
    Charles Seaton DAVIS, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-1530, 84-242.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1986.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
    Paul H. Zacks, Asst. State Atty., Fort Lauderdale; Joel Rosenblatt, Asst. State Atty., Miami, and Arthur I. Jacobs, of Jacobs & Mullin, Fernandina Beach, for ami-cus curiae-Florida Pros. Atty’s. Ass’n.
    James K. Green, of Green, Eisenberg and Cohen, West Palm Beach, for amicus curiae-Florida Public Defenders’ Ass’n.
   OPINION ON REHEARING EN BANC

DOWNEY, Judge.

The state has moved to rehear this case en banc contending that our decision filed December 12,1984, is in direct conflict with this court’s decision in Taylor v. State, 350 So.2d 13 (Fla. 4th DCA 1977), and also with the case of Carron v. State, 414 So.2d 288 (Fla. 2d DCA 1982), aff'd, 427 So.2d 192 (Fla.1983).

Capsulated, the facts are that appellant, Davis, the manager of a restaurant, was charged with failing on numerous occasions to deposit the restaurant’s daily receipts into the owner’s bank account. The parties orally agreed that Davis should submit to a polygraph examination, the results of which would be admissible in evidence. Davis failed the test. The polygraph operator testified as an expert at trial that Davis had attempted deception as to certain key questions. Davis objected to the operator’s testimony regarding the workings of the polygraph on the grounds that the parties had stipulated to the admissibility of the results only. The objection was overruled and the operator was allowed to describe to the jury the function, purpose and operation of the machine and the procedure used in polygraph examinations.

Davis requested an instruction on the reliability of polygraph results, which the court denied. Instead, the court gave the standard jury instruction on expert witnesses. Defense counsel argued at length during closing argument regarding the unreliability of polygraph results. Nevertheless, the jury convicted Davis and he has perfected this appeal, contending, among other things, that the trial court erred in denying his requested jury instruction on polygraph evidence.

In our prior opinion we held that it was not error to refuse Davis’ requested instruction because it was argumentative, misleading, and far too negative. However, the majority of the panel felt that, since Davis had specially requested an instruction on the weight to be given to such evidence and, since the subject was of such singular importance in a case of this nature, the court should have given a proper instruction on the subject. It was felt that the standard instruction on expert witnesses was insufficient to cover the subject. Thus, the judgment and sentence were reversed with one judge dissenting. The thrust of the dissent is that, having stipulated to the admissibility of the polygraph results, the parties waived any objection to the scientific reliability thereof. We understand the word “objection,” used in this context, to mean the parties waived any evidentiary objection concerning the reliability of the results. The dissent relied upon Delap v. State, 440 So.2d 1242 (Fla.1983), and Howard v. State, 458 So.2d 407 (Fla. 4th DCA 1984). On rehearing, however, the state does not endorse the argument set forth in the dissent to our prior opinion in Davis, but restricts its argument for rehearing to the contention that requiring the trial court to give a proper instruction where appellant’s requested instruction is not adequate or proper conflicts with Taylor and Carrón.

In Howard, this court cited the opinion of the Florida Supreme Court in Delap, for the statement that, by stipulating to the use of a polygraph examination, the defendant waives the underlying objection to reliability, thus mooting reliability as an issue. Howard, 458 So.2d at 408. We believe that statement is overly broad and that it would be more accurate to say that the stipulation waives any evidentiary objection based upon scientific unreliability which would preclude admissibility but it does not preclude counsel from adducing evidence of scientific unreliability and commenting thereon during argument. The pertinent statement in Delap is:

The use of a polygraph examination as evidence is premised on the waiver by both parties of evidentiary objections as to lack of scientific reliability. The evidence fails to show that the polygraph examination has gained such reliability and scientific recognition in Florida as to warrant its admissibility. The Florida rule of inadmissibility reflects state judgment that polygraph evidence is too unreliable or too capable of misinterpretation to be admitted at trial. However, the court does recognize that the parties may waive their evidentiary objection. [Emphasis supplied.]

