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

"[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. (20)

II. HISTORY

A. 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)

B. 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 Freeman to any highly prejudicial trial error, doing little to delineate the contours of the doctrine. (53)

Soon after Freeman, in Commonwealth v. Saferian, (54) the SJC significantly broadened another exception to the finality rule: constitutional claims of ineffective assistance of counsel. (55) Both the Sixth Amendment and Article XII of the Massachusetts Declaration of Rights guarantee criminal defendants the right to counsel. (56) As both the Supreme Court and SJC have made clear, the right to counsel necessarily entails the right to "effective assistance of counsel," and, as such, contemplates a certain baseline standard of competency, below which counsel is constitutionally ineffective. (57) Massachusetts originally adhered to the federal standard for ineffectiveness, which at that time required that a defendant show that counsel "turned the proceedings into a 'farce and a mockery.'" (58) Under Saferian, however, a defendant is entitled to a new trial where defense counsel behaved in a manner that (1) fell "measurably below ... [that of] an ordinary fallible lawyer," and (2) likely deprived the defendant of a "substantial ground of defence." (59) Saferian thus considerably liberalized the ineffective assistance of counsel standard in Massachusetts, as a defendant needed only show that counsel was ineffective with regard to a particular ground of defense, rather than the entire case. (60)

3. The Struggle to Define a "Substantial Risk of a Miscarriage of Justice"

Over time, the Massachusetts courts narrowed the distinction between the Freeman and Saferian standards. (61) In Commonwealth v. Miranda, (62) the Massachusetts Appeals Court developed a three-pronged test for the existence of a substantial risk of a miscarriage of justice under Freeman, requiring a showing that: (1) a "genuine question of guilt or innocence" exists; (2) the error was "sufficiently significant" to have altered the outcome of the trial; and (3) the defendant's failure to object was not simply a tactical choice. (63) A decade later, in Commonwealth v. Amirault, (64) the SJC explicitly endorsed the Miranda elements. (65) This definition of Freeman's substantial risk of a miscarriage of justice test differed from Saferian's ineffective assistance standard only in that the Freeman exception required a real possibility that the defendant did not commit the crime. (66)

By endorsing Miranda, the SJC effectively adopted a guilt-based approach to the Freeman exception. (67) Under such an approach, a new trial would not typically be available where defense counsel failed to object to highly incriminating evidence, because such evidence would dispel the "genuine question of guilt or innocence" Miranda requires. (68) Just two years later, however, the SJC reversed itself in Commonwealth v. Alphas, (69) rejecting Miranda's insistence that a genuine question of the defendant's guilt or innocence is a necessary prerequisite to the existence of a substantial risk of a miscarriage of justice under Freeman. (70) After Alphas, then, Massachusetts appellate courts look simply to the effect of a trial error on the verdict, rather than whether the error may have led to the conviction of an innocent defendant. (71)

III. ANALYSIS

A. The Current State of the Law

By rejecting guilt-based application of Freeman, the SJC removed the key remaining distinction between Freeman's miscarriage of justice standard and Saferian's ineffective assistance standard. (72) The SJC thus made Saferian redundant of Freeman, as both standards require the same level of prejudice to the defendant. (73) Moreover, while Freeman requires only a reasonable inference that counsel's failure to object was not a reasonable tactical decision, Saferian requires a judicial finding that counsel's behavior fell below that of an ordinary, fallible lawyer. (74) After Alphas, then, defendants can more easily obtain a new trial through Freeman than Saferian. (75)

Under most circumstances, a court reviewing for a substantial risk of a miscarriage of justice will reach the same conclusion regardless of whether it weighs the evidence of the defendant's guilt. (76) This is because trial errors prejudicial enough to warrant a new trial typically call the defendant's factual guilt into question. (77) For example, an incorrect jury instruction generally casts doubt upon a defendant's conviction, absent overwhelming evidence of the defendant's guilt or reason to believe that the error did not impact the jury's verdict. (78) This is not the case, however, where the error alleged is admission of incriminating but objectionable evidence. (79) For instance, under the Massachusetts courts' current approach, if a defendant fails to object to admission of evidence obtained in violation of the Fourth Amendment's bar on unreasonable searches and seizures, Massachusetts appellate courts consider whether admission of the evidence created a substantial risk of a miscarriage of justice without reference to the evidence itself. (80) Under a guilt-based approach, an appellate court would consider the objectionable evidence, so long as it is reliable, and order a new trial only if there was a genuine possibility that the jury had convicted an innocent defendant. (81)

The reliability of drug certificates and similar documents stating the results of forensic tests is subject to debate, as Justice Scalia noted in Melendez-Diaz. (82) Even so, the SJC does not appear to share these concerns. (83) Before Melendez-Diaz, such certificates had long served as prima facie evidence in criminal cases in Massachusetts--evidence that defendants were free to rebut. (84) Once a defendant fails to object to admission of drug or ballistics certificates, any Confrontation Clause objection loses its constitutional imperative. (85) Appellate courts should be free to consider such evidence, along with any countervailing evidence, in determining whether a substantial risk of a miscarriage of justice exists. (86)

B. Massachusetts Should Return to a Guilt-Based Approach to Miscarriage of Justice Review

1. Admission of Incriminating but Objectionable Evidence Cannot Create a "Substantial Risk of a Miscarriage of Justice"

Historically, preventing a "miscarriage of justice" did not entail reversal of convictions founded upon compelling evidence of guilt. (87) The Freeman exception originally functioned as a safety valve appellate courts could trigger if it appeared to them that an unpreserved trial error might well have resulted in the conviction of an innocent defendant. (88) In such rare instances, the interests of justice would outweigh the judicial system's strong interest in finality. (89) As critics of this historical, guilt-based definition of a "miscarriage of justice" rightly point out, even the guilty have a right to a fair trial. (90) But such defendants may seek a new trial based on ineffective assistance of counsel, provided they can establish that their attorney's conduct fell below that of an ordinary, fallible lawyer. (91)

Many scholars and jurists have suggested that guilt-based appellate review effectively permits a reviewing court to usurp the fact-finding function of the jury. (92) In reality, however, the guilt-based approach does not ask appellate judges to do any more than they must do under the Massachusetts courts' present approach. (93) In the case of admission of objectionable evidence, the difference between the two approaches simply comes down to whether the reviewing judge does or does not consider the objectionable evidence when determining whether there has been a miscarriage of justice. (94) Appellate courts can consider this evidence as they would any other evidence, without invading the fact-finding province of the jury. (95)

2. Admission of Incriminating but Objectionable Evidence is an Error of Counsel More Properly Reviewed for Ineffective Assistance of Counsel

Massachusetts courts have consistently held that admission of objectionable evidence is error, even if the party prejudiced by that evidence fails to object to its admission at trial. (96) But rights, even of constitutional dimension, are not self-executing. (97) Failure to claim a right is an error of counsel, not of the court, and is thus more appropriately reviewed through the lens of ineffective assistance of counsel. (98)

