A defendant who was convicted for the gun crimes of Carrying a Firearm Without a License and Carrying a Loaded Firearm recently had his convictions overturned because the admission of the Ballistics Certificate, without live expert testimony, violated his Right to Confrontation under the 6th Amendment of the United States Constitution.
At his criminal jury trial in the District Court, the prosecutor sought to prove that the gun at issue was an operable firearm with evidence consisting only of the Ballistics Certificate, which is simply a police ballistician’s certification that the firearm has been examined, tested and found to be functional. The ballistician who examined the firearm was not called as a witness by the prosecutor at trial, and therefore was not available to the defendant’s criminal defense lawyer for cross-examination. The Massachusetts Supreme Court ruled that, because the ballistician was not made available to the defense for cross-examination of his findings, the defendant’s constitutional right to confront the witnesses against him was violated. Read the full Massachusetts Supreme Court’s opinion in Commonwealth v. William Rivera.
The reversal of the defendants gun convictions follows the recent ruling in Melendez-Diaz v. Massachusetts, where the U.S. Supreme Court decided that the prosecution cannot prove its case with affidavits and without the benefit of live witness testimony. The case of Melendez-Diaz involved a drug trial where the prosecutor admitted a Certificate of Drug Analysis in lieu of the chemist’s testimony that the contraband seized by the police was, in fact, cocaine.
In my Boston criminal defense practice, I have seen the implications of the Melendez-Diaz decision more prevalent in the defense of drug cases, where the prosecution had almost exclusively relied on just a chemist’s certificate to prove that the substance in question is drugs. As a result of this decision, prosecutors and judges are struggling to find a ‘solution’ to deal with the court’s ruling while also ensuring the defendant’s rights are constitutionally protected.
In some very busy courts in Massachusetts, such as the Dorchester and Roxbury Divisions of the Boston Municipal Court, it is not possible to have chemists available 24/7 to testify in every single drug case that goes to trial. To combat this and in an attempt to get around having to have a chemists’ testimony at trial, some prosecutors try to be creative and offer substitute ‘expert’ testimony by a police officer due to his training and experience with drugs.
Some judges have already permitted police officers to testify and form opinions, based on their training and experience, that a substance is marijuana. But as to other controlled substances, such as cocaine, heroin, or pills such as oxycontin, they are not so easy to identify based only on sight and smell. In those cases, a chemical analysis would be needed and the expert would have to testify at trial. Believe it or not, I have actually had prosecutors attempt to have police officer testify at trial and identify drugs from just relying on WebMD the Physicians Reference Manual.
If you have been charged with a gun or drug crime, it is critical that your criminal attorney knows and understands your legal rights and how best to fight your case. For a free consultation to discuss your case, contact Boston Criminal Attorney Lefteris K. Travayiakis via e-mail or by phone at 617-325-9500.