440 So.2d at 1247.

It should be noted that the above language of the supreme court refers to waiving evidentiary objections based upon reliability; i.e., a party’s right to preclude admission of such evidence for consideration by the jury, not a party’s right to comment on the weight to be given such admitted evidence. Accordingly, to the extent that Howard suggests that a stipulation to the admissibility of a polygraph examination precludes any further comment at trial on its reliability, we recede therefrom.

Regarding the effect of stipulating to the admissibility of polygraph examinations and other evidence relative to their function, purpose and reliability, we suggest the controversy can be minimized by the preparation of a studied, carefully drawn, written stipulation, so that there will be no doubt as to the agreement of the participants therein. We cautioned the bar along these lines in Howard v. State, 458 So.2d 407 (Fla. 4th DCA 1984). We would now add that, if appropriate, the stipulation might also include the specific instruction that the parties expect the trial judge to give, which would obviate the appellate issue involved here.

The stipulation here was oral and the parties do not agree as to its extent. Davis contended at trial he had simply agreed the results would be admissible without more, while the prosecutor stated he intended the parties would also be able to explore the “entire theory of polygraph.” In closing argument, both sides discussed the polygraph results and the operator’s testimony regarding the manner of producing those results. Counsel for Davis, of course, argued at length about the unreliability of the procedure.

In State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962), and State v. Griggs, 33 Wash.App. 496, 656 P.2d 529 (1982), the parties stipulated to the admissibility of polygraph results in states where such evidence was not ordinarily admissible. The Valdez court held that, when stipulated to, such evidence is admissible to corroborate other evidence of defendant’s participation in the crime charged and it may also be used to corroborate or impeach the defendant’s testimony if he takes the witness stand. The court specifically noted, however, if such evidence is admitted, the trial court should instruct the jury that the examiner’s testimony does not tend to prove or disprove any element of the crime charged, but at most tends only to indicate that at the time of the examination the defendant was not telling the truth. Furthermore, the jury should also be instructed that the weight and effect of such evidence is for the jury to determine. This same rule was followed in the Griggs decision.

Polygraph results are inadmissible in Florida because of their inherent unreliability; or put another way, because their reliability has not been scientifically demonstrated to a degree of certainty with which the courts are comfortable. Therefore, we believe that, when admitted by stipulation of the parties, the jury should be apprised of the strengths and weaknesses of such evidence, what the results are calculated to determine, and that it is for them to determine what weight and effect should be attributed to such evidence. There are other situations in which the jury is cautioned about the weight to be given to suspect or questionable evidence, such as circumstantial evidence, confessions, and testimony of expert witnesses. In view of the “mythical aura” attributed to polygraph examinations, we believe an instruction should be given on the subject if a proper instruction is requested by either party. We would analogize this case to Carron v. State, 414 So.2d 288 (Fla. 2d DCA 1982), aff'd, 427 So.2d 192 (Fla.1983), wherein the Second District held for the first time that, in an instruction on kidnapping with intent to commit or facilitate the commission of a felony, it is not sufficient to simply read the statute to the jury. The court should go further and give an instruction containing the essential ingredients of the crime which case law has imposed. However, because the defendant’s requested instruction on the subject was not legally correct, that court refused to hold the trial court committed reversible error. The district court stated:

We are reluctant to endorse a principle that where a party requests a legally erroneous instruction on subject matter which the appellate courts have not previously suggested as appropriate for a jury instruction, the court must not only perceive the need for the instruction but also straighten it out so as to present a correct legal principle.

414 So.2d at 291.

The Supreme Court of Florida affirmed the decision requiring the trial court to instruct on the essential ingredients of the crime. Furthermore, the court added:

We agree that, should such an instruction be requested by the defendant, it should be given. Absent a timely request for a proper instruction, its omission is not reversible error. In this case, the requested instruction was improper, and there was no error in refusing it.