Reviewing unchallenged admission of incriminating evidence for a substantial risk of a miscarriage of justice rather than for ineffective assistance of counsel misunderstands the differing rationales underlying the two standards. (99) While the ineffective assistance standard derives from the defendant's constitutional right to counsel, miscarriage of justice review is a discretionary power of the court deriving from concerns of justice. (100) Accordingly, counsel's failure to object to admission of incriminating evidence may constitute ineffective assistance, as all defendants enjoy a constitutional right to effective assistance of counsel. (101) If defense counsel was constitutionally effective, however, conviction of a defendant based on compelling evidence works no injustice, even if the court would have excluded the evidence upon proper objection. (102)

3. Reviewing Admission of Objectionable Evidence Under Freeman Erodes the Role of Counsel

There are many tactical reasons why counsel might choose not to object to admission of objectionable evidence such as drug certificates. (103) First, the defendant's theory of the case might not depend on challenging the chemical composition of the substance in question. (104) For example, defense counsel's theory of a case might be that, although there were drugs in defendant's apartment, the defendant was unaware of their presence and thus could not have possessed them. (105) In such cases, insisting on confrontation of the authoring analyst will merely cause delay, and potentially reduce defense counsel's credibility in the eyes of the judge or jury. (106) Second, putting a lab analyst on the stand is not always in the defendant's best interest, as analysts, like all experts, are often highly compelling witnesses. (107) Third, defense counsel may simply be trying to "sandbag" the prosecution by intentionally failing to object in hopes of secretly infecting the case with reversible error and seizing upon that error on appeal should the defendant be convicted. (108)

While only the last of these strategies is illegitimate, none are grounds for a new trial under Freeman or Saferian; defendants must live with their attorneys' reasonable tactical choices. (109) But by eliminating a genuine question of guilt or innocence as a prerequisite for the existence of a substantial risk of a miscarriage of justice, the courts have made Saferian redundant of Freeman, inasmuch as a claim that does not satisfy Freeman would not satisfy Saferian either. (110) While conduct of counsel does factor into the Freeman analysis, Saferian requires a greater showing that counsel's failure to object was not a tactical decision. (111) Moreover, by treating unpreserved objections to the admission of evidence as claims of error on direct appeal, rather than ineffective assistance of counsel in the context of a motion for new trial, any inquiry into counsel's conduct takes place without the benefit of an evidentiary hearing. (112)

Furthermore, the guilt-based approach is more consistent with our adversarial system, which enshrines counsel--not courts--as the arbiters of their clients' rights. (113) Reversal for error to which counsel failed to object should be rare, as it cedes to judges that crucial role our adversarial system reserves for counsel. (114) Thus, courts ought not reverse based on such errors unless there is a substantial risk that the defendant is actually innocent or counsel was so grossly ineffective as to have deprived the defendant of the right to counsel. (115)

IV. CONCLUSION

The Supreme Court's decision in Melendez-Diaz v. Massachusetts is controversial in its own right, further expanding the class of testimonial statements that implicate the Confrontation Clause under Crawford v. Washington. Melendez-Diaz has significant ramifications for Massachusetts and other states that previously relied on drug certificates and similar forensic documents in criminal prosecutions. In order to admit such certificates into evidence, states must now produce at trial the laboratory analysts who prepared the certificates. Predictably, these states also face a tidal wave of appeals based on Melendez-Diaz, whether or not defendants raised a Confrontation Clause objection at trial.

Where defendants appeal based on unpreserved Confrontation Clause objections, Massachusetts courts will review these cases for a substantial risk of a miscarriage of justice--the default standard of review for unpreserved error. Until the past decade, however, such appeals would likely have been unavailing, as admission of objectionable evidence could not create a substantial risk of a miscarriage of justice, as the Massachusetts courts traditionally understood that phrase. After Commonwealth v. Alphas, however, defendants can potentially obtain a new trial based on the admission of drug certificates, despite their failure to object at trial and the absence of any evidence that the certificates are unreliable, as Alphas did away with the requirement that an unpreserved error raise a genuine question of the defendant's guilt or innocence.

The more appropriate remedy for defendants in this situation is a claim of ineffective assistance of counsel under Commonwealth v. Saferian. While requiring no greater showing of prejudice than the miscarriage of justice standard, Saferian's ineffective assistance standard takes a more probing look at defense counsel's conduct to ensure that counsel's failure to object was not simply a reasonable tactical decision, and fell measurably below the standards of an ordinary, fallible lawyer. While criminal defendants are surely entitled to a fair trial, justice does not miscarry when a defendant is convicted based upon compelling--albeit objectionable--evidence, simply because that evidence could have been excluded. Any error in the admission of such evidence lies with counsel, not with the court, and is thus ripe for ineffective assistance analysis.

Assuming counsel was constitutionally effective and there is no genuine possibility that a defendant is innocent, appellate courts ought not bend over backwards to resurrect a defendant's lost objection on appeal. Doing so undermines the role of counsel in our adversarial system and runs afoul of the careful balancing of interests embodied in the miscarriage of justice standard. Justice does not require that appellate courts invoke a discretionary power to blind themselves to compelling evidence.

* The author would like to thank Associate Justice John M. Greaney of the Massachusetts Supreme Judicial Court (Ret.) and Associate Justice Mark V. Green of the Massachusetts Appeals Court for their kind assistance in selecting the topic of this Note. Any shortcomings of the Note, however, are attributable to the author alone.

(1.) Commonwealth v. Alphas, 712 N.E.2d 575, 585 (Mass. 1999) (Greaney, J., concurring) (quoting State v. Applegate, 591 P.2d 371, 373 (Or. Ct. App. 1979)).

(2.) 129 S. Ct. 2527 (2009).

(3.) See id. at 2542 (reversing conviction due to admission of out-of-court affidavits in violation of Sixth Amendment); Tom Jackman, Lab Analyst Decision Complicates Prosecutions: High Court Requires Scientists to Testify, Wash. Post, July 15, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/07/14/AR 2009071403565.html (discussing controversy surrounding Melendez-Diaz decision); see also U.S. Const. amend. VI (reserving to criminal defendants right "to be confronted with the witnesses against [them]"); Crawford v. Washington, 541 U.S. 36, 53-54 (2004) (holding Sixth Amendment limits admission of testimonial statements of witnesses unavailable for cross-examination). While Melendez-Diaz involved a drug certificate, its holding appears to apply to documents stating the results of other forensic tests, such as ballistics certificates. See Commonwealth v. Depina, 922 N.E.2d 778, 787 (Mass. 2010) (concluding Melendez-Diaz "applies equally" to ballistics certificates).

(4.) See Commonwealth v. Verde, 827 N.E.2d 701, 705 (Mass. 2005) (concluding drug certificates satisfy business records exception to Sixth Amendment Confrontation Clause), abrogated by Melendez-Diaz, 129 S. Ct. 2527.

(5.) See Commonwealth v. Vasquez, 923 N.E.2d 524, 530 (Mass. 2010) (noting necessity of determining appropriate standard of review before affirming, modifying, or reversing convictions).

