Derr v. State

GREENE, J. On June 29, 2006, Appellant, Norman Bruce Derr (Derr), was convicted of multiple sexual offenses in the Circuit Court for Charles County. On appeal, Derr challenges the admission of forensic evidence introduced at trial through the testimony of an expert witness who did not take part in or observe the physical testing of the evidence, or independently determine the test results. In the Court of Special Appeals, Derr presented the following questions for review: 1 1. Whether Derr’s federal and state constitutional rights of confrontation were violated when the State was permitted to introduce the opinion of a serology examiner and the results of DNA testing of biological evidence through the testimony of an expert who did not participate either directly or in a supervisory capacity, without calling the analyst who performed the testing as a witness or showing that the analyst was unavailable and Derr had a prior opportunity to cross-examine? 2 2.

Whether Derr’s constitutional and statutory rights to discovery were violated when the State used a statistical ²¹⁶ method to describe the rarity of a DNA profile that did not quantify the chance of a coincidental match where the coincidental match number was required to demonstrate the limitation of the State’s chosen statistic? 3. Whether a “match” derived from a trawl of a DNA database was sufficient evidence to sustain Derr’s convictions in the absence of any other evidence that corroborated his identification as the perpetrator of the offenses? 4. Whether the court erred when it refused to instruct the jury on the meaning of the phrase “reasonable degree of scientific certainty”? We shall answer the first question in the affirmative.

In this case, there are three pieces of evidence and related testimony that implicate the Confrontation Clause: a 1985 serological report, and the DNA analysis from 2002 and 2004. We shall hold that a testimonial statement may not be introduced into evidence without the in-court testimony of the declarant, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the witness. Here, the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing is a witness subject to confrontation and cross-examination within the meaning of the Confrontation Clause. In addition, the DNA profile and analysis constituted testimonial statements prepared in anticipation of trial, which were offered into evidence through the testimony of a surrogate who did not participate in or observe the testing procedures.

Derr was thus not able to confront the witnesses who made testimonial statements against him, and he was not provided with a prior opportunity to cross-examine the witnesses. Therefore, the testimony offered by the surrogate and the admission of the serological reports and DNA evidence were subject to the protections of the Confrontation Clause. 3 ²¹⁷ FACTUAL AND PROCEDURAL BACKGROUND On September 27, 2004, Norman Bruce Derr was charged with multiple sexual offenses relating to the rape of Alida Berman on December 9, 1984. 4 At the time of the rape, the victim was transported to Physicians Memorial Hospital where she was examined by a nurse and a physical evidence recovery kit (PERK) was used to collect biological evidence. Using the PERK, the nurse collected a genital swab, two vaginal swabs, and an anal swab. The physical evidence was taken to the FBI crime lab for serological testing, which was performed by the lab technician who was a serological examiner.

In 1985, the serological examiner conducted serological testing, identified sperm and semen on parts of the swabs, and detailed his findings in a serological report. Despite the testing and other investigation, the case remained unsolved and became inactive. Seventeen years later, in 2002, a detective reviewed the case and submitted the PERK to the FBI crime lab for forensic analysis. Dr. Maribeth Donovan, an FBI DNA analyst, performed the DNA analysis of the biological evidence.

A DNA profile of the suspect, consisting of thirteen genetic markers, was generated from the DNA on the vaginal swabs. This profile was entered into a national database containing 2.5 million DNA profiles, referred to as the Combined DNA Identification System (CODIS). In 2004, a match was discov ²¹⁸ ered between Derr’s existing profile in CODIS and the profile generated in 2002 by Dr. Donovan. The State then obtained a search warrant to seize additional DNA from Derr, in order to create a new “reference DNA sample” and to verify that Derr’s profile in CODIS was accurate.

The testing of the new sample was performed by an unnamed team of biologists and supervised by Dr. Jennifer Luttman, a DNA analyst with the FBI, in 2004. Upon interpretation of the biologists’ results, Dr. Luttman determined that the reference sample matched Derr’s profile in CODIS. Dr. Luttman was not, however, involved with the 1985 serological testing or the 2002 DNA testing of the PERK that resulted in the DNA profile of the alleged assailant. Further, Dr. Luttman did not perform the actual DNA testing in 2004, but rather merely “supervised” or reviewed her team’s analysis, with no indication that she observed the “bench work” 5 at the time it was performed by her team.

