Opinion
02-86-017; CA A40095
Submitted from the Oregon Supreme Court November 17, 1987,
Affirmed February 24, 1988 Reconsideration denied May 6, 1988 Petition for review allowed June 7, 1988 ( 306 Or. 78)
On remand from the Oregon Supreme Court, Branton v. OSP, 304 Or. 404, 744 P.2d 1294 (1987).
Judicial Review from Corrections Division.
Stephen H. Gorham, Salem, for petitioner.
Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, Scott McAlister, Assistant Attorney General, and David Kramer, Assistant Attorney General, Salem.
WARDEN, P.J.
Affirmed.
The Supreme Court vacated our decision, 83 Or. App. 571, 732 P.2d 926 (1987), and remanded this case to us for further consideration in the light of State v. Lyon, 304 Or. 221, 744 P.2d 231 (1987). We affirm.
This is a review of a prison disciplinary proceeding. In our earlier opinion, we relied on our holding in Higley v. Edwards, 67 Or. App. 488, 492, 678 P.2d 775 (1984) that, under ORS 183.450 (1), it is error to admit polygraph evidence over the objection of a party. We concluded that, because petitioner did not object but agreed to take the polygraph with the understanding that it would be used as evidence, it was admissible. In Wiggett v. OSP, 85 Or. App. 635, 738 P.2d 580, rev den 304 Or. 186 (1987), we disapproved Branton v. OSP, supra, to the extent that it suggests that polygraph evidence is inadmissible in prison disciplinary cases over the objection of a party.
In State v. Lyon, supra, the Supreme Court held that
"polygraph evidence is inadmissible for any purpose in any legal proceeding subject to the rules of evidence under the Oregon Evidence Code, and henceforth [sic] its admission, pursuant even to the parties' stipulation, is error." 304 Or at 233. (Emphasis supplied.)
The only change in the law since State v. Brown, 297 Or. 404, 687 P.2d 751 (1984), which we cited in our former opinion, is emphasized in the above quote. Brown had left open the question whether polygraph evidence was admissible on stipulation. The holdings in Lyon and Brown, however, are limited to proceedings subject to the rules of evidence under the Oregon Evidence Code. This is not such a proceeding. See ORS 421.190. Because it is not, we conclude that nothing in Lyon requires a change of our previous holding that the polygraph evidence was admissible.
Affirmed.