polygraph test in Massachusetts

1989The waiver procedure established in Commonwealth v. A Juvenile, 365 Mass. 421 (1974), and elaborated on in Commonwealth v. Vitello, supra, serves essentially the same function as a stipulation: it ensures that a defendant is aware of the risks of agreeing to submit to a polygraph test, and allows the admission of polygraph evidence only on consent of the defendant.

1989The waiver procedure established in Commonwealth v. A Juvenile, 365 Mass. 421 (1974), and elaborated on in Commonwealth v. Vitello, supra , serves essentially the same function as a stipulation: it ensures that a defendant is aware of the risks of agreeing to submit to a polygraph test, and allows the admission of polygraph evidence only on consent of the defendant.

2012But see Commonwealth v. Allen, 377 Mass. 674, 677 (1979), applying our holding in Commonwealth v. Vitello, 376 Mass. 426, 451-457 (1978), and granting a new trial where the unfavorable result of a polygraph test taken by the defendant was admitted by the Commonwealth as evidence of the defendant’s guilt.

2000In sum, introduction of such evidence poses substantial risk of causing the trial to descend into a time-consuming and very expensive “battle of experts on the probative value of the polygraph test rather than a determination of the guilt or innocence of a defendant.” Commonwealth v. Vitello, 376 Mass. 426, 442 (1978), quoting Commonwealth v. Fatalo, 346 Mass. 266, 269 (1963).

1979See Commonwealth v. Stewart, 375 Mass. 380, 383-385 (1978); Commonwealth v. Chase, 372 Mass. 736, 751-752 (1977); Commonwealth v. Patterson, supra. Decisions in other jurisdictions disclose differences of opinion similar to the differences over the use of a defendant’s polygraph test.

1978NOTES [1] But cf. Commonwealth v. Stewart, 375 Mass. 380, 383-385 (1978) (person cannot be compelled to take polygraph examination); Commonwealth v. Howard, 367 Mass. 569 (1975) (in jury waived trial, appearance of fair trial compromised by willingness of judge to substitute results of polygraph test for his own judgment based on all the evidence); Commonwealth v. Chase, 372 Mass. 736, 751-752 (1977); Commonwealth v. Graziano, 371 Mass. 596 (1976); Commonwealth v. A Juvenile (No. 1), 370 Mass. 450 (1976); Commonwealth v. Patterson, 4 Mass. App. Ct. 70, 76-78 (1976). [2] In A Juvenile , we requ

1979See Commonwealth v. Stewart, 375 Mass. 380, 383-385 (1978); Commonwealth v. Chase, 372 Mass. 736, 751-752 (1977); Commonwealth v. Patterson, supra. Decisions in other jurisdictions disclose differences of opinion similar to the differences over the use of a defendant’s polygraph test.

1978NOTES [1] But cf. Commonwealth v. Stewart, 375 Mass. 380, 383-385 (1978) (person cannot be compelled to take polygraph examination); Commonwealth v. Howard, 367 Mass. 569 (1975) (in jury waived trial, appearance of fair trial compromised by willingness of judge to substitute results of polygraph test for his own judgment based on all the evidence); Commonwealth v. Chase, 372 Mass. 736, 751-752 (1977); Commonwealth v. Graziano, 371 Mass. 596 (1976); Commonwealth v. A Juvenile (No. 1), 370 Mass. 450 (1976); Commonwealth v. Patterson, 4 Mass. App. Ct. 70, 76-78 (1976). [2] In A Juvenile , we requ

2000In sum, introduction of such evidence poses substantial risk of causing the trial to descend into a time-consuming and very expensive “battle of experts on the probative value of the polygraph test rather than a determination of the guilt or innocence of a defendant.” Commonwealth v. Vitello, 376 Mass. 426, 442 (1978), quoting Commonwealth v. Fatalo, 346 Mass. 266, 269 (1963).

1993Furthermore, we reject the defendant’s contention that the opinion testimony was inadmissible because it was “based on no cognizable scientific principle or theory” within the import of Commonwealth v. Fatalo, supra, and Frye v. United States, supra. Those cases focused on the admissibility of scientific testing methods, such as the polygraph test, see Commonwealth v. Mendes, 406 Mass. 201 (1989), and human leukocyte antigen (HLA) testing in paternity cases, see Commonwealth v. Beausoleil, 397 Mass. 206, 215 (1986).