Based on the match between Derr’s CODIS profile and the DNA profile obtained from the DNA analysis of the evidence, Derr was arrested and charged with the crimes mentioned. The defense filed preliminary motions in the Circuit Court for Charles County challenging the admission of Dr. Luttman’s proposed testimony. Two hearings were held in limine to determine whether the State could introduce the opinion of the serological examiner and the results of the PERK analysis solely through the use of “surrogate testimony,” with Dr. Luttman as the surrogate. The term “surrogate testimony” refers to expert testimony rendered by a lab supervisor, rather than by the analyst who performed the tests.

Derr argued that he had a right under the Confrontation Clause to confront and cross-examine the original analysts. The Circuit Court ruled that the serological report was not testimonial and ²¹⁹ was, therefore, admissible through Dr. Luttman under the business records exception to the hearsay rule 6 and under Maryland Rule 5-703 7 as the basis of Dr. Luttman’s expert opinion. The court also ruled that, while the opinion of the DNA analyst from 2002 was testimonial, the underlying analysis of the DNA was nontestimonial and was admissible both as a business record and as the basis of Dr. Luttman’s opinion. At trial, the State did not request that Mrs. Berman, the alleged victim, make an in-court identification of Derr or identity him as the assailant based on photos of Derr taken in 1982 and 1986, which were entered into evidence.

The State also did not call the serological examiner or Dr. Donovan, the FBI DNA analyst who performed the 2002 DNA testing, to connect Derr to the results of the investigation in this case. ²²⁰ Instead, the State relied solely on testimony from Dr. Luttman, who was accepted by the court as an expert in the fields of forensic serology and forensic DNA analysis, and who was permitted to testify regarding the 1985, 2002, and 2004 testing results. During her testimony, Dr. Luttman explained the procedure for identifying sperm and semen, as well as the procedure for creating a DNA profile. Dr. Luttman also testified regarding the opinion of the 1985 serologist and the DNA testing procedures and results of the 2002 test. She testified that it was her opinion, based on the tests conducted, that Derr’s DNA profile matched that of the suspect.

She supported her opinion by stating it was based on a “reasonable degree of scientific certainty.” The jury found Derr guilty of four counts relating to the sexual assault of Mrs. Berman. 8 Derr filed a timely appeal to the Court of Special Appeals. Appellate argument in the intermediate appellate court was deferred while the Supreme Court of the United States considered Melendez-Diaz v. Massachusetts, 557 U.S. -, 129 S.Ct. 2527 , 174 L.Ed.2d 314 (2009) (Melendez). Subsequently, this Court granted certiorari on its own motion, prior to the Court of Special Appeals rendering a decision in the case. DISCUSSION A. DNA Evidence In order to determine the application of Confrontation Clause, principles to a DNA case, a brief explanation of the tests performed and the procedures followed is necessary.

In describing the science of DNA evidence, we have said: Deoxyribonucleic acid (‘DNA’) is the organic material that provides the genetic instructions for all individual hereditary characteristics. The importance of DNA for forensic purposes is that DNA does not vary within an individual ²²¹ and, with the exception of identical twins, no two individuals have the same DNA configuration. The molecular structure of DNA is commonly referred to as a ‘double helix,’ which resembles a spiraling ladder, and which is composed of twisted double strands of repeated sequences of ‘nucleotides.’ The sides of the ladder are composed of the ‘nucleotides,’ which are organic bases that pair with one another to form the ‘rungs’ of the double helix. It is the repeating sequence of base pairs along the DNA double helix that comprise ‘genes,’ which determine the unique physiological traits of human beings.

The specific position that a gene occupies is called its ‘locus.’ An individual’s entire complement of DNA is known as the ‘genome.’ The vast majority of the base pair sequences of human DNA are identical for all people. There are, however, a few DNA segments or genes, called ‘polymorphic loci,’ which are highly variable among individuals. The alternative forms of these individual polymorphic gene fragments are called ‘alleles.’ It is these polymorphisms that have great significance for forensic DNA analysis because they provide the basis for DNA identification. Young v. State, 388 Md. 99, 106-07 , 879 A.2d 44, 48-49 (2005) (internal citations omitted) (quoting Gross v. State, 371 Md. 334 , 339-40 n. 1, 809 A.2d 627 , 630 n. 1 (2002)).

