Anyone who hated Melendez-Diaz v. Massachusetts now finds themselves looking down the barrel of Commonwealth v. Hollister, App. Ct. No. 08-P-1080 (Nov. 17, 2009), in which the Appeals Court has reversed the conviction of a defendant who did not have the opportunity to cross-examine the technician who determined that the loaded gun at issue was a “firearm.”

Melendez-Diaz was, of course, the most important criminal law ruling from the Supreme Court’s last term. As I’ve already discussed (more than you ever really need to know here and here) it was an elegant and, at base, nearly inarguable Scalia decision which held that introducing certifications of drug lab results without the opportunity to cross-examine their authors at trial is a violation of a defendant’s Sixth Amendment right to confront all witnesses against him. There was never any question whether Melendez-Diaz would be extended to ballistics evidence—as, indeed, it recently formally has been in Morales v. Massachusetts, 129 S. Ct. 2858 (2009)—but the real question was always “how far?” Hollister provides an interesting signpost in that direction.

Hollister concerned an unlicensed possession of a firearm charge arising from a loaded gun found in the glove compartment of the defendant’s truck. During a bench trial, the judge had an opportunity to inspect the weapon itself, as well as a certificate from a ballistics technician who had tested the gun and determined that it fit the statutory definition of a “firearm.” This definition includes:

…a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured.

—G.L. c. 140, § 121 (emphasis added)

This definition necessarily requires that each and every weapon at issue in a gun possession case must be tested by a certified ballistics technician to determine whether the thing is actually operable, just as the chemical makeup of suspected illegal substances must be scientifically confirmed in a drug lab. While the process of testing out guns may be a bit less science-y (if not a lot more fun) than that of spectrographically analyzing dodgy powders, it is still evidence prepared in anticipation of trial which, if properly proven, will provide definitive proof of a significant element of the charge.

It is, in other words, squarely within the kind of evidence which Melendez-Diaz has held must be supported by live testimony at risk of violating the defendant’s Constitutional rights. Under traditional appellate review standards, it becomes the Commonwealth’s burden in each case in which such a violation may have occurred to prove that this Constitutional error was “harmless beyond a reasonable doubt.”

It’s easy to imagine a drug case in which failure to give the defendant the chance to cross-examine the lab tech on his findings might be held to constitute harmless error, and Massachusetts courts have been happy to do so more than once in the months since Melendez-Diaz came down. There are plenty of circumstantial factors—smell, appearance, results of field testing, the presence of scales, cash, and drug paraphernalia, and/or your massive library of live Phish bootlegs, etc.—which may be considered in order to find that any given substance is an illegal drug, and the Commonwealth routinely introduces these right along with lab certificates in such cases. But the only truly reliable way to determine if a given gun is a “firearm” in the statutory sense¹ is to shoot it at something and see what happens. (To be fair, the [admittedly slight] odds that the loaded gun found in the defendant’s truck in Hollister was not actually a “firearm” were probably actually much better than those that one of the plastic sandwich baggies full of white powder in Melendez-Diaz was not some kind of illegal substance. On a purely practical level, there is at least some rationally justifiable reason to keep a fake or broken gun handy—never know whom you may need to scare off, I suppose—at least more so than stashing baggies full of baking soda or whatever).

Hollister was tried and appealed pre-Melendez-Diaz, and really doesn’t have much practical use in a world where prosecutors have already taken to introducing the supporting testimony of analysts of every kind to preclude this issue altogether. Still, it’s a natural and welcome development in post-Melendez-Diaz caselaw, and the Appeals Court has [marksmanship metaphor of your choice here] on this one.

1. Assuming that no one is prepared to testify that they had seen it fired before [↩]

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