Appeals Court (April 22, 2008)

The Sixth Amendment confrontation clause does not require that the ballistics expert who performed the firearms testing testify at trial in order for the ballistics certificate to be admitted into evidence.

The defendant was charged with both firearms and drug charges. At trial, the Commonwealth introduced into evidence a certificate from a qualified ballistics expert stating that the gun and cartridges seized from the defendant were a working firearm and ammunition in accordance with G.L. c. 140, § 121A.

G.L. c. 140, § 121A reads: A certificate by a ballistics expert of the department of the state police or of the city of Boston of the result of an examination made by him of an item furnished him by any police officer, signed and sworn to by such expert, shall be prima facie evidence of his findings as to whether or not the item furnished is a firearm, rifle, shotgun, machine gun, sawed off shotgun or ammunition, as defined by section one hundred and twenty-one, provided that in order to qualify as an expert under this section he shall have previously qualified as an expert in a court proceeding.

The defendant was convicted of the charges and appealed arguing that the Commonwealth's introduction of the ballistics certificate, without the qualified expert, denied him his constitutional right to confrontation.

The Appeals court held the defendant's confrontation rights were not violated. The court noted that "the statement that the provided items were a firearm and ammunition was not a prohibited expression of opinion, judgment, or discretion, but rather a summary of the established and admissible primary facts that bear on the question whether the weapon and cartridges are a firearm and ammunition with the meaning of the statute. The recitation here was no more a statement of opinion than the recitation of drug weight and composition on a drug certificate. See Commonwealth v. Verde, 444 Mass. 279 (2005)."

Note: The U.S. Supreme Court recently accepted cert on Commonwealth v. Melendez-Diaz, a Massachusetts case, to decide whether a state forensic-lab report (in this case a drug certificate) prepared for use in a criminal case is testimonial evidence subject to the demands of the Confrontation Clause as set for in Crawford v. Washington.