People v. Davis ( 1974 )

O’Hara, J.

(concurring in result). I concur in the result reached by Judge Allen in the instant case.

I must, however, register my vigorous disagreement with the statement that "[a] proper jury instruction should include [an] admonition to disregard a reference to a polygraph test because of its unreliability”. (Emphasis supplied.)

Undoubtedly, such testimony or the results of a polygraph test are inadmissible under the well-established Michigan rule. But I do not construe this to mean that the involved instrument is without useful application in the criminal justice field.

My reason for writing separately is that at the prearrest or preindictment level both police and prosecutors sometimes utilize the device in determining whether or not to initiate criminal proceedings. In other instances suspects ask to take the test in support of their claims of innocence. I feel that this instruction is almost a complete judicial repudiation of the instrument for any purpose. I am not prepared to go that far. See People v Davis, 343 Mich 348, 371; 72 NW2d 269, 282 (1955), wherein the Michigan Supreme Court recognized the "proven value” of the polygraph with respect to the fields of criminal investigation and interrogation. That decision was made almost 20 years ago. During the intervening years both the use of and the reliability of the so-called lie detector have gained measurable stature.

For the reasons stated I would hold a criminal defendant has no entitlement to blanket instruction that the jury should disregard references to polygraph tests because of their unreliability.