The DNA analysis begins when a sample is transported to a DNA laboratory by law enforcement personnel. Office of the Inspector General, The FBI DNA Laboratory: A Review of Protocol and Practice Vulnerabilities (May 2004), http://www. justice.gov/oig/special/0405/index.htm [hereinafter FBI Proto col]. Forensic scientists visually examine the evidence for indications of bodily fluid which may contain DNA evidence. Id.

The scientists then perform tests to determine if DNA is present. Id. Typically, a cotton swab is used to remove dried body fluid, and the DNA is extracted from the cotton swab. Id. ' The common procedure used in DNA analysis is called polymerase chain reaction (PCR), which is “an amplification ²²² procedure that reproduces repeatedly a short segment of DNA, making it possible to analyze minute or degraded samples.” Young, 388 Md. at 108 , 879 A.2d at 49 .

Further, PCR analysis begins with a three-step process to amplify the DNA sample: (1) denaturization (the DNA is heated to separate the two strands); (2) annealing (primers containing nucleotide sequences that are complementary to the DNA region being amplified are added to the DNA sample, which bond to the gene when cooled); (3) extension (the gene is “copied” repeatedly in order to produce a larger sample of DNA for analysis). Once PCR amplification has been completed, analysis of the DNA profile and match determination can be conducted through the utilization of several different genetic markers. The markers employed by the laboratory in the instant case are short tandem repeats (“STR”). STRs are DNA sequences consisting of two to six base pairs.

STRs particularly are useful in analyzing small DNA samples, because loci containing STRs are present with great frequency throughout the chromosomes. The loci have a large number of alleles and usually are susceptible to unique identification. The FBI has designated thirteen core STR loci and a sex-typing marker (amelogenin) for identification in its national database of convicted felons, the Combined DNA Index System (“CODIS”). DNA profiling typically is used to compare a suspect’s DNA with a sample of DNA taken from a crime scene. “DNA profiling” is a catch-all term for a wide range of methods employed to study genetic variations, including RFLP and PCR/STR typing.

All types of DNA analysis involve three basic steps: (1) processing or typing of the DNA samples (to produce x-ray films that indicate the lengths of the polymorphic fragments); (2) match determination (comparison of the films to determine whether any sets of fragments match); and (3) statistical analysis (to determine the statistical significance of any match between the two DNA samples). This three-step process produces ²²³ two distinct, but interrelated, types of information: (1) molecular biological information (whether a match exists between an unknown DNA sample and a sample taken from a suspect); and (2) population genetics information (if a match exists, the statistical probability that the unknown sample came from a third party with the same DNA pattern as the suspect). DNA evidence cannot be attributed conclusively to one person unless examiners analyze the entire DNA molecules of the DNA evidence and the DNA sample from that person respectively. Two unrelated individuals can have identical DNA fragments that are examined in a particular type of DNA analysis—ie., identical DNA patterns at the targeted loci.

The underlying theory of the forensic use of DNA testing is that as the number and variability of the polymorphisms analyzed increases, the odds of two people coincidentally sharing the same DNA profile becomes vanishingly small. Therefore, when a DNA “match” has been declared, a conclusive identification of a crime suspect as the source of the unknown DNA sample is not being made. Rather, the suspect simply has been “included” as a possible source of the DNA material, because the suspect’s DNA sample has matched the crime scene DNA sample at a certain number of critical alleles. Young, 388 Md. at 108-11, 879 A.2d at 49-51 .

It is important to explain what a DNA profile is composed of, and how it is created. As referenced above, the DNA is heated to separate the nucleotides. The chemical in which the DNA is heated contains markers that identify “the starting and ending points of the DNA fragment that is duplicated.” FBI Protocol. After the DNA fragments are copied, the fragments are sorted according to length in a process called electrophoresis.

Id. Special software measures the length of the varying DNA fragments. Id. This process produces “an electropherogram, or graph that displays a series of different-colored peaks of different heights.” Roberts v. United States, 916 A.2d 922, 927 (D.C.2007).

The electropherogram reveals ²²⁴ the primers used during amplification which contain fluorescent markers. “The machine and the software then represent the lengths of the various fragments as peaks on a graph.... ” FBI Protocol. Specifically: [Sjoftware has two components, GeneScan® and Genotyper®. Data viewed in GeneScan®, as appears above, is the raw, unanalyzed, collection data that reflects everything the laser detects, including interference that is common in electrophoresis instruments (Genescan® data). Genotyper® allows forensic scientists to take GeneScan® data and display it in a format that conceals background noise and peripheral information, and to focus their review on the results of the control and evidence samples.

