Academic journal article Suffolk University Law Review

Miscarriage of Justice: Appellate Review of Unpreserved Constitutional Objections to the Admission of Evidence in Massachusetts

Academic journal article Suffolk University Law Review

Miscarriage of Justice: Appellate Review of Unpreserved Constitutional Objections to the Admission of Evidence in Massachusetts

Article excerpt

"[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)

I. 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. …

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