Miscarriage of justice: appellate review of unpreserved constitutional objections to the admission of evidence in Massachusetts.

• Author: Hunter, Jonathan P.
• Position: The Massachusetts Constitution of 1780

"[R]eversing for error not preserved permits the losing side to second-guess its tactical decisions after they do not produce the desired result ... [and] there is something unseemly about telling a lower court it was wrong when it never was presented with the opportunity to be right." (1)

1. INTRODUCTION

   In Melendez-Diaz v. Massachusetts, (2) the Supreme Court controversially held that criminal defendants have a Sixth Amendment right to cross-examine government lab analysts regarding certificates of chemical analysis (drug certificates) admitted at trial. (3) The Supreme Judicial Court of Massachusetts (SJC) had previously held that admission of drug certificates--which state results of forensic drug tests--does not implicate defendants' confrontation rights under the Sixth Amendment. (4) Massachusetts appellate courts must now decide what standard of review to apply to claims of error arising from admission of such certificates where defendants had no opportunity to confront the authoring analyst. (5) Where defense counsel has failed to object to the introduction of drug certificates at trial, Massachusetts courts will order a new trial only if the admission of the certificates created a substantial risk of a miscarriage of justice. (6) This state of affairs resurrects a debate that ran through the Massachusetts courts a decade ago regarding appellate review of unpreserved objections and the meaning of a "miscarriage of justice." (7)

   Traditionally, Massachusetts appellate courts did not review unpreserved trial errors. (8) In the 1960s, however, the SJC softened this strict rule of finality, empowering appellate courts to order a new trial where an unpreserved trial error created a substantial risk of a miscarriage of justice. (9) In essence, this new exception to the finality rule meant that a Massachusetts appellate court could now order a new trial in any case where unpreserved error "left [the court] with uncertainty that the defendant's guilt ha[d] been fairly adjudicated." (10) By the turn of the century, the SJC had further liberalized appellate review, making clear that serious unpreserved trial errors could create a substantial risk of a miscarriage of justice in spite of compelling evidence of defendant's factual guilt. (11)

   Under this new understanding of the miscarriage of justice standard, admission of highly incriminating but objectionable evidence--such as drug certificates, if the analyst is not available for cross-examination--constitutes potential grounds for a new trial, even if defense counsel fails to object. (12) It seems inappropriate, however, to call the admission of such evidence "error" in the absence of a contemporaneous objection, or to suggest that the conviction of a factually guilty defendant is a "miscarriage of justice." (13) Furthermore, by reviewing admission of objectionable evidence as possible error rather than ineffective assistance of counsel, the courts erode the role of counsel in our legal system. (14)

   This Note argues that, absent objection at trial, the Massachusetts courts should review admission of objectionable evidence as potential ineffective assistance of counsel, rather than as error under the miscarriage of justice standard. (15) Part II.A discusses the impact of the Melendez-Diaz decision on Confrontation Clause jurisprudence and posits that the Massachusetts courts will apply the miscarriage of justice standard to unpreserved claims of error based on Melendez-Diaz. (16) Part II.B.1 begins a discussion of the evolution of appellate review in Massachusetts, describing the state's traditional rule of finality. (17) Part II.B.2 examines the emergence of review for a substantial risk of a miscarriage of justice and ineffective assistance of counsel as exceptions to the traditional rule. (18) Part II.B.3 recounts the Massachusetts courts' struggle to define the limits of miscarriage of justice review. (19) Lastly, using appeals based on Melendez-Diaz as illustrative examples, Part III argues that the Massachusetts courts' current approach is inconsistent with the traditional meaning of "miscarriage of justice," misunderstands the distinction between the miscarriage of justice and ineffective assistance of counsel standards, and undermines the role of counsel in our legal system. (20)