(6.) See infra notes 41-42 (listing cases indicating miscarriage of justice standard appropriate in most appeals based on unpreserved error). See generally Commonwealth v. Freeman, 227 N.E.2d 3, 9 (Mass. 1967) (ordering new trial where unpreserved error created substantial risk of miscarriage of justice). Where defense counsel properly preserves a constitutional error at trial by raising an objection, a Massachusetts appellate court will reverse the defendant's conviction unless the error was harmless beyond a reasonable doubt. See, e.g., Depina, 922 N.E.2d at 787 (applying harmless error beyond reasonable doubt standard to preserved Confrontation Clause objection); Commonwealth v. Muniz, 921 N.E.2d 981, 983 (Mass. 2010) (reversing conviction where admission of forensics certificates over defendant's objection not harmless beyond reasonable doubt); Commonwealth v. Connolly, 913 N.E.2d 356, 375 (Mass. 2009) (identifying harmless error beyond reasonable doubt as standard for preserved constitutional error).

(7.) Compare Commonwealth v. Alphas, 712 N.E.2d 575, 580 & n.6 (Mass. 1999) (stating admission of incriminating but objectionable evidence could create substantial risk of miscarriage of justice), and Commonwealth v. Eason, 681 N.E.2d 863, 870 (Mass. App. Ct. 1997) (holding admission of illegally obtained evidence created substantial risk of miscarriage of justice), rev'd on other grounds, 694 N.E.2d 1264 (Mass. 1998), with Commonwealth v. Amirault, 677 N.E.2d 652, 673 (Mass. 1997) (noting admission of objectionable, incriminating evidence does not create substantial risk of miscarriage of justice).

(8.) See infra Part II.B.1 (discussing traditional Massachusetts rule).

(9.) See Freeman, 227 N.E.2d at 8-9 (ordering new trial due to incorrect jury instruction despite absence of contemporaneous objection); see also Commonwealth v. Miranda, 490 N.E.2d 1195, 1198-201 (Mass. App. Ct. 1986) (describing Freeman and other exceptions to traditional finality rule).

(10.) Commonwealth v. Randolph, 780 N.E.2d 58, 65 (Mass. 2002) (quoting Commonwealth v. Azar, 760 N.E.2d 1224, 1234 (Mass. 2002)) (describing miscarriage of justice standard). As the Randolph court noted, the miscarriage of justice standard is technically a default standard of review in appeals based on unpreserved error, rather than an exception to the finality rule. Id. (noting miscarriage of justice standard applies in "all cases" of unpreserved error).

(11.) See Alphas, 712 N.E.2d at 580 & n.6 (stating substantial risk of miscarriage of justice could exist despite improper admission of compelling evidence).

(12.) See Commonwealth v. Harris, 916 N.E.2d 396, 404 (Mass. App. Ct. 2009) (reviewing admission of drug certificates without defense objection for substantial risk of miscarriage of justice); Eason, 681 N.E.2d at 870 (holding admission of "crucial" evidence from illegal wiretap created substantial risk of miscarriage of justice).

(13.) See Commonwealth v. Amirault, 677 N.E.2d 652, 668 n.15 (Mass. 1997) (discussing meaning of "error"); Commonwealth v. Eason, 681 N.E.2d 863, 875 (Mass. App. Ct. 1997) (Armstrong, J., dissenting) ("[A]pplying miscarriage analysis to a plainly guilty defendant ... cut[s] the doctrine loose completely from its historical moorings...."), rev'd on other grounds, 694 N.E.2d 1264 (Mass. 1998). According to the Amirault court, "a right that must be claimed is not denied if it is not claimed, and the proceeding in which the claim is not made is, in that respect, wholly free from error." Amirault, 677 N.E.2d at 668 n.15.

(14.) See infra Part III.B.3 (arguing current Massachusetts approach erodes role of counsel); see also Paul B. Linn, The Status of the Freeman and Saferian Standards, 86 Mass. L. Rev. 2, 4 (2001) (noting Freeman "is less rigorous regarding counsel's conduct" than ineffective assistance standard).

(15.) See infra Part III.B (advocating return to guilt-based application of miscarriage of justice standard).

(16.) See infra Part II.A (explaining effect of Melendez-Diaz and discussing appropriate standard of review in subsequent appeals).

(17.) See infra Part II.B.1 (discussing traditional finality rule).

(18.) See infra Part II.B.2 (describing adoption of exceptions to finality rule).

(19.) See infra Part II.B.3 (examining competing formulations of miscarriage of justice standard).

(20.) See infra Part III.A (noting anomalous state of Massachusetts law); Part III.B.1 (arguing in favor of traditional guilt-based definition of miscarriage of justice); Part III.B.2 (suggesting admission of evidence without objection more appropriately reviewed for ineffective assistance of counsel); Part III.B.3 (arguing current Massachusetts approach erodes role of counsel).

(21.) U.S. Const. amend. VI. The Confrontation Clause applies to the states through the Due Process Clause of the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 406 (1965) (incorporating Confrontation Clause against states through Fourteenth Amendment).

(22.) See Crawford v. Washington, 541 U.S. 36, 61 (2004) (stating Confrontation Clause ensures reliability of evidence "by testing in the crucible of cross-examination"); G. Michael Fenner, Today's Confrontation Clause (After Crawford and Melendez-Diazj, 43 Creighton L. Rev. 35, 37 (2009) (noting Confrontation Clause's concern with "the testimonial infirmities attached to second-hand evidence"). In this sense, "the Sixth Amendment's Confrontation Clause and the evidentiary hearsay rule stem from the same roots." Dutton v. Evans, 400 U.S. 74, 86 (1970) (plurality opinion); see also Giles v. California, 554 U.S. 353, 365 (2008) ("[C]ourts prior to the founding excluded hearsay evidence in large part because it was unconfronted."). See generally 2 McCormick on Evidence [section][section] 244-246, 252 (2006 & Supp. 2010) (discussing rule against hearsay and comparing it to Confrontation Clause). More specifically, however, the Confrontation Clause stands as a bulwark against the pre-Founding practice of admitting ex parte government examinations of suspects and witnesses in lieu of live testimony. See Crawford, 541 U.S. at 50 (characterizing use of ex parte examinations in evidence as "principal evil" Confrontation Clause protects against).

(23.) 541 U.S. 36 (2004).

(24.) See id. at 54 (concluding Framers intended Confrontation Clause to prohibit admission of "testimonial statements" of absent witnesses). In so holding, the Court abandoned its prior Confrontation Clause jurisprudence, which permitted admission of an absent witness's statement, provided that the statement was sufficiently reliable. See Ohio v. Roberts, 448 U.S. 56, 66 (1980) (holding hearsay admissible despite Confrontation Clause "if it bears adequate indicia of reliability" (internal quotation marks omitted)), overruled by Crawford, 541 U.S. 36; see also Davis v. Washington, 547 U.S. 813, 834 (2006) (Thomas, J., concurring in the judgment in part and dissenting in part) (characterizing Crawford as abandoning Court's prior "general reliability" approach to Confrontation Clause).

(25.) See Crawford 541 U.S. at 53-54 (concluding Sixth Amendment incorporates common-law limitations on admissibility of examinations of absent witnesses).

(26.) See id. at 68 ("We leave for another day any effort to spell out a comprehensive definition of 'testimonial.'").

(27.) See id. (linking admission of prior testimony and police interrogations with historical abuses animating Confrontation Clause).

(28.) 547 U.S. 813 (2006).