FBI Protocol. A DNA analyst, or examiner, interprets the data displayed on the electropherogram, which reveals the alleles seen at all the examined loci. Roberts, 916 A.2d at 927 . The DNA examiner then works with the Genotyper graph and documents the allele values at each chromosomal location or loci, forming the DNA profile.

FBI Protocol. This DNA profile is then compared to profiles from known individuals or inputted into CODIS to find a match within the database, which contains DNA profiles obtained from known sources. See Roberts, 916 A.2d at 927 . With this information in mind, we turn to the legal implications and requirements of DNA evidence.

B. Applicable Law and Legal Precedent The Sixth Amendment provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]” U.S. Const, amend.

VI

The same right is secured by Article 21 of the Maryland Declaration of Rights, which states that “in all criminal prosecutions, every man hath a right ... to be confronted with the witnesses against him ... [and] to examine the witnesses for and against him on oath[.]” See Crawford v. State, 282 Md. 210, 211 , 383 A.2d 1097, 1098 (1978). As we have stated, “[t]here are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous ²²⁵ than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” State v. Breeden, 333 Md. 212, 219 , 634 A.2d 464, 467 (1993) (quoting Barber v. Page, 390 U.S. 719, 721 , 88 S.Ct. 1318, 1320 , 20 L.Ed.2d 255, 258 (1968)). Further, “[t]wo significant purposes lie at the core of the right of confrontation. One is to provide the defendant with an adequate opportunity for cross-examination.

The other purpose is to give the judge and jury opportunities to observe the testifying witness’s demeanor.” Breeden v. State, 95 Md.App. 481, 495-96 , 622 A.2d 160, 167 (1993) (internal citations omitted), aff 'd, State v. Breeden, 333 Md. 212 , 634 A.2d 464 (1993); see Crawford, 282 Md. at 214 , 383 A.2d at 1099 (asserting that the primary purpose of requiring confrontation is to prevent depositions and other non-live testimony from being used against an accused in lieu of a personal examination and cross-examination of the witness). In Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), the Supreme Court of the United States set forth a framework for evaluating violations of the Confrontation Clause of the Sixth Amendment. 9 Crawford, 541 U.S. at 50-56 , 124 S.Ct. at 1363-67 , 158 L.Ed.2d at 192-96 . The Court stated that the Confrontation Clause “applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ ” Crawford, 541 U.S. at 51 , 124 S.Ct. at 1364 , 158 ²²⁶ L.Ed.2d at 192. Quoting the American Dictionary of the English Language from 1828, the Court defined testimony as “ ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id.

The Court went on to state that the purpose of the Confrontation Clause was to protect against out-of-court statements, specifically formal statements to government officers, being admitted without an opportunity to confront the declarant. Crawford, 541 U.S. at 51 , 124 S.Ct. at 1364 , 158 L.Ed.2d at 193 . Crawford concluded that testimonial statements are subject to the protections of the Confrontation Clause and cannot be admitted without live testimony, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. at 53-54 , 124 S.Ct. at 1365-66 , 158 L.Ed.2d at 194 .

In defining the term “testimonial statement,” the Court in Crawford stated: Various formulations of this core class of “testimonial” statements exist: ex parte in-court testimony or its junctional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. These formulations all share a common nucleus and then define the Clause’s coverage at various levels of abstraction around it. (Emphasis added.) (Internal citations and quotations omitted.) Crawford, 541 U.S. at 51-52 , 124 S.Ct. at 1364 , 158 L.Ed.2d at 193 . Hence, in Crawford, the Court referred to the purpose of the use of material in a later trial in two contexts.

First, “pretrial statements that declarants would reasonably expect to be used prosecutorially,” and second, “statements that were made under circumstances which would lead an ²²⁷ objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. (internal citations and quotations omitted). The Court subsequently held in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006), that if “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution,” then the statement is testimonial. Davis, 547 U.S. at 822 , 126 S.Ct. at 2274 , 165 L.Ed.2d at 237 .