2008See Bellin v. Kelley, 435 Mass. 261, 271 (2001) (“To whatever extent [if any] the statute imposes a requirement that the crime being investigated have some connection to the employee’s job . . .”); Baker v. Lawrence, 379 Mass. 322 , 327 & n.8 (1979) (“The situation plainly within the exception is one where the law enforcement agency is conducting an investigation into a crime alleged to have been committed by a person in connection with the duties of his employment, and the agency is permitted, i.e., not forbidden, to administer a polygraph test to that employee”).

2001Our explication of the exception in § 19B (2) does not support any such distinction: “The situation plainly within the exception is one where a law enforcement agency is conducting an investigation into a crime alleged to have been committed by a person in connection with the duties of his employment, and the agency is. permitted, i.e., not forbidden, to administer a polygraph test to that employee.” Baker v. Lawrence, supra at 327 .

1980The judge orally stated that he was not “making [the] ruling contingent on the resultfs] of the lie detector test.” The motion was denied on the same day and bore the judge’s written observation that he did not believe Colon’s testimony, together with the additional statement that “the Court . . . does not set out any obligation for the witness to take a polygraph test; however, if further evidence along that line is introduced . . . such evidence may be considered on motion to reconsider the denial of this motion.” The defendant, relying on the circumstances that prevailed in Commonwealth v.

1978NOTES [1] But cf. Commonwealth v. Stewart, 375 Mass. 380, 383-385 (1978) (person cannot be compelled to take polygraph examination); Commonwealth v. Howard, 367 Mass. 569 (1975) (in jury waived trial, appearance of fair trial compromised by willingness of judge to substitute results of polygraph test for his own judgment based on all the evidence); Commonwealth v. Chase, 372 Mass. 736, 751-752 (1977); Commonwealth v. Graziano, 371 Mass. 596 (1976); Commonwealth v. A Juvenile (No. 1), 370 Mass. 450 (1976); Commonwealth v. Patterson, 4 Mass. App. Ct. 70, 76-78 (1976). [2] In A Juvenile , we requ

2025Cf. Commonwealth v. Graziano, 371 Mass. 596, 599-600 (1976) (premature to decide four questions involving polygraph testing where "on remand the trial judge may decline to permit the polygraph test or, if such a test is given, may subsequently exclude its results from use at the trial").

1978NOTES [1] But cf. Commonwealth v. Stewart, 375 Mass. 380, 383-385 (1978) (person cannot be compelled to take polygraph examination); Commonwealth v. Howard, 367 Mass. 569 (1975) (in jury waived trial, appearance of fair trial compromised by willingness of judge to substitute results of polygraph test for his own judgment based on all the evidence); Commonwealth v. Chase, 372 Mass. 736, 751-752 (1977); Commonwealth v. Graziano, 371 Mass. 596 (1976); Commonwealth v. A Juvenile (No. 1), 370 Mass. 450 (1976); Commonwealth v. Patterson, 4 Mass. App. Ct. 70, 76-78 (1976). [2] In A Juvenile , we requ

1996In Commonwealth v. Mendes, 406 Mass. 201, 212 (1989), this court held that polygraphic evidence was inadmissible for any purpose in criminal trials in the Commonwealth.

1993Furthermore, we reject the defendant’s contention that the opinion testimony was inadmissible because it was “based on no cognizable scientific principle or theory” within the import of Commonwealth v. Fatalo, supra, and Frye v. United States, supra. Those cases focused on the admissibility of scientific testing methods, such as the polygraph test, see Commonwealth v. Mendes, 406 Mass. 201 (1989), and human leukocyte antigen (HLA) testing in paternity cases, see Commonwealth v. Beausoleil, 397 Mass. 206, 215 (1986).

1982We said that, in that situation, “we think it the part of wisdom to reserve again the question whether evidence of a polygraph test is ever admissible to impeach a prosecution witness.” Id. 1 *397 The issue cannot reasonably be avoided in this case.

1981In view of the barrenness of the present record, we also think it “the part of wisdom to reserve again the question whether evidence of a polygraph test is ever admissible to impeach a prosecution witness.” Commonwealth v. Moore, 379 Mass. 106, 114 (1979). 4.