(29.) See id. at 822 (clarifying meaning of "testimonial" without providing "exhaustive classification of all conceivable statements").

(30.) See id. (distinguishing testimonial and nontestimonial statements in context of police interrogations). The Court was quick to note that statements outside the context of interrogations are not necessarily nontestimonial. See id. at 822 n.1 ("Our holding refers to interrogations because ... the cases presently before us ... [involve] interrogations....").

(31.) Compare id. at 829-30 (concluding witness's statement to police responding to domestic disturbance testimonial absent "immediate threat" to witness), with id. at 827-28 (holding "frantic" 911 call during ongoing domestic disturbance not testimonial).

(32.) See Davis, 547 U.S. at 822 (eschewing "exhaustive classification of all conceivable statements ... as either testimonial or nontestimonial"); see also Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2543 (2009) (Kennedy, J., dissenting) (stressing Crawford and Davis involved "conventional" percipient witnesses, not lab analysts); John H. Blume & Emily C. Paavola, Crime Labs and Prison Guards: A Comment on Melendez-Diaz and Its Potential Impact on Capital Sentencing Proceedings, 3 Charleston L. Rev. 205, 206 (2009) (characterizing Melendez-Diaz as addressing "yet another unanswered Crawford question"); Paul C. Giannelli, Admissibility of Lab Reports: The Right of Confrontation Post-Crawford, 19 Crim. Just. 26, 27 (2004) (highlighting Crawford's failure to address whether laboratory reports fall within definition of "testimonial"); Christina Miller & Michael D. Ricciuti, Crawford Comes to the Lab: Melendez-Diaz and the Scope of the Confrontation Clause, Bos. B.J., Fall 2009, at 13, 14 (noting uncertain status of laboratory reports after Crawford and Davis).

(33.) 129 S. Ct. 2527 (2009).

(34.) See id. at 2542 (reversing defendant's conviction based on Sixth Amendment violation under Crawford). In Melendez-Diaz, the Commonwealth charged the defendant with distributing cocaine and trafficking in cocaine in an amount between fourteen and twenty-eight grams. Id. at 2530. At trial, the prosecution introduced drug certificates stating that a substance linked to the defendant "was found to contain: Cocaine." Id. at 2531. The trial court overruled the defendant's Confrontation Clause objection, and the jury found him guilty. Id. The appeals court affirmed. Id.

(35.) Id. at 2532 (concluding drug certificates fall within "core class of testimonial statements" under Crawford (quoting Crawford v. Washington, 541 U.S. 36, 51 (2004))); see also Crawford, 541 U.S. at 53-54 (holding Sixth Amendment generally prohibits admission of "testimonial statements" of witnesses not appearing at trial).

(36.) See Melendez-Diaz, 129 S. Ct. at 2532 (characterizing drug certificates as "functionally identical to live, in-court testimony" of preparing analysts). The Court refused to treat lab analysts differently than ordinary witnesses, noting that the reliability concerns underlying the Confrontation Clause apply equally to forensic evidence. See id. at 2536 ("Forensic evidence is not uniquely immune from the risk of manipulation.").

(37.) Id. at 2531 (citing Crawford, 541 U.S. at 54). The majority found the Commonwealth's invocation of the practical difficulties of making state lab analysts available to testify at every trial involving forensic evidence unpersuasive. See id. at 2540 ("The Confrontation Clause ... is binding, and we may not disregard it at our convenience.").

(38.) See Commonwealth v. Verde, 827 N.E.2d 701, 706 (Mass. 2005) (concluding drug certificates beyond scope of "principal evil at which the Confrontation Clause was directed" (quoting Crawford, 541 U.S. at 50)), abrogated by Melendez-Diaz, 129 S. Ct. at 2532 ("[U]nder our decision in Crawford the analysts' affidavits were testimonial statements....").

(39.) See, e.g., Commonwealth v. Charles, 923 N.E.2d 519, 521 (Mass. 2010) (remanding for new trial based on Melendez-Diaz where court admitted drug certificates without defense objection); Commonwealth v. Vasquez, 923 N.E.2d 524, 527-28 (Mass. 2010) (ordering new trial based on Melendez-Diaz challenge defendant raised for first time on appeal); Commonwealth v. Muniz, 921 N.E.2d 981, 983 (Mass. 2010) (reversing defendant's firearm and cocaine possession convictions in light of Melendez-Diaz).

(40.) See Vasquez, 923 N.E.2d at 530 (recognizing appellate review 'focuses in the first instance on the standard of review on appeal").

(41.) See, e.g., id. (stating miscarriage of justice standard applies where "the constitutional challenge has not been properly preserved"); Commonwealth v. Avila, 912 N.E.2d 1014, 1029-30 (Mass. 2009) (holding Confrontation Clause violation did not create substantial risk of miscarriage of justice); Commonwealth v. Randolph, 780 N.E.2d 58, 64-65 (Mass. 2002) (describing miscarriage of justice standard as "default standard" in "all cases" of unpreserved error); Commonwealth v. Farnsworth, 920 N.E.2d 45, 56 (Mass. App. Ct. 2010) (determining constitutionally improper admission of hearsay did not create substantial risk of miscarriage of justice); Commonwealth v. Mendes, 914 N.E.2d 348, 353 (Mass. App. Ct. 2009) (noting miscarriage of justice standard applies in "usual case" of unpreserved error); Commonwealth v. Eason, 681 N.E.2d 863, 870 (Mass. App. Ct. 1997) (concluding admission of unconstitutionally obtained evidence created substantial risk of miscarriage of justice), rev'd on other grounds, 694 N.E.2d 1264 (Mass. 1998).

(42.) See Commonwealth v. Harris, 916 N.E.2d 396, 404 (Mass. App. Ct. 2009) (applying miscarriage of justice standard to Melendez-Diaz issue defendant first raised on appeal); Commonwealth v. Vasquez, 914 N.E.2d 944, 955 (Mass. App. Ct. 2009) (concluding miscarriage of justice standard applies to unpreserved claims of error based on Melendez-Diaz), rev'd, 923 N.E.2d at 527-28 (applying harmless error standard due to timing of defendant's trial between Verde and Melendez-Diaz). A narrow subset of appeals based on Melendez-Diaz is subject to the more defendant-friendly harmless error beyond a reasonable doubt standard, pursuant to the clairvoyance exception. See Vasquez, 923 N.E.2d at 528 (reviewing error as if properly preserved because objection at trial "would have been futile"); infra note 49 (describing clairvoyance exception); see also Charles, 923 N.E.2d at 522 (applying harmless error standard to appeal based on Melendez-Diaz "for the reasons explained in Vasquez"). The clairvoyance exception applies only to cases tried during the interim between the SJC's Verde decision--which seemingly settled the issue of the constitutionality of drug certificates under the Confrontation Clause--and the Supreme Court's decision in Melendez-Diaz. See Vasquez, 923 N.E.2d at 533 ("The defendant should not be penalized because of any doubt ... Verde may have created."); id. at 531 n.8 (noting result "no different" had trial occurred any time after Verde but before Melendez-Diaz decision).