In contrast, statements “are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Davis, 547 U.S. at 822 , 126 S.Ct. at 2273 , 165 L.Ed.2d at 237 . Likewise, in Michigan v. Bryant, 562 U.S. -, 131 S.Ct. 1143, 1155 , 179 L.Ed.2d 93, 107 (2011), the Court held that “[w]hen, as in Davis , the primary purpose of an interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not within the scope of the Clause.” The Court further stated that “[t]he existence of an ongoing emergency is relevant to determining the primary purpose of the interrogation because an emergency focuses the participants on something other than ‘prov[ing] past events potentially relevant to later criminal prosecution.’ Davis, 547 U.S. at 822 , 126 S.Ct. [at 2274,] 165 L.Ed.2d [at 237].” Bryant , 562 U.S. at -, 131 S.Ct. at 1157 , 179 L.Ed.2d at 109 . These cases combined reveal the Court’s emphasis on the purpose for which a statement was made in determining its testimonial nature. Subsequently, in Melendez, the trial court “admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine.” Melendez, 557 U.S. -, 129 S.Ct. 2527, 2530 , 174 L.Ed.2d 314, 319 (2009).

At trial, the prosecution placed into evidence the three certificates of analysis, which were certified by the analysts who performed the drug testing, but without the testimony of the analysts or any other witness qualified to testify about the methods used or the results obtained. Melendez, 557 U.S. at -, 129 S.Ct. at ²²⁸ 2531, 174 L.Ed.2d at 320 . In Melendez, the United States Supreme Court held that the certificates of drug analysis were testimonial because “there is little doubt that the documents at issue in this case fall within the ‘core class of testimonial statements’ ” as defined by Crawford. Melendez, 557 U.S. at -, 129 S.Ct. at 2532 , 174 L.Ed.2d at 321 .

The Court explained that the certificates were “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination,’ ” opining that had an analyst been called, he or she would have been expected to testify as to the identity and weight of the substance, which was the precise evidence presented by the certificates. Id. (quoting Davis, 547 U.S. at 830 , 126 S.Ct. at 2278 , 165 L.Ed.2d at 242 ). The Court continued that the certificates were “quite plainly affidavits” because they were “ineontrovertibly a ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id.

(quoting Crawford, 541 U.S. at 51 , 124 S.Ct. at 1364 , 158 L.Ed.2d at 192 ). The Court further stated: [N]ot only were the affidavits “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” Crawford, 541 U.S. at 52 , 124 S.Ct. [at 1364], 158 L.Ed.2d [at 193], but under Massachusetts law the sole purpose of the affidavits was to provide “prima facie evidence of the composition, quality, and the net weight” of the analyzed substance[.] (Emphasis in original.) Id. (quoting Mass. Gen.

Laws ch. 111, § 13 ). Thus, “[t]he analysts who swore the affidavits provided testimony against Melendez-Diaz, and they are therefore subject to confrontation[.]” Melendez, 557 U.S. at -, 129 S.Ct. at 2537 n. 6, 174 L.Ed.2d at 327 n. 6. Further, in Melendez, the Court noted that “[l]ike expert witnesses generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination.” Melendez, 557 U.S. at -, 129 S.Ct. at 2537 , 174 L.Ed.2d at 327 . In Melendez, the Court made two important conclusions relevant to our analysis here: “the analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for ²²⁹ purposes of the Sixth Amendment.” Melendez, 557 U.S. at -, 129 S.Ct. at 2532 , 174 L.Ed.2d at 322 .

The Court therefore held that the certificates were inadmissible absent the analysts’ testimony or a showing that they were unavailable and that the defendant had a prior opportunity to cross-examine. Id. The holding in Melendez left unanswered the question of how to apply the principle to cases involving surrogate testimony, where a supervisor for a lab testifies, but the actual person who created the data or report does not. Recently, in Bulleoming v. New Mexico, — U.S. -, 131 S.Ct. 2705 , 180 L.Ed.2d 610 (2011), the United States Supreme Court held that “[a]n analyst’s certification prepared in connection with a criminal investigation or prosecution” is testimonial and therefore the accused has the right to be confronted with the analyst who performed the testing.

Bullcoming, — U.S. at -, 131 S.Ct. at 2713-14, 180 L.Ed.2d at 620 . The Court also stated that Melendez “refused to create a ‘forensic evidence’ exception to [the rule in Crawford that testimonial statements are not admissible unless the declarant is unavailable and the defendant has a prior opportunity to cross-examine].” Bullcoming, — U.S. at -, 131 S.Ct. at 2713, 180 L.Ed.2d at 620 . In Bullcoming, the evidence against the petitioner included a forensic laboratory report certifying Bullcoming’s blood-alcohol concentration. Bullcoming, — U.S. at -, 131 S.Ct. at 2709, 180 L.Ed.2d at 617 .

