463 Mass. 353 - Appellee Commonwealth Brief - Mass Cases

in the case of a violation of a defendant's Sixth
Amendment right to counsel that should have led to
suppression, this Honorable Court did not hesitate to
reiterate that the state and federal legal standard
requires that it is "the record of the entire trial"
(including the testimony offered by the defendant in
his case in chief) that should be reviewed.
Commonwealth v. Howard, 446 Mass. 563, 570-571 (2006)
("The admission of testimony obtained in violation of
[the] defendant's [right to counsel] will not amount to
reversible error 'if the reviewing court may
confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable
doubt."'), quoting Commonwealth v. Miles, 420 Mass. 67,
73 (1995) and VanArsdall, 475 U.S. at 68'1 (emphasis
added) . The only exception would be where the Sixth
Amendment violation "contaminated" the "entire criminal
proceeding." Howard, 446 Mass. at 570.
No such "contamination" appears here. This is not
surprising, because a-Melendez-Diaz error by its nature
is not the kind of error that should structurally
"contaminate" an entire prosecution. In Melendez-Diaz
error cases, it is worth noting, the Court is not even
faced with the kind of error that leads to suppression.
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