Competency of evidence is only required at the fact-finding stage of DYFS litigation. Practically speaking, this means that hearsay is generally admissible, except at fact finding hearings. This rule is not limited to DYFS’s presentation of proofs and the evidence rule does not limit its applicability to the evidence offered by DYFS. Thus, defense counsel may make use of incompetent evidence throughout the case as well.
One device this author has employed with success is the use of polygraph tests in hearings throughout DYFS matters. For many allegations made by the Division, the parent will be required to defend multiple claims. The allegation may be a pattern of gross neglect or inadequate supervision. The allegation may be physical abuse in circumstances wherein the parent did have some contact with the child, though not in the manner alleged by DYFS. These cases clearly would not warrant the use of a polygraph test.
However, in cases where the allegation is a single act of abuse and/or neglect, or where the parent clearly could not have committed the act alleged due to timing, location or other circumstances, defense counsel should strongly consider having the parent submit to a polygraph test. For instance, if the allegation is that the parent used physical force on a child, causing a fracture, the parent can be asked whether or not he or she used any force on the child whatsoever. If the allegation is that the parent induced Shaken Baby Syndrome in an infant, the parent can be asked whether he or she ever shook his/her child.
If a parent “passes” the polygraph test, such evidence should be submitted to the Court with an application for return of the child, increased parenting time, unsupervised or less restrictive supervised access to the child, or any number of requests. Unfortunately, polygraph test results are not yet admissible as competent evidence, so they cannot be introduced at the fact-finding hearing. However, a parent’s passing a polygraph test certainly is relevant to the issue of whether or not he/she abused his/her child, and few pieces of evidence could arguably be more material. Thus, the test results can be considered for purposes other than fact-finding.
A limited exception to the rule barring introduction of polygraph test results exists where the Court conducts an evidentiary hearing pursuant to N.J.R.E. 104(a) – in such hearings, the Rules of Evidence do not apply, except for claims of privilege and N.J.R.E. 403 (probative value outweighed by prejudicial effect). Thus, if a 104(a) hearing is conducted in a fact-finding hearing, the test results may be used. For instance, in qualifying an expert to testify, the information upon which he or she relied in making conclusions is relevant to the issue of whether or not the professional has the expertise to be an expert in the case. Many in the mental health community have testified that they rely upon “hearsay” in making determinations. A polygraph test is no less “hearsay” than is a statement directly from the parent that he or she did not commit the act alleged. Thus, qualifying an expert may provide an opportunity to introduce polygraph test results.
There are other instances wherein polygraph test results may be admissible pursuant to the Rules of Evidence. Mental health experts may rely upon such evidence in evaluating parents, in which case otherwise inadmissible evidence may be admissible . By way of example, if the defense obtained a Risk Assessment early on in the case in support of the parent’s request for a return of the child, the evaluator’s report – or some portion thereof – may be used at fact-finding on the issue of the parent’s mental health. If the evaluator relied upon the polygraph test results in determining that the parent does not pose a risk to the child to warrant further supervision, he or she may testify about the polygraph test results if he or she posits that such test results are of a type “reasonably relied upon by experts”.
It is important that defense counsel use every opportunity of persuasion available. The longer the case drags on, the longer the parent will be without his or her child unless defense counsel is zealous in pursuing the parent’s right to parenting time with his/her child. Every motion should provide a background of the matter, including a background of the removal and its impact on the parent and child. To every application, attach the polygraph test results. Just as DYFS can rely upon incompetent evidence at all stages of the case, except fact-finding, so, too, can and should defense counsel. Polygraph test results offer an ongoing opportunity for the parent to corroborate his or her innocence even before the State’s case is presented through testimony as well as during the case. Defense counsel should be creative in utilizing opportunities to advocate by use of polygraph tests.