At trial, the State did not call as a witness the analyst who performed the test and signed the certification; rather, over defense objection, the State called to testify “another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test” to introduce into evidence the test results. Bullcoming, — U.S. at -, 131 S.Ct. at 2709, 180 L.Ed.2d at 618 . In State v. Bullcoming, 147 N.M. 487 , 226 P.3d 1, 8-9 (2010), the New Mexico Supreme Court held that although the laboratory report introduced at Bullcoming’s trial was testimonial under Melendez, the report was validly admitted because the analyst was a “mere scrivener,” and therefore the surrogate testimony was sufficient to satisfy Bullcoming’s confron ²³⁰ tation right. The United States Supreme Court granted certiorari to answer the question: Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification.

(Emphasis added.) Bullcoming , — U.S. at -, 131 S.Ct. at 2713, 180 L.Ed.2d at 619 . In answering the question, the Court held: As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness. Id. Accordingly, the United States Supreme Court reversed the holding of the New Mexico Supreme Court.

The Court first addressed the issue of surrogate testimony, and New Mexico’s holding that the analyst merely transcribed the results generated by the machine without interpretation or independent judgment. Bullcoming , — U.S. at -, 131 S.Ct. at 2714, 180 L.Ed.2d at 619-20 . The Court stated that the certification “reported more than a machine-generated number,” and went on to list all of the representations made in the report “relating to past events and human actions not revealed in raw, machine-produced data[.]” Bullcoming , — U.S. at -, 131 S.Ct. at 2714, 180 L.Ed.2d at 621 . The Court held that such representations are “meet for cross-examination” and continued that even if the certification was just a machine-generated number, “the comparative reliability of an analyst’s testimonial report drawn from machine-produced data does not overcome the Sixth Amendment bar.” Bullcoming , — U.S. at -, 131 S.Ct. at 2714-15, 180 L.Ed.2d at 621 .

The Court, explaining why surrogate testimony does not satisfy the Confrontation Clause, noted that the testimony “of ²³¹ the kind [the expert] was equipped to give could not convey what [the analyst] knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed.” Bullcoming , — U.S. at -, 131 S.Ct. at 2715, 180 L.Ed.2d at 622 . The Court concluded that “the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess ‘the scientific acumen of Mme. Curie and the veracity of Mother Teresa.’ ” Bullcoming , — U.S. at-, 131 S.Ct. at 2715, 180 L.Ed.2d at 621 (quoting Melendez, 557 U.S. at -, 129 S.Ct. at 2537 n. 6, 174 L.Ed.2d. at 327 n. 6). Accordingly, the Court held that “the [Confrontation] Clause does not tolerate dispensing with confrontation simply because the [trial] court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination,” highlighting the premise that “ ‘the purpose of the rights set forth in [the Sixth] Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair.’ ” Bullcoming , — U.S. at-, 131 S.Ct. at 2716, 180 L.Ed.2d at 622 (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 145 , 126 S.Ct. 2557, 2562 , 165 L.Ed.2d 409, 417 (2006)).

The Supreme Court concluded that “no substitute procedure can cure the violation” and therefore the surrogate testimony at issue in the case violated the Confrontation Clause. Id. Bullcoming clarified the Confrontation Clause analysis regarding forensic testing that began in Melendez. In Melendez, the Court held that drug analysis certificates were testimonial because the contents of the certificates were “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination,’ ” and the statements were “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Melendez, 557 U.S. at-, 129 S.Ct. at 2532 , 174 L.Ed.2d at 321 (citations omitted).

The Court in Melendez thus held that the certificates were inadmissible absent the analysts’ testimony or a showing that they were unavailable. Melen ²³² dez, 557 U.S. at -, 129 S.Ct. at 2532 , 174 L.Ed.2d at 322 . Following Melendez, in Bullcoming the Supreme Court further explained the definition of testimonial as including those statements “made for the purpose of proving a particular fact.” Bullcoming , — U.S. at-, 131 S.Ct. at 2710, 180 L.Ed.2d at 616 . In explaining Melendez, the Court in Bullcoming stated that the report in Melendez “had been created specifically to serve as evidence in a criminal proceeding” and therefore could not be introduced without “offering a live witness competent to testify to the truth of the statements made in the report.” Bullcoming , — U.S. at -, 131 S.Ct. at 2709, 180 L.Ed.2d at 615 .

