On November 17, 2009 the Massachusetts Appeals Court issued its decision in Commonwealth v. Hollister. The issue in Hollister was whether the erroneous admission of a ballistician’s certificate amounted to harmless error. The facts in Hollister are as follows:
The defendant was found near his truck. Inside the unlocked glove box authorities located a loaded firearm. Hollister tried the case without a jury and was found guilty of Unlawful Possession of a Firearm, Carrying a Firearm Without a License and Improper Storage of a Firearm, all Crimes that are Felonies in Massachusetts. To establish operability of the firearm the district attorney relied on a statute that permits proof through a certificate of analysis. The defendant objected to the admission of the certificate. This case was tried prior to the United States Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2542 (2009). The Melendez-Diaz decison makes clear that such certificates violate a defendant’s Sixth Amendment Right to Confrontation. The district attorney argued on appeal that the violation of Hollister’s rights was harmless error. The Appeals Court disagreed reasoning that absent any independent evidence that the gun was operable the case must be reversed.
While it is unlikely that prosecutors in Massachusetts will continue to proceed on firearms cases with a certificate of analysis alone, Massachusetts Gun Possession Defense Lawyers now know that if a prosecution is handled in this manner the district attorney must somehow show that the gun was operable. Evidence such as bullet holes, expended projectiles or ejected cartridge casings might relieve them of the obligation to produce the ballistician in order to prosecute their case.