427 So.2d at 194.

In our earlier opinion in this case we held that, even though the requested instruction was not acceptable because it was too argumentative, negative, and misleading as presented by appellant, it was error not to give a proper instruction. On petition for rehearing, the state calls our attention to the apparent conflict between our decision to reverse even though a proper instruction was not requested and the decisions in Taylor and Carrón. We are unable to distinguish Taylor, and acknowledge the controlling features in the supreme court’s decision in Carrón.

In the Carrón district court decision, we find an appellate court holding for the first time that a certain instruction should be given but the instruction presented by counsel was not adequate and, thus, the trial court should not be found in error for refusing to give it or for failing to prepare a proper charge on this subject. Our situation here is identical. We are holding for the first time that, when polygraph evidence is admitted, the jury should be instructed on the subject. However, the instruction requested was not proper and thus, following precedent, the trial court should not be found to have committed reversible error in refusing to give such an instruction.

In summation, we conclude that, when polygraph evidence is admitted by stipulation, and a party requests a proper instruction on the subject, it should be given. If an improper instruction is requested, the trial court is not required to fashion one. Carron v. State, 414 So.2d 288 (Fla. 2d DCA 1982), aff'd, 427 So.2d 192 (Fla.1983).

Accordingly, our opinion filed December 12, 1984, is vacated and the judgment appealed from is affirmed.

Concluding that this case involves a matter of great public importance, we certify the following question to the Supreme Court of Florida:

WHEN POLYGRAPH EVIDENCE IS ADMITTED BY STIPULATION, AND A PARTY REQUESTS A PROPER INSTRUCTION ON THE SCIENTIFIC UNRELIABILITY OF POLYGRAPH RESULTS, IS IT REVERSIBLE ERROR FOR THE TRIAL COURT TO FAIL TO SO INSTRUCT THE JURY?

HERSEY, C.J., and ANSTEAD, DELL, WALDEN and GUNTHER, JJ„ concur.

STONE, J., concurs specially with opinion.

GLICKSTEIN, J., dissents with opinion.

LETTS, J., dissents without opinion.

STONE, Judge,

concurring specially.

I concur in the majority opinion, but am concerned that the trial judge in fashioning a jury instruction on this subject should avoid unnecessary comments on the evidence. Millett v. State, 460 So.2d 489 (Fla. 1st DCA 1984); § 90.106, Fla.Stat. (1985).

For the court to apprise the jury of the subjective “strengths and weaknesses” of polygraph evidence and “what the results are calculated to determine,” as suggested, may constitute such a comment.

Considering that evidence of this nature will only be admitted by stipulation, the charge to the jury should be limited, in the absence of agreement, to a general statement that it is for the jury to determine its weight and effect.

GLICKSTEIN, Judge,

dissenting.

We are receding from Howard v. State, 458 So.2d 407 (Fla. 4th DCA 1984), which interpreted Delap v. State, 440 So.2d 1242 (Fla.1983), saying:

We find no other error in the trial court, but mention the stipulation for the use of the polygraph examination for two reasons. First, we remind counsel that by stipulating to its use, the defendant waives the underlying objection to reliability, thus mooting reliability as an issue. See DeLap v. State, 440 So.2d 1242, 1247 (Fla.1983).

Id. at 408.

DeLap, which Howard interpreted, reiterated that parties may stipulate to the admissibility of the results of a polygraph test, citing Anderson v. State, 241 So.2d 390 (Fla.1970), vacated, 408 U.S. 938, 92 S.Ct. 2868, 33 L.Ed.2d 758 (1972); State v. Brown, 177 So.2d 532 (Fla. 2d DCA 1965). It repeated that each of the parties may waive his evidentiary objection to such test result.

The majority swims upstream and downstream at the same time, in my view. A trial lawyer, defending someone who had failed a polygraph test, would rise to object to the admissibility of the test result, absent a stipulation, on the ground that the evidence is incompetent, therefore inadmissible. Its incompetence is occasioned by its unreliability.