(43.) See Linn, supra note 14, at 2 (describing "harsh but simple" traditional rule); see also Commonwealth v. Freeman, 227 N.E.2d 3, 8-9 (Mass. 1967) (reversing defendant's conviction based on incorrect jury instruction despite defendant's failure to object).

(44.) See Commonwealth v. Alphas, 712 N.E.2d 575, 585 (Mass. 1999) (Greaney, J., concurring) (identifying judicial economy as principal rationale for traditional finality rule); Cady v. Norton, 31 Mass. (14 Pick.) 236, 237 (1833) (setting forth rationale of finality rule); see also Linn, supra note 14, at 2 (discussing purposes of traditional finality rule). In cases involving failure to object to the admission of evidence, the requirement of a contemporaneous objection also enables opposing counsel to ameliorate any problems with their case--most likely by seeking to admit alternative evidence. See Vasquez, 923 N.E.2d at 545 (Spina, J., dissenting in part and concurring in part) (arguing reversal based on unchallenged admission of drug certificates unfair to Commonwealth).

(45.) Cady, 31 Mass. (14 Pick.) at 237 (upholding verdict for plaintiff where defendant failed to object to testimony of unsworn witness). Justice Greaney of the SJC later endorsed the following description of the reasons underlying the finality rule:
   There are many rationales for the [finality] rule: that it is a
   necessary corollary of our adversary system in which issues are
   framed by the litigants and presented to a court; that fairness to
   all parties requires a litigant to advance his contentions at a
   time when there is an opportunity to respond to them factually, if
   his opponent chooses to; that the rule promotes efficient trial
   proceedings; that reversing for error not preserved permits the
   losing side to second-guess its tactical decisions after they do
   not produce the desired result; and that there is something
   unseemly about telling a lower court it was wrong when it never was
   presented with the opportunity to be right. The principal
   rationale, however, is judicial economy. There are two components
   to judicial economy: (1) if the losing side can obtain an appellate
   reversal because of error not objected to, the parties and public
   are put to the expense of retrial that could have been avoided had
   an objection been made; and (2) if an issue had been raised in the
   trial court, it could have been resolved there, and the parties and
   public would be spared the expense of an appeal.


Alphas, 712 N.E.2d at 585 (Greaney, J., concurring) (quoting State v. Applegate, 591 P.2d 371, 373 (Or. Ct. App. 1979)).

(46.) 133 N.E.2d 246 (Mass. 1956).

(47.) See id. at 250 (reserving power to set aside verdict based on unpreserved objection "to prevent a miscarriage of justice"); Linn, supra note 14, at 2 (noting SJC's insistence on its power to reverse based on unpreserved objection).

(48.) Conroy, 133 N.E.2d at 250.

(49.) See Commonwealth v. Saferian, 315 N.E.2d 878, 883 (Mass. 1974) (setting forth standard for constitutionally ineffective assistance of counsel warranting new trial); Commonwealth v. Freeman, 227 N.E.2d 3, 8-9 (Mass. 1967) (ordering new trial based on unpreserved objection to prevent substantial risk of miscarriage of justice). Aside from the Freeman and Saferian exceptions, there are currently two additional exceptions to the finality rule: plenary review of unpreserved error in capital cases, and the so-called "clairvoyance" exception for constitutional error, which applies where an area of constitutional law was not sufficiently developed for defense counsel to have known to object. See Mass. Gen. Laws ch. 278, [section] 33E (2008) (providing for SJC review of "the whole case" following first degree murder conviction); Commonwealth v. Randolph, 780 N.E.2d 58, 65 (Mass. 2002) (stating clairvoyance exception applies where defendants lacked "genuine opportunity" to raise claims of constitutional error (quoting Commonwealth v. Rembiszewski, 461 N.E.2d 201, 204 (Mass. 1984)); see also Commonwealth v. Miranda, 490 N.E.2d 1195, 1198-200 (Mass. App. Ct. 1986) (describing review under [section] 33E and clairvoyance exception).

(50.) 227 N.E.2d 3 (Mass. 1967).

(51.) See id. at 9 (employing "power referred to in ... Conroy" to order new trial despite absence of contemporaneous objection).

(52.) See id. at 8-9 ("[T]here is substantial danger that the jury were misled by the erroneous instruction....").

(53.) See Miranda, 490 N.E.2d at 1202 (describing Freeman as "most fluidly defined" exception to finality rule); Linn, supra note 14, at 3 & n.10 (describing SJC's unsystematic approach to Freeman review).

(54.) 315 N.E.2d 878 (Mass. 1974).

(55.) See id. at 883 (setting forth test for constitutionally ineffective assistance of counsel requiring new trial).

(56.) See U.S. Const. amend. VI (guaranteeing criminal defendants "the right ... to have the Assistance of Counsel for [their] defence"); Mass. Const. pt. 1, art. XII (guaranteeing subjects right "to be fully heard in [their] defence by ... council at [their] election"). The Supreme Court has held that the right to counsel is a fundamental constitutional right. Gideon v. Wainwright, 372 U.S. 335, 342-43 (1963) (reiterating its "unmistakable" conclusion regarding fundamental character of right to counsel).

(57.) See Lavallee v. Justices in the Hampden Superior Court, 812 N.E.2d 895, 903 (Mass. 2004) (citing Kimmelman v. Morrison, 477 U.S. 365, 377 (1986)) ("The right to counsel means the right to effective assistance of counsel."). It is nevertheless unclear whether the right to effective assistance of counsel derives from the right to counsel or from the right to due process under the Fifth and Fourteenth Amendments. See U.S. Const. amend. V ("No person shall ... be deprived of life, liberty, or property, without due process of law...."); U.S. Const. amend. XIV, [section] 1 ("No State shall ... deprive any person of life, liberty, or property, without due process of law...."). Compare Commonwealth v. Urena, 632 N.E.2d 1200, 1202 (1994) (identifying various constitutional sources of right to effective assistance of counsel), with Saferian, 315 N.E.2d at 882 (recognizing right to effective assistance of counsel as deriving from Sixth Amendment). See generally Mark A. Fogg, Comment and Casenote, Defects in Ineffective Assistance Standards Used by State Courts, 50 U. Colo. L. Rev. 389 (1979) (tracing origins and history of right to effective assistance of counsel). As the Supreme Court has explained:
   [T]he Sixth Amendment right to counsel exists, and is needed, in
   order to protect the fundamental right to a fair trial. The
   Constitution guarantees a fair trial through the Due Process
   Clauses, but it defines the basic elements of a fair trial largely
   through the several provisions of the Sixth Amendment, including
   the Counsel Clause....


Strickland v. Washington, 466 U.S. 668, 684-85 (1984).

(58.) Saferian, 315 N.E.2d at 882 (quoting Commonwealth v. Lussier, 269 N.E.2d 647, 649 (1971)); see also Linn, supra note 14, at 2 & n.7 (noting Massachusetts' adherence to federal standard for ineffective assistance of counsel prior to Saferian). Satisfaction of Saferian also satisfies the current federal standard for ineffective assistance of counsel. See Urena, 632 N.E.2d at 1202 (concluding federal standard for ineffective assistance of counsel satisfied if Massachusetts standard satisfied).

