For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. The opinion of the court was delivered by Clifford, J.
We granted motions on behalf of the State and defendant for leave, respectively, to appeal and cross-appeal from the judgment of the Appellate Division incorporating two separate determinations. 139 N.J. Super. 389 (1976). The first ruling was to the effect that given the ambiguous nature of a stipulation*fn1 prepared by the State governing the administering of a polygraph examination to defendant and the use at trial of the results thereof, defendant can produce his own expert at trial "to testify as to his conclusions and evaluations of the polygraph data" introduced by the State. 139 N.J. Super. at 393. The second was that, again under the terms of the stipulation, the State is not limited to use of the polygraph results for impeachment purposes only but can introduce those results in direct evidence, notwithstanding defendant's refusal to testify. Id. at 394. Because significant policy considerations are involved, we invited the submission of briefs and oral argument by the Attorney General and the Public Defender as amici curiae.
We now affirm substantially for the reasons given by the Appellate Division, subject only to the following brief amplifying comments.
The State argues here, as it did below, that to permit defendant to produce at trial his own polygraph expert, one McMahon, to contradict the agreed-upon polygraphist's conclusions and to dispute his procedures amounts to an
enlargement of the stipulation's provisions. While it acknowledges that defendant may cross-examine as to the designated expert's evaluation, the State nevertheless asserts that defendant, with the assistance of counsel, has effectively waived his right to introduce his own expert's analysis.
We are in complete agreement with the Appellate Division's holding that the stipulation does not unequivocally bind defendant to the designated examiner's test results, 139 N.J. Super. at 392; that fairness requires that defendant be permitted to refute the designated examiner's evaluation, id.; and that there was insufficient evidence of a knowing and intelligent waiver by defendant of his Sixth Amendment right to call witnesses to testify in his favor, id. at 393. This is the position not only of the defendant and amicus Public Defender, but also of the amicus Attorney General. We quote from the latter's brief:
In the final analysis, the stipulation is absolutely silent on the issue of whether defendant can present Mr. McMahon's testimony. The Attorney General submits that in the absence of a clear and unequivocal provision barring extrinsic evidence on the stipulated examiner's findings, there are two compelling reasons requiring the admission of such evidence. First, the nature of scientific testimony in general, and especially of polygraphic testimony, requires the fullest possible exploration at trial of the expert's opinion. Second, defendant's fundamental right to present witnesses in his favor must be honored.
As to the first reason, the Attorney General submits that it would be "inappropriate" to bind either party to the designated polygraph examiner's evaluation because, as his brief so straightforwardly puts it, "[t]he simple fact is he may have erred in reaching his conclusion", and that "[t]o hold that his opinion on truth or deception is unchallengeable would cloak him with the 'mystic infallibility' [see, e.g., United States v. Addison, 162 U.S. App. D.C. 199, 202, 498 F.2d 741, 744 (D.C. Cir. 1974)] that has concerned the courts." We agree. The criminal justice system's basic premise that factual issues should be
resolved by the fact-finder, be it jury or judge, would be severely undermined by a rule allowing an irrefutable opinion by an expert witness on what is the ultimate issue in the case.
As to the second reason for allowing the admission of defendant's expert's evidence, namely, defendant's right to present witnesses to testify in his favor, we focus on the fundamental nature of that right as to a criminal defendant. See Washington v. Texas, 388 U.S. 14, 16, 87 S. Ct. 1920, 1921, 18 L. Ed. 2d 1019, 1021 (1967). Certainly this right should not be defeated in the absence of a clear and unequivocal waiver, which, as we have said, is not included in the present stipulation. We need not, at this point, express any opinion as to whether an unambiguous waiver of either the right to cross-examine or to submit independent proof of the type sought to be introduced here, or both, would run afoul of public policy. For purposes of the present case, on remand defendant's expert will be allowed to testify once his personal knowledge and expertise have been established. Evid. R. 19; see also Evid. R. 56. That testimony will be limited to a refutation of the designated ...