Because of the majority’s opinion, once a defendant has now waived his objection to the inadmissibility of the polygraph test, because of its unreliability, he can still argue to the jury and get an instruction from the trial judge similar to that given in Valdez or Griggs, both cited by the majority. The majority mixes the question of competent evidence with that of weight to be given to the evidence.

I could join in a decision by the majority that said to the parties that they could stipulate to:

A. Admissibility of the test result and total exclusion of the issue of reliability, or

B. Admissibility of the test result with the understanding that the parties would be entitled to introduce evidence upon the issue of reliability; and that the defense would be entitled to the following instruction set forth in Griggs:

By agreement of the parties, the court has admitted the testimony of the polygraph examination of the defendant. You are instructed that the polygraph examiner’s testimony does not tend to prove or disprove any elements of the crime with which the defendant has been charged, but at most tends only to indicate whether or not at the time of the examination the defendant was telling the truth. It is for you, the jury, to determine the corroborative weight and effect such testimony should be given.

656 P.2d at 531.

At my request, the court sought and obtained from the state prosecutors and public defenders amicus curiae briefs upon the following issues so that this court’s ultimate decision would not be made without their input:

(1) Given only a verbal stipulation between the parties which recites nothing more than that upon the defendant’s failure of the polygraph examination, the results of same will be introduced into evidence, or upon his passing, the charge will be dropped, is the issue of reliability waived by the defendant or only the defendant’s objection to the admissibility of the results? In discussing this issue, specifically discuss whether the question of reliability is one of the competency of the evidence or the weight of the evidence.
(2) If the issue of reliability is not waived, and the state must come forward with evidence upon that issue, should an instruction be given along the lines of those given in State v. Valdez [91 Ariz. 274], 371 P.2d 894 (Ariz.1962) and State v. Griggs [33 Wash.App. 496], 656 P.2d 529 (Wash.App.1982).

The prosecutors’ brief points out that it is the unreliability of polygraph test evidence which precludes its admissibility, citing Farmer v. City of Fort Lauderdale, 427 So.2d 187, 190 (Fla.1983); that the issue of reliability is excluded from the trial if there is a stipulation to admissibility, citing State v. McNamara, 252 Iowa 19, 104 N.W.2d 568 (1960); and that to hold as the majority now holds is to permit the defendant to have his cake and eat it, too, by failing the test and producing expert evidence of its unreliability.

The public defenders’ brief argues that reliability is either an issue separate from admissibility or a mixed question of admissibility and weight of the evidence. The brief then says:

