Massachusetts Criminal Defense Lawyer Blog

A Massachusetts drug case was recently decided by the Massachusetts Supreme Judicial Court. The case of Commonwealth v. Fernandez, decided October 4, 2010, raised the issue of whether the Commonwealth can admit field testing of narcotics to prove that a substance is an illegal narcotic, like cocaine. The Court described field testing as creating a presumption that a particular substance is what the field test reveals. Despite the fact that field testing is nonconclusive, the court allowed the testimony into evidence finding that the lack of certainty went to the weigh of the testimony rather than the admissibility.

The impact of the Fernandez case for Massachusetts criminal defense lawyers will be difficult to measure without additional guidance from the court. The Court appeared to allow the field testing evidence in because at the drug distribution trial the defense lawyer did not provide notice to the Commonwealth that he was objecting to the field testing evidence until the morning of trial. The SJC relied on the defense attorney's late notice of his objection as a basis to admit the evidence; the court found that the late notice precluded the Commonwealth from being able to call a scientist to testify. Additionally, the court noted that the evidence was not called conclusive so that the jury knew of the limited nature of the probative value of the evidence. The Court stated that the defense lawyer was able to attack the weakness of the field test evidence.

This case is a response to the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts where the court precluded the use of a drug certificate to prove that a substance was an illegal narcotic. The Melendez-Diaz Court noted that the Commonwealth could rely on other circumstantial evidence to prove the nature of a substance. Field testing is an attempt to prove the nature of a narcotic without the need for having a chemist appear to testify at a Massachusetts drug trial.

In a Massachusetts drug distribution trial with an objection to field testing, the court should exclude the results as many officers will naturally assume that the substance is illegal narcotics to confirm their own suspicion that began the investigation. Additionally, officers who participated in the criminal investigation cannot be expected to make a neutral analysis of the evidence. Further, field testing will be unable to withstand scientific scrutiny as field testing is unlikely to be able to differentiate between real and counterfeit narcotics. When the court readdresses this issue, it is anticipated that the court will preclude field testing of cocaine from being admitted at trial or narrowly limit the use of the evidence.