(59.) Saferian, 315 N.E.2d at 883. While Saferian dealt with ineffectiveness of trial counsel, defendants may also seek new trial based on ineffectiveness of appellate counsel. See generally Roger L. Michel, Jr., Constitutional Law--Ineffective Assistance of Appellate Counsel, 78 Mass. L. Rev. 110 (1993) (advocating stricter standard for ineffective assistance of appellate counsel).

(60.) See Commonwealth v. Mahdi, 448 N.E.2d 704, 708-09 (Mass. 1983) (characterizing Saferian as "more lenient" than previous "farce and mockery" standard); Bruce Andrew Green, Note, A Functional Analysis of the Effective Assistance of Counsel, 80 Colum. L. Rev. 1053, 1059 (1980) (noting "farce and mockery" test looks at whole trial, not "particular instances of attorney misconduct"). But see Alan Rogers, "A Sacred Duty": Court Appointed Attorneys in Massachusetts Capital Cases, 1780-1980, 41 Am. J. Legal Hist. 440, 463 (1997) (suggesting successful claim of ineffective assistance of counsel "very difficult" under Saferian).

(61.) See Commonwealth v. Curtis, 632 N.E.2d 821, 826 n.4 (Mass. 1994) (stating counsel not ineffective unless failure to object created substantial risk of miscarriage of justice); Linn, supra note 14, at 3 (noting growing similarity of Freeman and Saferian standards).

(62.) 490 N.E.2d 1195 (Mass. App. Ct. 1986).

(63.) Id. at 1202.

(64.) 677 N.E.2d 652 (Mass. 1997).

(65.) See id. at 673 (endorsing Miranda's statement of substantial risk of miscarriage of justice standard). Justice Charles Fried, who wrote the SJC's opinion in Amirault, later characterized his opinion adopting the Miranda elements as an attempt to "rationalize the practice of the Massachusetts courts in respect to post-conviction remedies." Charles Fried, Scholars and Judges: Reason and Power, 23 Harv. J.L. & Pub. Pol'y 807, 825 n.56 (2000).

(66.) Linn, supra note 14, at 3 (comparing Freeman and Saferian standards after Miranda); see also Miranda, 490 N.E.2d at 1199-200 (describing Freeman and Saferian standards). As Paul Linn put it, "the Freeman standard was essentially the Saferian standard with one additional element: a genuine possibility that the defendant was actually innocent of the charges." Linn, supra note 14, at 3.

(67.) See Amirault, 677 N.E.2d at 673 ("Where evidence of guilt is strong and one-sided ... no substantial risk exists of a miscarriage of justice." (quoting Miranda, 490 N.E.2d at 1202)).

(68.) Commonwealth v. Miranda, 490 N.E.2d 1195, 1202 (Mass. App. Ct. 1986); cf. Amirault, 677 N.E.2d at 673 (stating Freeman unavailable where defendant prejudiced by admission of evidence objectionable under Fourth Amendment). According to Amirault, "the Freeman exception would generally not be available to a defendant prejudiced by the unobjected-to admission of highly incriminating evidence obtained in violation of Fourth Amendment protections." Amirault, 677 N.E.2d at 673 (quoting Miranda, 490 N.E.2d at 1202 n.22).

(69.) 712 N.E.2d 575 (Mass. 1999).

(70.) See id. at 580 n.6 ("[A] substantial risk of a miscarriage of justice could still exist where a defendant is convicted based on compelling evidence, none of which should have been admitted at trial."). In doing so, the SJC agreed with the appeals court against its own recent opinion in Amirault. Compare id. (stating erroneous admission of compelling evidence can create substantial risk of miscarriage of justice), and Commonwealth v. Eason, 681 N.E.2d 863, 870 (Mass. App. Ct. 1997) (holding erroneous admission of compelling, unconstitutionally obtained evidence created substantial risk of miscarriage of justice), rev'd on other grounds, 694 N.E.2d 1264 (Mass. 1998), with Commonwealth v. Amirault, 677 N.E.2d 652, 673 (Mass. 1997) (stating erroneous admission of evidence does not generally create substantial risk of miscarriage of justice). Technically, this portion of the Alphas opinion was dicta, as the error under review in that case concerned erroneous jury instructions--not admission of objectionable evidence. See Alphas, 712 N.E.2d at 580 (concluding erroneous jury instructions on stalking by harassment did not create miscarriage of justice); Linn, supra note 14, at 3 n.20 (characterizing Alphas as "technically dicta"). Incorrect jury instructions would almost certainly have called the defendant's factual guilt into question, as required by Miranda. See Linn, supra note 14, at 3 n.20 ("[I]naccurate jury instructions ... indisputably would have undermined the jury's findings of factual guilt...."); infra note 78 and accompanying text (noting incorrect jury instructions necessarily cast doubt on defendant's factual guilt, absent overwhelming evidence).

(71.) See Alphas, 712 N.E.2d at 580 (considering whether erroneous instruction "materially" influenced verdict (quoting Commonwealth v. Freeman, 227 N.E.2d 3, 9 (Mass. 1967))). A few years after Alphas, the SJC described the miscarriage of justice standard as follows:
   In analyzing a claim under the substantial risk standard ... [we]
   ask a series of four questions: (1) Was there error? (2) Was the
   defendant prejudiced by the error? (3) Considering the error in the
   context of the entire trial, would it be reasonable to conclude
   that the error materially influenced the verdict? (4) May we infer
   from the record that counsel's failure to object or raise a claim
   of error at an earlier date was not a reasonable tactical decision?
   Only if the answer to all four questions is "yes" may we grant
   relief.


Commonwealth v. Randolph, 780 N.E.2d 58, 67 (Mass. 2002) (citations omitted).

(72.) See supra note 66 and accompanying text (identifying possibility of defendant's innocence as sole requirement distinguishing Freeman from Saferian).

(73.) See Commonwealth v. Curtis, 632 N.E.2d 821, 826 n.4 (Mass. 1994) (stating counsel not ineffective unless failure to object created substantial risk of miscarriage of justice); Eason, 681 N.E.2d at 875-76 (Armstrong, J., dissenting) (criticizing majority for "consign[ing] the Saferian standard to desuetude"); Linn, supra note 14, at 4 (noting redundancy of Saferian after Alphas). Compare Alphas, 712 N.E.2d at 580 (stating Freeman exception requires error "sufficiently significant" to have plausibly affected outcome of trial (quoting Miranda, 490 N.E.2d at 1202)), with Commonwealth v. Saferian, 315 N.E.2d 878, 883 (Mass. 1974) (requiring counsel "likely deprived the defendant of ... [a] substantial ground of defence").

(74.) See Eason, 681 N.E.2d at 876 (Armstrong, J., dissenting) (criticizing majority for rendering "superfluous ... the core element of Saferian"); Linn, supra note 14, at 4 & n.27 (describing Freeman's requirements regarding counsel's conduct as "less rigorous" than Saferian's). Compare Alphas, 712 N.E.2d at 580 (stating reasons counsel failed to object "can be inferred from the record" for Freeman purposes (internal quotation marks omitted)), with Commonwealth v. Brookins, 617 N.E.2d 621, 625 (Mass. 1993) (concluding assessment of counsel's effectiveness under Saferian requires evidentiary hearing or stipulation of facts).