1979See Commonwealth v. Stewart, 375 Mass. 380, 383-385 (1978); Commonwealth v. Chase, 372 Mass. 736, 751-752 (1977); Commonwealth v. Patterson, supra. Decisions in other jurisdictions disclose differences of opinion similar to the differences over the use of a defendant’s polygraph test.

1978NOTES [1] But cf. Commonwealth v. Stewart, 375 Mass. 380, 383-385 (1978) (person cannot be compelled to take polygraph examination); Commonwealth v. Howard, 367 Mass. 569 (1975) (in jury waived trial, appearance of fair trial compromised by willingness of judge to substitute results of polygraph test for his own judgment based on all the evidence); Commonwealth v. Chase, 372 Mass. 736, 751-752 (1977); Commonwealth v. Graziano, 371 Mass. 596 (1976); Commonwealth v. A Juvenile (No. 1), 370 Mass. 450 (1976); Commonwealth v. Patterson, 4 Mass. App. Ct. 70, 76-78 (1976). [2] In A Juvenile , we requ

2015“A motion for a new trial is addressed to the sound discretion of the judge, and the judge’s disposition of the motion will not be reversed unless it is manifestly unjust, or unless the trial was infected with prejudicial constitutional error.” Commonwealth v. Moore, 408 Mass. 117, 125 (1990) (citations omitted).

2015See Commonwealth v. Williams, 450 Mass. 645, 651 (2008) (“Jurors are presumed to follow a judge’s instructions, including instructions to disregard certain testimony”). 4.

2015See note 4, supra. Second, while “polygraph evidence is inadmissible for any purpose in a criminal trial,” Commonwealth v. Martinez, 437 Mass. 84, 88 (2002), an isolated reference to a polygraph test does not, per se, constitute reversible error, nor warrant a mistrial.

2015See Commonwealth v. Corcione, 364 Mass. 611, 620 (1974).

2008See Bellin v. Kelley, 435 Mass. 261, 271 (2001) (“To whatever extent [if any] the statute imposes a requirement that the crime being investigated have some connection to the employee’s job . . .”); Baker v. Lawrence, 379 Mass. 322 , 327 & n.8 (1979) (“The situation plainly within the exception is one where the law enforcement agency is conducting an investigation into a crime alleged to have been committed by a person in connection with the duties of his employment, and the agency is permitted, i.e., not forbidden, to administer a polygraph test to that employee”).

2007Such immunity must sufficiently protect the officer’s constitutional rights against self-incrimination under the Massachusetts Declaration of Rights and the Fifth Amendment to the United States Constitution, such that the individual “must be assured that the purported immunity (a) is effective Statewide and (b) protects against use of any statements in the prosecution of any Federal crime.” Baglioni v. Chief of Police of Salem, 421 Mass. 229, 233-234 (1995) (footnotes omitted).

2007L. c. 149, § 19B(2). 11 See Baker v. Lawrence, 379 Mass. 322, 331 (1979) (adequate immunity must be assured with respect to police officer’s responses); Baglioni v. Chief of Police of Salem, 421 Mass. 229, 230 (1995) (before police officer “may be compelled to make any statement he must be granted State transactional immunity as to any such statements”).

2000Compare Commonwealth v. Am ral, 407 Mass. 511, 519 (1990); Commonwealth v. Singer, 29 Mass. App. Ct. 708, 711 (1991).

2000Compare Commonwealth v. Am ral, 407 Mass. 511, 519 (1990); Commonwealth v. Singer, 29 Mass. App. Ct. 708, 711 (1991).

1993Furthermore, we reject the defendant’s contention that the opinion testimony was inadmissible because it was “based on no cognizable scientific principle or theory” within the import of Commonwealth v. Fatalo, supra, and Frye v. United States, supra. Those cases focused on the admissibility of scientific testing methods, such as the polygraph test, see Commonwealth v. Mendes, 406 Mass. 201 (1989), and human leukocyte antigen (HLA) testing in paternity cases, see Commonwealth v. Beausoleil, 397 Mass. 206, 215 (1986).

1989See State v. Grier, 307 N.C. 628 (1983); Fulton v. State, 541 P.2d 871 (Okla.

1989See State v. Grier, 307 N.C. 628 (1983); Fulton *210 v. State, 541 P.2d 871 (Okla.

1982We conclude that, in the circumstances of this case, the Commonwealth has met its burden of proving that the defendant “knowingly and intelligently waived his privilege against self-incrimination.” Miranda, supra. 4.