This is an Overview of Various Issues Concerning Clients Accused of Domestic Violence
Polygraph Issues: Admissible in Domestic Violence Cases?
Unlike in criminal cases, where strict evidentiary rules, girded by constitutional constraints, are required, “in all civil proceedings under G.L. c. 209A (abuse prevention) and G.L. c. 258E (harassment prevention), the rules of evidence should be applied flexibly…” See Mass. Guide to Evidence, §1106 (2017). In the c. 209A context, “the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on.” F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 602 (2015) (quoting Frizado v. Frizado, 420 Mass. 592, 597098 (1995)). See also, Guidelines for Judicial Practice: Abuse Prevention Proceedings, § 5:03 (2011) (“The common law rules of evidence…should be applied with flexibility, subject to considerations of fundamental fairness”).
The Supreme Judicial Court (Stewart, 422 Mass. at 389) has outlined the approach through which polygraph test results could be admissible:
“[i]f polygraphic evidence is to be admissible in a given case, it seems likely that its reliability will be established by proof in a given case that a qualified tester who conducted the test had in similar circumstances demonstrated, in a statistically valid number of independently verified and controlled tests, the high level of accuracy of the conclusions that the tester reached in those tests.”
Stewart’s potential path for admitting polygraph test results was revisited in Duguay, 430 Mass. at 492 (1999). In that case, however, the SJC held that polygraph evidence had been properly excluded because (1) there was no independent verification of the results; and (2) the trial judge found that the particular process utilized in that case lacked reliability.
Marital Privilege, Spousal Disqualification, and Privilege Against Self-Incrimination are Discussed
Spousal Disqualification - G.L. c. 233, § 20 (Para First)
In any proceeding, civil or criminal, a witness shall not testify as to private conversations with a spouse occurring during their marriage. “First…neither husband nor wife shall testify as to private conversations with the other.”
(A) a contract proceeding between spouses
(B) paternity matters or action to modify/enforce support order
(C) a prosecution for nonsupport, desertion, or parental neglect
(D) child abuse proceedings, including incest
(E) any criminal proceeding in which a spouse has been charged with a crime against the other spouse
(F) a violation of a vacate, restraining, or no-contact order or judgment
(G) a declaration of a deceased spouse made (i) in good faith and (ii) upon the personal knowledge of the declarant; or
(H) a criminal proceeding in which the private conversation shows bias or motive on the part of a spouse testifying against other spouse.
Marital Privilege - G.L. c. 233, § 20 (Para Second)
- Only Applies to Married Couples
- Cannot Compel one Spouse to Testify against other Spouse at:
(1) Trial of Indictment (Superior Court)
(2) Trial of Complaint (District Court); or
(3) “Other Criminal Proceeding”
- G.L. c. 273, § 7 (Evidence of Marriage or Paternity)
- Any Proceeding Relating to Child Abuse, including Incest
“Second, except as otherwise provided in section seven of chapter two hundred and seventy–three and except in any proceeding relating to child abuse, including incest, neither husband nor wife shall be compelled to testify in the trial of an indictment, complaint or other criminal proceeding against the other…”
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