2. HISTORY

   1. The Right of Confrontation After Melendez-Diaz

      1. The Confrontation Clause

         The Confrontation Clause of the Sixth Amendment guarantees criminal defendants the "right ... to be confronted with the witnesses against [them]." (21) The clause reflects concerns regarding the reliability of secondhand evidence, untested by the rigors of cross-examination. (22) In Crawford v. Washington, (23) the Supreme Court interpreted the Confrontation Clause to prohibit admission of "testimonial statements" of witnesses not testifying at trial. (24) Under Crawford, a witness's testimonial statements are inadmissible unless the witness appears at trial, or--if the witness is unavailable to testify--the defendant had a prior opportunity to cross-examine the witness. (25) The Court declined to precisely define the term "testimonial" or delineate the class of statements that implicate the Confrontation Clause. (26) At the very least, however, the Court indicated that prior testimony and police interrogations are testimonial statements, and thus trigger defendants' confrontation rights. (27)

         Two years later, in Davis v. Washington, (28) the Court provided some further guidance as to the meaning of "testimonial." (29) The Court held that, in the context of police interrogations, statements are testimonial when there is no ongoing emergency and the primary purpose of the interrogation is to create a record for use in a criminal prosecution. (30) Thus, the Court concluded that a witness's statement to police after officers had secured the scene of an alleged domestic dispute was testimonial; conversely, the Court held a (911) call under emergency circumstances nontestimonial. (31) Nevertheless, the Court left open the question of whether laboratory reports stating the results of forensic tests--such as drug and ballistics certificates--were testimonial statements under Crawford's interpretation of the Confrontation Clause. (32)

      2. Melendez-Diaz and its Aftermath

         In Melendez-Diaz v. Massachusetts, (33) the Supreme Court held that admission of drug certificates against a criminal defendant who has not had an opportunity to cross-examine the preparing analyst violates the defendant's Sixth Amendment confrontation rights. (34) Relying on its decision in Crawford, the Court concluded that drug certificates fall squarely within the class of testimonial statements that implicate the Confrontation Clause. (35) The Court reasoned that drug certificates are testimonial because they are functionally equivalent to a lab analyst's live testimony. (36) Under Crawford, the Court reiterated, such testimonial statements are inadmissible "unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination." (37)

         Melendez-Diaz changed the law in Massachusetts, as the SJC had previously held that drug certificates were not testimonial statements that trigger a defendant's confrontation right under Crawford. (38) Since Melendez-Diaz, Massachusetts courts have faced a wave of appeals claiming violations of the Confrontation Clause. (39) In hearing such appeals, the courts must necessarily determine the appropriate standard of review. (40) In the absence of a contemporaneous objection, Massachusetts courts generally review admission of constitutionally objectionable evidence under the substantial risk of a miscarriage of justice standard. (41) After Melendez-Diaz, this same standard of review will apply to unpreserved claims of error arising from admission of drug certificates. (42)

   2. The Evolution of Appellate Review in Massachusetts

      1. The Traditional Finality Rule

         The Massachusetts courts did not review objections that litigants first raised on appeal until 1967. (43) The strict requirement of timely objections served judicial economy and prevented litigants who tactically chose not to object from seeking reversal if their gamble did not pay off. (44) At the time, the SJC set forth two rationales for the finality rule:

         [The finality rule] proceeds upon two grounds; one, that if the exception is intended to be relied on, and is seasonably taken, the omission may be supplied, or the error corrected, and the rights of all parties saved. The other is, that it is not consistent with the purposes of justice, for a party knowing of a secret defect, to proceed and take his chance for a favorable verdict, with the power and intent to annul it, as erroneous and void, if it should be against him. (45) Even so, in Commonwealth v. Conroy, (46) the SJC maintained that it possessed the authority to reverse a criminal conviction based on an objection the defendant did not raise at trial. (47) The SJC would only invoke this power, however, "in appropriate instances ... to prevent a miscarriage of justice." (48)

      2. Safety Valves for Unpreserved Objections: The Freeman and Saferian Exceptions

         Over the course of the 1960s and 1970s, the SJC significantly loosened its sometimes draconian rule of finality, adopting a number of exceptions to the traditional rule. (49) In Commonwealth v. Freeman, (50) the SJC first employed the power it referenced in Conroy, ordering a new trial based on an incorrect jury instruction--despite the defendant's failure to object at trial--because the erroneous instruction created a substantial risk of a miscarriage of justice. (51) While chiding defense counsel for failing to bring the defective instruction to the attention of the trial judge, the court nevertheless reversed, fearing that the erroneous instruction misled the jury into convicting the defendant. (52) Going forward, the SJC applied the exception it established in...