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SUPREME JUDICIAL COURT DOES AWAY WITH DISTINCTION BETWEEN PRETRIAL EFFORTS TO SUPPRESS EVIDENCE ON CONSTITUTIONAL GROUNDS, AND PRETRIAL EFFORTS TO SUPPRESS ON NON-CONSTITUTIONAL GROUNDS

Commonwealth v. Grady (2016), involved a State Police arrest for operating under the influence (OUI).  After the arrest, the State Police searched the defendant’s vehicle and discovered, inside a container, certain substances that they suspected were contraband. The suspected illegal drugs were sent to the State Police crime laboratory for analysis, including weighing and identifying the substances.

The defendant was ultimately charged with possession (with intent to distribute) of illegal drugs, along with OUI.  By the time of trial in Superior Court, the forensic analyst who analyzed the drugs was no longer employed by the lab, or available to testify.  Accordingly, the prosecutor filed a motion in limine (latin for “on the threshold,” it is a motion prior to trial, usually seeking a pretrial order that some evidence be suppressed – or admitted – at trial) seeking a court order allowing the prosecution to offer the testimony of a substitute crime lab analyst.

At a hearing on the motion in limine, the criminal defense attorney argued that the defendant’s confrontation rights would be violated if the substitute analyst testified, because the defendant had never had an opportunity, and never would have an opportunity) to cross-examine the analyst who actually did the analysis.[1]  The prosecutor argued that the substitute analyst would not testify as to the original analyst’s findings, but rather would review the laboratory records and offer his own opinion.  The judge allowed the prosecutor’s motion, whereupon the defense lawyer told the judge to note his objection.

On direct examination at trial, the prosecutor asked the substitute analyst if he had formed an opinion as to what the substance was, and the analyst answered affirmatively.  When the prosecutor followed up by asking what the substance indeed was, the defense attorney objected.  The objection was overruled and the analyst said the substance was 4.4 grams of powder cocaine.  Defense counsel did not move to strike that testimony.  At the conclusion of the trial, the defendant was found guilty.

On further appellate review, the Supreme Judicial Court held that defense counsel’s failure to move to strike the testimony of the substitute analyst as to the weight of the substance resulted in the non-preservation of the defendant’s right to appeal the allowance of that testimony.  The Court summarized the law in that regard by noting that

[i]n the past, we have generally required a defendant to object to the admission of evidence at trial even where he or she has sought a pretrial ruling to exclude the evidence either through a motion in limine or by opposing a motion in limine . . . however, we have forgiven a defendant’s failure to raise a contemporaneous objection at trial . . . when a defendant has sought, through a motion in limine, to preclude evidence on constitutional grounds, [and] we have treated [such a] motion as if it were a motion to suppress and have considered the objection at the pretrial stage sufficient to preserve the defendant’s appellate rights. 

The SJC then announced a new rule in Massachusetts, namely:

[g]oing forward, we dispense with any distinction, at the motion in limine stage, between objections based on constitutional grounds and objections based on other grounds.  We will no longer require a defendant to object to the admission of evidence at trial where he or she has already sought to preclude the very same evidence at the motion in limine stage.  {However,] [a]n objection at the motion in limine stage will preserve a defendant’s appellate rights only if what is objectionable at trial was specifically the subject of the motion in limine.

Applying its new rule, the Court held that the defense attorney’s motion in limine to preclude the substitute analyst from testifying nevertheless did not preserve his appellate rights, because the objection before trial was to the substitute analyst’s testifying (which was proper) and not to the analyst’s regurgitation of the original analyst’s findings as to weight of the cocaine (which was improper).  Because there was not an identity of issues objected to in limine and at trial, defense counsel was required to move to strike when the substitute analyst testified as to the weight of the cocaine powder on direct examination.  Because he failed to do so, the Court reviewed the admission of the testimony as to weight under the “substantial risk of a miscarriage of justice” standard, as opposed to the much more relaxed “harmless beyond a reasonable doubt” standard.

Applying the substantial risk of a miscarriage of justice standard, the Court determined that due to the strength of the Commonwealth’s case, it had no “serious doubt” that the result of the trial would have been the same, i.e., conviction of possession of cocaine with intent to distribute, even if the improper weight testimony had been excluded.  The defendant’s conviction was affirmed.

The big takeaway from Com. v. Grady is that, from now on, an objection at the motion in limine stage will preserve a defendant’s appellate rights, but only if what is objectionable at trial was specifically the subject of the motion in limine.  However, the better practice is to object – and then move to strike – at trial regardless of any motion in limine.


Attorney Kevin D. Quinlan

The Law Offices of Kevin D. Quinlan

2 South Main Street, Suite 201

P.O. Box 248

Uxbridge, MA  01569

(508) 723-6384

[1] The Confrontation Clause of the 6th Amendment to the U.S. Constitution provides in part that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial.

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