (1972) (motion to suppress). See also United States v. Ridling 350 F. Supp. 90 (D.C.Mich.1972) in which admissibility of polygraph evidence was limited to perjury trials.

Although we conclude that polygraph evidence is inadmissible in criminal trials the reasons for our decision do not prevent its introduction in post trial proceedings within judicial discretion and subject to guidelines such as those laid down by the trial Court in the instant case. Because the defendant's guilt or innocence is not at issue in such proceedings there is less demand for the rigorous guarantees of accuracy which typify the rules governing introduction of evidence at trial. Consequently the reasons for excluding polygraph evidence in criminal trials are not necessarily compelling in post trial proceedings. This avenue of admissibility therefore should be open within the discretion of the trial Court whenever the evidence is reliable and will aid in a decision. Moreover the experience gained in this way will perhaps facilitate a more informed conclusion on the question of admissibility of polygraph results in criminal trials.

The capable trial Court in the instant case is to be commended for his very responsible approach toward solving a difficult problem. Had the question arisen in connection with a post trial proceeding we would not hesitate to affirm his decision. However for the reasons assigned we have concluded that at this time the probative value of polygraph evidence in criminal trials generally is outweighed too heavily by its accompanying dangers. The judgment of the trial court declaring the proposed polygraph evidence admissible is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

SUMMERS C. J. I agree with the reversal of the ruling of the trial Court otherwise I dissent.

TATE J. assigns reasons concurring in part dissenting in part.

MARCUS J. concurs and assigns reasons.

BLANCHE J. not participating.

Concurring: MARCUS

TATE (In part)

CONCUR: MARCUS Justice (concurring).

I concur in the adherence to the well-settled jurisprudence of this state holding that the results of the polygraph examination are inadmissible as evidence in criminal prosecutions. State v. Schouest 351 So.2d 462 (La.1977); State v. Governor 331 So.2d 443 (La.1976); State v. Corbin 285 So.2d 234 (La.1973). This would include in my opinion introduction of said evidence in "post-trial proceedings." I therefore disagree with the majority's statement that polygraph evidence may be introduced in post-trial proceedings within the discretion and subject to guidelines such as those laid down by the trial Court in the instant case. Since this case has not yet been tried this issue is not before us at this time. Accordingly I concur in the decree.

Dissenting: TATE (In part)

DISSENT: TATE Justice (concurring in part dissenting in part).

The majority's scholarly and comprehensive opinion has held that polygraph examinations should not be admissible in criminal jury trials. Under current conditions it is difficult to disagree with this conclusion.

The unexpressed major premise for the result is that whatever the reliability of such scientific evidence under controlled conditions in affording polygraph tests they are subject to abuse in criminal jury trials because of the undue weight we Americans tend to give to "scientific" demonstrations of supposed objectivity and because in the present state of the administration of criminal justice the use of such polygraph tests is subject to great abuse and is without adequate protection for the criminally accused as to the test being conducted in a truly reliable manner.

Nevertheless I respectfully suggest that these considerations however much they suggest the need for protective judicial mechanisms in the use of polygraph examinations do not themselves furnish an adequate reason why Court should reject the use of the results of the polygraph examination as In principle inadmissible because of their unreliability. Their widespread use in industry and in government are indicative that although their use may be distasteful their reliability is not. Court should not refuse the admission of this type of evidence on the non-existent basis of its unreliability when the real reason is our failure as yet to devise adequate protective mechanisms to assure the reliability and fairness of the testing conducted insofar as its being used in jury trials in criminal courts.

The chief difference in the viewpoint thus expressed is that I would not adopt any Per se rule of inadmissibility of a polygraph examination (based on their Supposed unreliability) although I might suggest very strict safeguards including adequate attorney consent of an accused and strict monitoring of the conditions of the test before it could be used. Especially in jury trials it would seem to me appropriate to apply these safeguards strictly and also to weigh whether the probative value of the test was appropriate as to a particular issue (e. g. one-on-one contradictions) so as to outweigh the possible jury prejudice involved in the use of this type of evidence.

Further it seems to me that unquestionably polygraph tests would be admissible in pre-trial proceedings (as well as post-trial as suggested by the majority). For instance too often in motion to suppress situations we have a direct contradiction between the testimony of the accused and the testimony of the searching and arresting officer which swearing matches to my mind might be more satisfactorily resolved with the aid of polygraph examinations than by judgment calls as to which of two apparently equally credible versions is true.

Furthermore once we lay aside the unreliability rationale there seems to be absolutely no sensible reason to exclude the results of polygraph tests conducted under reliable circumstances with the stipulation of both the state and the defendant that the results of the test can be admitted in evidence on the trial on the merits.

Finally we may fear state abuse if polygraph examinations became a customary method of police interrogation (just as pre-Miranda police interrogation with inadequate safeguards to the accused often led to unreliable confessions in the place of adequate investigation through interrogation of other witnesses and collection of objective evidence). Whatever the merit of such fears I am concerned that a Per se rule prevents the accused from using a reliable source of evidence which may prove his innocence. If the use of polygraph data is found to be sufficiently reliable in so many of the other social institutions of our society Court should not bar their doors for essentially arbitrary reasons to the use by an accused of a form of evidence of a great degree of reliability (if the testing is conducted under properly controlled conditions).