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at ot Ase Ae PL a“ 4 ' Sheppard v; Maxwell No. 16077 myself and we will take this lie detector test, and at Jeast you will eliminate yourself in one way?” “Q. Now, did you state to him as to where this test would be made? a “A. I said anywhere, regardless of where it might be, I would take him wherever he wanted to go. “Q. And what did he say to that? “Mr. Petersilge: Objection, your Honor. Now, the - prosecutor keeps asking about whether Dr. Sheppard was willing to take a lie test, a lie detector test, and the Court of Appeals of this county has held that the results of a lie detector test are not admissible in evidence. It follows from that that it makes no dif- ference whether Dr, Sheppard said iat he would take the test or whether he refused to take the test. “The Court: Well, he has answered the question. The Court will instruct the jury on the matter. “Mr. Petersilge: Exception. “Q. What did he say? “A. He says, ‘No,’ he says, ‘T’ll be guided by the advice of my family and my attorneys.’ “The Court: Mr. Parrino, the Court would like to say a word to the jury now. Ladies and gentlemen of the jury, you are not to understand by these questions that any person is obligated to take any lie detector test. A person has his own choice. He is under no obligation whatever to take it. All right. * + * * * “Mr. Petersilge: Just a moment. If the Court please, we request the Court also to advise the jury that he not only has an option whether he will take it or not, but that the results of that test are not admissible in evidence. “The~Court: Well, they are not here, anyway, Mr. Petersilge. “Mr. Mahon: We haven’t any results here. “The Court: They are not here. “Mr. Mahon: We are not offering any results, (Peat | Ree CARRE ss rp) Alig i Beg Tt oer tl { ‘ “" ‘aapaan ee siefhes t . - afl No. 16077 “Mr. Petersilge: That’s right, but the reason should also be stated to the jury. “ : I know, but we need not go beyond what we ba evidence. The evidence is here that he was asked to take it, he refused. Now, the Court tells the jury that he doesn’t have to take it, period. We will stop right there. - “Q. Was there any further conversation there on the 12th? : “A, I said, ‘Will you give me an answer on that in the very near future?’ He says, ‘T’ll act only upon the advice of my family and my attorneys. . Sheppard v. Maxwell 37 The statement, Exhibit 48, was Sheppard’s voluntary exculpatory statement and his answers to the officer’s sug- gestion of a lie detector test were given voluntarily in the presence of his attorneys. Despite the above objection, Dr. Sheppard when testifying in his own behalf on direct examination by his counsel, told about the first request that he submit to a lie detector test and stated that he . told the officers he would be willing to submit to such exam- ination “if it was a reliable test.” The subject was alluded to by the prosecution and the defense in the closing argu- ments, again without objection. oo ; Neither the District Judge nor counsel point to any deci- sions ruling unconstitutional the admission of. testimony that a criminal defendant has refused to submit to a lie detector test. Authority for any such ruling must, we believe, be found in radiations from the Hifth jtmendment, newly made applicable to state court proceedings by the deciston in Malloy v. Hogan, 378 U.S. 1 (1964). Cf. United States ex rel. Shott v. Tehan, 387 F (2) 990 (CA 6, 1964) ; Schiers v. California, 333 F(2) 178, 176-77 ( CA 9, 1964) ; Helton v. United States, 221 F(2) 888, 841 (CA 5, 1955) ; Mezzatesta v. Anderson, 227 F. Supp. 267, 271 (D. Del. 1964). For this reason, we believe it appropriate to note also that defense counsel questioned Dr. Sheppard on his failure to invoke the privilege against self-incrimination at the coroner’s inquest, and mentioned this failure in both opening and closing arguments to the jury. The conduct of defense counsel regarding lie detector testimony has been discussed at length because we believe it spares us the need of determining the precise constitu-