Massachusetts Court Reverses Drug Conviction, Police ‘Expert Testimony’ Still Live Issue In Drug Cases

The Massachusetts Supreme Judicial Court recently reversed the conviction of a man who had been convicted in 2004 for the crime of Trafficking Cocaine of over 28 grams. In the case of Commonwealth v. Mario M. Perez, the Supreme Judicial Court reversed the jury’s guilty finding on the grounds that the defendant’s Sixth Amendment Right to Confrontation was violated by the introduction of the Certificate of Drug Analysis without the chemist’s testimony.

The defendant’s reversal for the crime of Trafficking follows the United States Supreme Court’s decision in Crawford v. Washington, which essentially ruled that the Drug Certificates were testimonial evidence. At the time of this appeal, the United States Supreme Court had granted certiorari but not yet decided United States v. Melendez-Diaz, which now prevents the prosecutor from proving its case by way of ex-parte court affidavits and without the proponent being subject to cross-examination.

This case is particularly interesting because the District Attorney’s Office attempted to convince the Massachusetts Supreme Court to adopt a broader rule of law that would allow them to bypass having to call a drug chemist at trial. Massachusetts prosecutors are trying hard to convince the Court to allow them to prove what a particular substance is through the use of ‘police expert’ testimony only. In this way, the prosecutors could attempt to prove the controlled substance at trial through their usual police witnesses and without having to bring in the chemist who tested the drugs.

In Commonwealth v. Perez, the Suffolk District Attorney’s Office argued that a police officer who had experience with a particular drug, packaging, street-selling prices, and based on his experience, could then offer the required proof that a substance is a particular drug without having the chemist testify.

The Massachusetts Supreme Court said, no, but nice try…

In my criminal practice, I have seen many prosecutors struggle with how to prove that a drug is a particular substance. Many judges were also already openly allowing police officers to do just that at criminal trials…testify before a jury that the substance they seized from the defendant was cocaine…or heroin…or oxycontin…

Well, how and why are police officers allowed to offer that testimony? …because of those wonderful words that prosecutors and judges love to rely on…”based on their training and experience…” Give me a break…

So, am I correct to understand that just because a police officer has 10, 20 or 30 years experience in drug busts, and without ever field-testing the substance, he can positively identify the chemical composition of cocaine? What about pills? Oh, and what about the percentage of purity within that chemical composition?

On the particular testimony on this case, the Massachusetts Supreme Court did rule that an officer’s ‘training and experience’ with drugs was not sufficient to prove that a substance was a particular drug. From my reading of the decision, however, the Court did suggest that, where officers also performed field-tests and relied on some other objective testing or criteria, they might have considered the evidence sufficient testimony without the admission of a Drug Certificate.

It’s going to be very interesting to see how the Massachusetts Supreme Court rules on these line of cases in the future. In the meantime, criminal defense lawyers will continue to challenge any witness testimony on the identification of a controlled substance if the chemical analyst does not testify at trial.

If you have been charged possession, distribution, trafficking or any other drug crime, you need an experienced and aggressive criminal defense lawyer to represent you. Boston Drug Lawyer Lefteris K. Travayiakis offers a Free Consultation and is available 24/7 by e-mail or by phone at 617-325-9500.

Read the Massachusetts Supreme Court’s decision in Commonwealth v. Mario M. Perez.

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