(75.) See Linn, supra note 14, at 4 n.27 ("Freeman ... is thus more favorable to a defendant than the Saferian standard regarding unpreserved trial errors....").

(76.) See id. at 5 (noting guilt-based approach requires nothing more of appellate courts in most circumstances).

(77.) See id. ("[M]ost material trial errors cast some doubt on the defendant's factual guilt.").

(78.) See Commonwealth v. Amirault, 677 N.E.2d 652, 671 & n.21 (Mass. 1997) (noting incorrect jury instruction creates substantial risk defendant convicted for noncriminal conduct). Compare Commonwealth v. Bell, 917 N.E.2d 740, 762 (Mass. 2009) (Gants, J., dissenting in part) (arguing improper jury instruction created substantial risk of miscarriage of justice where evidence "not overwhelming"), and Commonwealth v. McLaughlin, 744 N.E.2d 47, 52-53 (Mass. 2001) (ordering new trial where incorrect but unobjected-to jury instruction precluded conviction for lesser offense), with Commonwealth v. Van Winkle, 820 N.E.2d 220, 230 (Mass. 2005) (concluding new trial not warranted where erroneous instruction dealt with issue not live at trial), and Commonwealth v. Alphas, 712 N.E.2d 575, 581 (Mass. 1999) (holding incorrect instruction did not create substantial risk of miscarriage of justice where evidence overwhelming).

(79.) See Linn, supra note 14, at 5 (recognizing admission of objectionable evidence as only significant instance where guilt-based approach produces different outcomes).

(80.) See Alphas, 712 N.E.2d at 580 (reviewing unpreserved error under Freeman "without consideration of any evidence erroneously admitted").

(81.) See id. at 589 (Fried, J., concurring) (rejecting majority's refusal to consider erroneously admitted testimony in reviewing for miscarriage of justice); Commonwealth v. Miranda, 490 N.E.2d 1195, 1202 n.22 (Mass. App. Ct. 1986) (stating admission of incriminating evidence without objection does not generally risk miscarriage of justice). As Justice Fried argued: "It is not a miscarriage of justice that a person reliably judged to be guilty failed to avail himself of a technicality and so allowed admission of the proof that clinches the case against him." Alphas, 712 N.E.2d at 588 (Fried, J., concurring).

(82.) See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2536 (2009) ("Forensic evidence is not uniquely immune from the risk of manipulation.").

(83.) See Commonwealth v. Verde, 827 N.E.2d 701, 705 (Mass. 2005) ("Certificates of chemical analysis ... merely state the results of a well-recognized scientific test...."), abrogated by Melendez-Diaz, 129 S. Ct. 2527.

(84.) See id. (concluding drug certificates fall within public records exception to Confrontation Clause); see also Commonwealth v. Vasquez, 923 N.E.2d 524, 533 (Mass. 2010) (noting precedent contrary to Melendez-Diaz "enjoyed a long, unproblematic history in this Commonwealth").

(85.) See Commonwealth v. Amirault, 677 N.E.2d 652, 673 (Mass. 1997) ("Once a defendant has waived his right to face-to-face confrontation, this right drops out as a constitutional absolute.").

(86.) Cf. Commonwealth v. Stewart, 499 N.E.2d 822, 828 (Mass. 1986) ("[H]earsay evidence admitted without objection ... may be given any probative value it possesses.").

(87.) See Commonwealth v. Eason, 681 N.E.2d 863, 875 (Mass. App. Ct. 1997) (Armstrong, J., dissenting) ("[A]pplying miscarriage analysis to a plainly guilty defendant ... cut[s] the doctrine loose completely from its historical moorings...."), rev'd on other grounds, 694 N.E.2d 1264 (Mass. 1998).

(88.) See id. (highlighting historical requirement of factual innocence for substantial risk of miscarriage of justice to exist).

(89.) See supra notes 44-45 and accompanying text (discussing rationale behind traditional finality rule).

(90.) Cf. Thomas H. Hoskinson, Note, Criminal Procedure: Trial Integrity and the Defendant's Rights Under the Plain Error Rule 52(B), 37 Suffolk U. L. Rev. 1129, 1147 (2004) (arguing against guilt-based approach to federal plain error standard because fairness independent of guilt).

(91.) See Linn, supra note 14, at 5 ("[M]ost unpreserved violations of a defendant's constitutional rights would remain remediable under Saferian.").

(92.) See Commonwealth v. Alphas, 712 N.E.2d 575, 584 (Mass. 1999) (Greaney, J., concurring) (arguing guilt-based approach "conceptually flawed" because it invades province of jury); Harry T. Edwards, To Err Is Human, but Not Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167, 1171 (rejecting guilt-based approach to federal harmless error standard). According to Justice Greaney of the SJC, "[a]ny test concerning reversible error that requires an appellate court to determine whether a defendant is actually innocent is conceptually flawed because such a test converts the appellate function into the jury function in violation of their different purposes." Alphas, 712 N.E.2d at 585 (Greaney, J., concurring).

(93.) See Alphas, 712 N.E.2d at 587 (Fried, J., concurring) (arguing guilt-based and current approaches identical "[e]xcept for ineffable distinctions of degree").

(94.) See supra notes 76-81 and accompanying text (comparing current approach and guilt-based approach to miscarriage of justice review).

(95.) See Alphas, 712 N.E.2d at 587 (Fried, J., concurring) (rejecting as "mere wordplay" suggestion that guilt-based approach usurps jury's role); Linn, supra note 14, at 5 ("An appellate court can consider [reliable but illegally obtained] evidence without making any findings of fact.").

(96.) See, e.g., Commonwealth v. Vasquez, 923 N.E.2d 524, 533 (Mass. 2010) (stating "[a]dmission of the drug certificates was constitutional error"); Commonwealth v. Connolly, 913 N.E.2d 356, 374-75 (Mass. 2009) (concluding admission of drug certificates without providing defendant opportunity to cross-examine analyst "was error"); Commonwealth v. Mendes, 914 N.E.2d 348, 353-54 (Mass. App. Ct. 2009) (referring to admission of ballistics certificates without testimony of analyst as "error").

(97.) See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 n.1 (2009) ("[W]hat testimony is introduced must (if the defendant objects) be introduced live." (second emphasis added)); Commonwealth v. Amirault, 677 N.E.2d 652, 668 n.15 (Mass. 1997) ("[A] right that must be claimed is not denied if it is not claimed...."). For this reason, the jury may consider otherwise impermissible hearsay absent objection at trial. See Commonwealth v. Stewart, 499 N.E.2d 822, 828 (Mass. 1986) ("[H]earsay evidence admitted without objection may be considered by the jury and may be given any probative value it possesses.").

(98.) See Amirault, 677 N.E.2d at 668 n.15 (stating proceeding where rights not claimed "wholly free from error"); Commonwealth v. Eason, 681 N.E.2d 863, 875 (Mass. App. Ct. 1997) (Armstrong, J., dissenting) (opining admission of objectionable incriminating evidence without objection makes case "apt for ineffective assistance analysis"), rev'd on other grounds, 694 N.E.2d 1264 (Mass. 1998); Linn, supra note 14, at 5 (arguing availability of ineffective assistance of counsel claim militates in favor of guilt-based approach). As Judge Armstrong of the Massachusetts Appeals Court explained: "An omission of counsel that results in the admission of highly incriminating evidence makes the case more apt for ineffective assistance analysis, because it underscores counsel's inadequacy; but it correspondingly makes the case less apt for the application of miscarriage of justice principles." Eason, 681 N.E.2d at 875 (Armstrong, J., dissenting).

