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McMorris v. Israel

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT


May 7, 1981

DARREL MCMORRIS, PETITIONER-APPELLANT,
v.
THOMAS ISRAEL AND BRONSON C. LAFOLLETTE, RESPONDENTS-APPELLEES.

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 79-C-325 Robert W. Warren, Judge.

Before Hon. THOMAS E. FAIRCHILD, Chief Judge Hon. LUTHER M. SWYGERT, Circuit Judge Hon. WALTER J. CUMMINGS, Circuit Judge Hon. WILBUR F. PELL, JR., Circuit Judge Hon. ROBERT A. SPRECHER, Circuit Judge Hon. WILLIAM J. BAUER, Circuit Judge Hon. HARLINGTON WOOD, JR., Circuit Judge Hon. RICHARD D. CUDAHY, Circuit Judge

Order

This case is before the court on a petition for rehearing and suggestion for rehearing en banc filed by the Respondents-Appellees.

The original opinion issued by this court on March 9, 1981, is modified by inserting, between "See" and "Lhost" in line 2 of note 19, the following:

State v. Craft, 99 Wis. 2d 128, 134, 298 N.W. 2d 530, 532 (1980);

The opinion is further modified by adding, after "jury." in line 7 of note 19, the following:

While Wisconsin is justifiably reluctant to admit the results of unstipulated polygraph examinations, see supra at 9-11, it adopted in Stanislawski a much more positive approach with respect to the results of examinations conducted under conditions established pursuant to pre-test stipulations. The fundamental shift accomplished by Stanislawski is demonstrated by the fact that, before Stanislawski, even stipulated examinations were deemed incompetent. See note 16, supra. Characterizing the stipulation as a "waiver", see Craft, 99 Wis. 2d at 134, 298 N.W. 2d at 532, does not affect the thesis underlying Stanislawski that the results of stipulated polygraph examinations are competent evidence; the "waiver" consists in the agreement of the parties to forego otherwise potentially valid objections to the admission of the results of the examination such as, for example, that the examiner was not qualified. The evidence is inadmissible in the absence of the stipulation because it is not sufficiently reliable without the stipulation. Lhost, 85 Wis. 2d at 645, 271 N.W. 2d at 133. This approach does not mean that Wisconsin is a pure "consent" state (where stipulated polygraph evidence, even if admitted, would not be regarded as competent).

The opinion is further modified by inserting, between "case" and the superscript "16" in line 8 of page 12, the following:

Robinson v. State, 100 Wis. 2d 152, 162, 301 N.W. 2d 429, 434 (1981).

On consideration of the petition for rehearing and suggestion for rehearing en banc filed in the above-entitled matter by counsel for the Respondents-Appellees, a vote of the active members of the court was requested, and less than a majority of the active members of the court have voted to grant a rehearing en banc.*fn* All of the judges on the original panel have voted to deny the petition for rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for rehearing and suggestion for rehearing en banc be, and the same is hereby, DENIED.


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