New England Law | Boston offers students a high-quality legal education, thanks in large part to our talented faculty. Their diverse legal backgrounds and perspectives inform their classroom teaching and reflect their professional achievements beyond campus. Sometimes, a faculty member’s expertise offers valuable insight in impactful court cases, including ones with potentially wide-reaching implications.
One such instance came after New England Law | Boston Assistant Professor Ben Golden learned that the United States Supreme Court had remanded the Massachusetts case Commonwealth v. Gordon, in light of its decision in Smith v. Arizona. Professor Golden, a member of the Massachusetts Supreme Judicial Court’s Advisory Committee on Massachusetts Evidence Law, joined by two fellow committee members, authored an amicus brief to help inform the Massachusetts Supreme Judicial Court’s decision on the case. As Professor Golden explains, an amicus brief is filed by non-parties to provide relevant information to a court that can support one side or take a neutral position. Professor Golden’s amicus brief took the latter approach, suggesting that the case offered the Massachusetts Supreme Judicial Court an opportunity to re-examine its existing jurisprudence on substitute expert testimony.
Commonwealth v. Gordon originated from attorney Elana Gordon’s arrest in 2018 for delivering strips containing an unidentified substance to an inmate in the Plymouth County house of correction. While Gordon claimed the strips were legal papers, correctional officers suspected they contained Suboxone (a class B controlled substance). Before trial, a forensic analyst from the State police crime laboratory tested one of the strips and confirmed it contained Suboxone. At trial, however, this analyst was no longer with the crime lab. Thus, the prosecution called a supervisor as a substitute expert to testify in her place. But there was one problem: Because the substitute expert did not actually conduct or participate in the testing, she had to rely on the absent analyst’s notes and report to support her opinion. Moreover, during her direct examination, the supervisor testified to the contents of the absent analyst’s notes, stating that she had followed the crime lab’s protocols and procedures.
Gordon was convicted and sentenced to serve six months in the house of correction. In November 2023, the Massachusetts Appeals Court affirmed her conviction. However, in June 2024, after the United States Supreme Court issued Smith v. Arizona, Gordon’s case returned to the Massachusetts Supreme Judicial Court for further consideration.
Significant confusion centered around potential violations of Gordon’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. That provision guarantees a criminal defendant the right “to be confronted with the witnesses against him [or her].” Interpreting and applying Smith v. Arizona, the Massachusetts Supreme Judicial Court ruled that Gordon’s Confrontation Clause rights were violated because she never had the opportunity to confront the absent analyst. Specifically, the Court held that a substitute expert’s opinion that “depends on the testimonial hearsay of an absent analyst” violates the Confrontation Clause unless the expert’s opinion is “independent of the truth of the absent analyst’s statements regarding the protocols and procedures the analyst said she followed.” The Court reasoned that the substitute expert’s opinion did rely on testimonial hearsay, vacated Gordon’s conviction, and called for a new trial.
Professor Golden agrees certain missteps occurred during Gordon’s trial. “In Massachusetts, we developed what’s known as a common-law rule of evidence,” which provides that an expert may offer an “independent opinion,” but generally cannot disclose the hearsay basis for that opinion on direct examination. According to Professor Golden, the substitute expert in Commonwealth v. Gordon properly shared her opinion that the tested substance was Suboxone, but stepped afoul when she went on to testify to the contents of the absent analyst’s lab notes. “That was improper under Massachusetts law,” Professor Golden says.
The Massachusetts Supreme Judicial Court could have stopped there, but it did not. Instead, the Court held that the substitute expert’s testimony violated Gordon’s Sixth Amendment rights because in its view, after Smith v. Arizona, a substitute expert cannot share an opinion if it depends on testimonial hearsay, even if the expert does not disclose this evidence to the jury. In the Court’s words, “the relevant witness against the accused, in a constitutional sense, is the absent analyst.” Professor Golden says Smith v. Arizona “does not compel this result” and the Court’s contrary conclusion was “unnecessary” to deciding the case. Indeed, the United States Supreme Court in Smith v. Arizona did not decide whether the absent analyst’s notes in that case were “testimonial”; nor did the Court address a situation where a substitute expert relies on an absent analyst’s notes but does not disclose their contents to the jury.
Most importantly, Professor Golden questions Commonwealth v. Gordon’s implications for future cases, saying “only time will tell whether, and to what extent, prosecutors will be able to use substitute experts.” But he points out that clarification is key. “We need clarity on how a substitute expert may give an opinion without running afoul of the Confrontation Clause,” he says, noting that little guidance currently exists. He worries that, without this guidance, the Commonwealth “simply won’t be able to use forensic evidence to prosecute in many cases because the original testing analysts won’t be available to testify,” including in drug cases, firearms cases, and cases involving DNA evidence. He expects that changes to how the State crime lab structures its testing may help solve the problem, but notes that these changes likely will require significant expenditure of additional resources and will not solve the problem in every case. He also notes the Massachusetts Supreme Judicial Court expressly did not address the situation where a substitute expert provides an opinion based on raw, machine-generated data alone, without relying on the absent analyst’s notes; he doubts the Court will approve this practice unless non-testimonial hearsay supports how the machine produced that data.
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Professor Ben Golden is just one New England Law faculty member imparting their wisdom both in the classroom and in the world around it. For more information about our distinguished faculty, visit our faculty website today.