(99.) See Eason, 681 N.E.2d at 875 (Armstrong, J., dissenting) (distinguishing rationales underlying miscarriage of justice and ineffective assistance of counsel standards).

(100.) See id. (characterizing ineffective assistance as "rights-based remedy" and miscarriage standard as discretionary, justice-based remedy); see also supra notes 56-57 and accompanying text (identifying various constitutional sources of right to effective assistance of counsel).

(101.) See Eason, 681 N.E.2d at 875 (Armstrong, J., dissenting) (noting ineffective assistance "must be considered as an available remedy" despite overwhelming evidence of guilt); see also Commonwealth v. Saferian, 315 N.E.2d 878, 881 (Mass. 1974) (reviewing for ineffective assistance of counsel despite recognition of overwhelming evidence of defendant's guilt).

(102.) See Commonwealth v. Alphas, 712 N.E.2d 575, 588 (Mass. 1999) (Fried, J., concurring) (arguing reliably convicted defendant's failure to "avail himself of a technicality" not miscarriage of justice). Indeed, as Justice Fried pointed out, "if the term justice includes justice to the interests of society and justice to the victims of crime, the release... of [a] convicted person on such a basis would itself be a grave miscarriage of justice." Id.

(103.) See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2542 (2009) (noting strategic considerations militating against objection to admission of drug certificates); see also Hoskinson, supra note 90, at 1132 (describing reasons for intentional failure to object). Of course, defense counsel might unintentionally fail to object, but only tactical decisions by counsel are obstacles to obtaining a new trial under Freeman. See Commonwealth v. Miranda, 490 N.E.2d 1195, 1202 (Mass. App. Ct. 1986) (stating "reasonable tactical decision" not to object not grounds for new trial under Freeman).

(104.) See Commonwealth v. Dessources, 905 N.E.2d 586, 592 n.8 (Mass. App. Ct. 2009) (rejecting argument anticipating Melendez-Diaz decision where defendant did not contest nature of substance); Commonwealth v. Reeder, 901 N.E.2d 701, 707 & n.9 (Mass. App. Ct. 2009) (concluding substantial risk of miscarriage of justice absent where nature of substances not disputed); cf. Commonwealth v. Connolly, 913 N.E.2d 356, 374 (Mass. 2009) (listing "premise of the defense" as factor for consideration in miscarriage of justice review); Commonwealth v. Harris, 916 N.E.2d 396, 405 (Mass. App. Ct. 2009) (considering "focus of the defense" in reviewing admission of drug certificates for miscarriage of justice). But see Commonwealth v. Vasquez, 923 N.E.2d 524, 539 (Mass. 2010) (maintaining Commonwealth's burden not shifted to defendant "because of his counsel's choice of defense").

(105.) See Commonwealth v. Madera, 920 N.E.2d 312, 320 (Mass. App. Ct. 2010) (noting defendant's alleged ignorance of drugs in his apartment formed "central theme" of defense). Similarly, defendants facing distribution charges might concede that substances in their possession were indeed drugs, but maintain that the drugs were for personal use only. See Commonwealth v. Rodriguez, 913 N.E.2d 880, 888 (Mass. App. Ct. 2009) (concluding introduction of drug certificates harmless error where defendant argued drugs for personal use); Dessources, 905 N.E.2d at 592 n.8 ("[Defendant's] theory was that the marijuana was intended for personal use rather than for distribution.").

(106.) See Melendez-Diaz, 129 S. Ct. at 2542 (suggesting objection to drug certificates might only "antagonize" judge or jury). But see id. at 2555-56 (Kennedy, J., dissenting) (arguing judges and juries not

"unwilling to accept zealous advocacy" lawyers duty-bound to provide); Vasquez, 923 N.E.2d at 544 (Spina, J., dissenting in part and concurring in part) ("Judges often afford counsel an opportunity to prepare a thorough record [for appellate review]....").

(107.) See Melendez-Diaz, 129 S. Ct. at 2542 (reasoning analyst testimony might "highlight rather than cast doubt upon the forensic analysis"); Douglas R. Richmond, Regulating Expert Testimony, 62 Mo. L. Rev. 485, 487 (1997) ("Professional experts usually are compelling witnesses whose primary function is persuading the jury....").

(108.) See Hoskinson, supra note 90, at 1132 (describing "sandbagging" technique"); see also supra notes 44-45 and accompanying text (setting forth rationale for finality rule). Sandbagging is a "nefarious" tactic by which a defendant, rather than bringing a trial error to the attention of the judge, instead "silently monitor[s] the substantial defect and watch[es] it materialize into ... [reversible] error." See Hoskinson, supra note 90, at 1132 (discussing sandbagging in context of federal plain error standard).

(109.) See Commonwealth v. Saferian, 315 N.E.2d 878, 883 (Mass. 1974) (stating counsel constitutionally ineffective only if showed "serious incompetency, inefficiency, or inattention"); Commonwealth v. Miranda, 490 N.E.2d 1195, 1202 (Mass. App. Ct. 1986) (explaining "reasonable tactical decision" not to object not grounds for new trial under Freeman).

(110.) See supra note 73 (noting redundancy of Freeman and Saferian after Alphas).

(111.) See Commonwealth v. Eason, 681 N.E.2d 863, 870 (Mass. App. Ct. 1997) (concluding failure to object "devoid of tactical explanation" created substantial risk of miscarriage of justice), rev'd on other grounds, 694 N.E.2d 1264 (Mass. 1998); Linn, supra note 14, at 4 (suggesting Freeman "is less rigorous regarding counsel's conduct" than Saferian).

(112.) See supra note 74 (noting Freeman requires only judicial inference that counsel's failure to object not tactical).

(113.) Cf. Jeffrey L. Lowry, Supreme Court Review, Plain Error Rule--Clarifying Plain Error Analysis Under Rule 52(B) of the Federal Rules of Criminal Procedure, 84 J. Crim. L. & Criminology 1065, 1080-81 (1994) (recognizing guilt-based approach to federal plain error standard as consistent with adversarial system).

(114.) See United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir. 1984) (arguing reversal based on unpreserved error "is inconsistent with the premises of an adversary system"); Commonwealth v. Freeman, 227 N.E.2d 3, 9 (Mass. 1967) (employing "rarely used power" to order new trial based on risk of miscarriage of justice).

(115.) See Michel, supra note 59, at 113 (arguing ineffective assistance claims remedy "rare instances of serious incompetency," not "lost issues"); supra notes 87-88 and accompanying text (discussing historical, guilt-based definition of "miscarriage of justice").
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Title Annotation:The Massachusetts Constitution of 1780
Author:Hunter, Jonathan P.
Publication:Suffolk University Law Review
Date:Mar 22, 2011
Words:10669
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