Some courts take the position that the issues of admissibility and reliability are distinct, and admit stipulated polygraph results under a waiver or estoppel theory:
The courts, therefore, enforce stipulations and admit the tests in these cases not because the evidence is considered reliable under the Frye standard, but rather because under a waiver or es-toppel theory all parties have consented to the admission of the test results. Comment, The Truth About the Lie Detector in Federal Courts, 51 Temple L.Q. 69, 90 (1978).
See also, Herman v. Eagle Insurance Co., 396 F.2d 427 (9th Cir.1963 [1968])
(Admissibility of polygraph results on stipulation did not have any implication as to reliability.)
Other courts, including the Arizona Supreme Court in State v. Valdez [91 Ariz. 274], 371 P.2d 894 (Ariz.1962) and the Court of Appeals of Washington in State v. Griggs [33 Wash.App. 496], 656 P.2d 529 (Wash.App.1982), admit stipulated polygraph results only with substantial procedural safeguards. Valdez can be viewed in one of two ways with respect to the admissibility/weight of evidence issue. One way is that Valdez treats reliability as a mixed question of admissibility and weight of evidence. This view is consistent with the procedural safeguards that must be provided both before and after admissibility. Under Valdez, the determination that test results are admissible does not by itself cure the problem of reliability; additional safeguards after the determination of admissibility such as cross-examination and cautionary instructions must be provided. Another way to view Valdez is that it based admissibility not on “reliability but on the stipulation and other conditions it set forth in the decision. See, Valdez, supra, 371 P.2d at 700 [900], State v. Treadway [Treadaway], 116 Ariz. 163, 568 P.2d 1061, 1067-1068 (1977); and State v. Hill, 40 Ohio App.2d 16, 317 N.E.2d 233, 238 (1963).” State v. Dean, 103 Wisc.2d 288 [228], 307 N.W.2d 678 [628], 685 (1981). Under either view of Valdez, reliability survives as an issue after a determination of the admissibility of polygraph results.
A third approach is that polygraph results are inadmissible, notwithstanding a written stipulation of admissibility. State v. Corbin, 285 So.2d 234 (La.1973); Stone v. Earp, 331 Mich. 606, 50 N.W.2d 172 (1951); Fulton v. State, 541 P.2d 871 (Okla.Crim.App.1975); Lewis v. State, 500 S.W.2d 167 (Tex.Crim.App.1973); Commonwealth v. A Juvenile, 365 Mass. 421, 313 N.E.2d 120, 123-124 (1974); Pulakis v. State, 476 P.2d 474, 479 (Alaska 1970); State v. Watson, 248 N.W.2d 398 (South Dakota 1976); Robinson v. State, 550 S.W.2d 54, 59 (Tex. Crim.App.1977); State v. Dean, supra; People v. Baynes, 88 Ill.2d 225 [58 Ill. Dec. 819], 430 N.E.2d 1070 (1981). These cases reason that if the “rationale for exclusion is the inaccuracy of the test, it does not gain accuracy by a mere stipulation of the parties.” Wigmore, Evidence, Section 7a, n. 6, p. 569.

(Footnote omitted.)

Those of us who have prosecuted and defended felonies are familiar with the customary bargain that is made between prosecutors and defense counsel. Howard tried to stop the practice of telephone or other verbal bargains that did not spell out the terms of the bargain. Such verbal bargains have been, historically, that if the defendant passes, he walks; if he fails, the result goes into evidence. Apples. There has been, in my view, little if any discourse about oranges.

The majority has gone too far by limiting the usefulness of a prosecutorial tool without fully considering all of the ramifications, including possible reduction in the number of cases concluded on guilty and nolo contendere pleas. Judicial restraint would favor a ruling which leaves it to the parties to stipulate knowingly to that which they choose.

Finally, in my view, the issues briefed by the respective associations should be the questions to be certified to this state’s highest court together with a third question consistent with the suggestion made in this dissent for a more reasonable majority decision; namely, whether the parties can stipulate to the admissibility of the result and further stipulate that the defendant shall have the opportunity to present evidence and obtain an instruction upon reliability. I think this court owes it to the criminal justice system to consider all of the possibilities of a stipulation. Had I thought of it sooner, I would have suggested this last question as one to be briefed by the prosecutors and public defenders, that if they want to put it all on the line, they can do so. We are taking that prosecutorial tool away from them; and I find neither the logic, authority or policy reason to do so. 
      
      . Farmer v. City of Ft. Lauderdale, 427 So.2d 187, 191 (Fla.1983).
     
      
      . See Carron v. State, 414 So.2d 288 (Fla. 2d DCA 1982), for said additional ingredients.
     
      
      . We added in Howard, as hopefully constructive dicta, the following:
      Second, we suggest that stipulations such as used here — namely, if an accused passes the examination, he takes a walk, and if he fails, he responds to the charges — should spell out in detail to what the parties have agreed: that the issue of reliability has been waived by its execution; and that the stipulation and result will be received into evidence if unfavorable to the accused. With such recitations, together with execution by the accused and counsel, the trial can proceed without subjecting the jury to a debate on the pro and con of polygraph examinations. More important, the written word will eliminate uncertainty in the accused's mind as to the stakes and the ramifications if he fails.
     