The Court also stated that such reports are testimonial because they are “created solely for an ‘evidentiary purpose,’ ” ie., “in aid of a police investigation[.]” Bullcoming , — U.S. at -, 131 S.Ct. at 2717, 180 L.Ed.2d at 623 . Although the Supreme Court has not yet answered the specific question of who must testify in cases involving scientific analysis, it has provided guidance as to which people involved with a case are witnesses whose statements will be considered testimony against the accused. The Commonwealth of Massachusetts and the dissent in Melendez argued vigorously that there are certain types of witnesses who are exempt from the requirements of the Confrontation Clause. The majority, however, rejected each of the justifications in turn.

See Melendez, 557 U.S. at-, 129 S.Ct. at 2533-40 , 174 L.Ed.2d at 323-30 . First, the Court rejected the argument that the analysts are not “accusatory” witnesses and are thereby not the type of witnesses covered by the Confrontation Clause. Melendez, 557 U.S. at-, 129 S.Ct. at 2533-34 , 174 L.Ed.2d at 323 . Massachusetts based this argument on the notion that an analyst is not accusatory because his or her testimony is only inculpatory when considered in conjunction with other evidence.

The Court dispelled this theory, stating that “there is not a third category of witnesses \i.e., non-accusatory], helpful to the prosecution, but somehow immune from confrontation.” Melendez, 557 U.S. at-, 129 S.Ct. at 2534 , 174 L.Ed.2d at 323 . The Court read the Clause to ²³³ literally mean that the defendant has the right to be confronted with the witnesses against him or her, and stated that the Clause only “contemplates two classes of witnesses—those against the defendant and those in his favor. The prosecution mvjst produce the former[.]” Id. The Court also rejected a claim that the Confrontation Clause applies only to “conventional” witnesses.

Melendez, 557 U.S. at --•, 129 S.Ct. at 2535 , 174 L.Ed.2d at 324-25 . The dissent in Melendez advanced three reasons why analysts were not conventional witnesses: analysts report near contemporaneous observations (as opposed to relating events observed in the past), analysts do not have personal knowledge of the crime, and analysts’ statements are not the product of interrogation. Id. The Court rejected each argument in turn, stating that none of these contentions had adequate support in case law, and emphasizing that the determining factor is that the analysts were witnesses against the defendant and were responding to a police inquiry, not whether they were “conventional.” Id.

Most importantly, the Court rejected the contention that analysts were somehow neutral witnesses based on the scientific nature of their statements. Melendez, 557 U.S. at ---, 129 S.Ct. at 2536-38 , 174 L.Ed.2d at 325-328 . The Court held that the supposed reliability of scientific evidence is not sufficient grounds to admit such statements absent live testimony. Melendez, 557 U.S. at-, 129 S.Ct. at 2536-37 , 174 L.Ed.2d at 326-27 .

Rather, “there are other ways—and in some cases better ways—to challenge or verify the results of a forensic test. But the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available.” 10 Melendez, ²³⁴ 557 U.S. at-, 129 S.Ct. at 2586 , 174 L.Ed.2d at 326 . The Court also stated, “Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” Melendez, 557 U.S. at-, 129 S.Ct. at 2537 , 174 L.Ed.2d at 326 .

The Court then detailed the deficiencies of forensic evidence, highlighting the need to question the person who actually performed the test. In rejecting the idea of separate classes of witnesses, the Supreme Court emphasized the importance of confronting the person actually responsible for the testimonial statements. Melendez, 557 U.S. at-, 129 S.Ct. at 2537-38 , 174 L.Ed.2d at 326-27 . See United States v. Moore, 651 F.3d 30, 71, 73-74 (D.C.Cir.2011) (applying Bull-coming to support the court’s holding that the testimony at trial of a medical examiner and a forensic chemist regarding autopsy reports and drug analyses, respectively, was testimonial evidence that implicated the Confrontation Clause because the witnesses neither performed nor observed the underlying tests about which the reports concerned, and those reports were admitted into evidence).

Prior to Bullcoming and Melendez, this Court endorsed a purpose-driven test when we held that the proper test for determining if a statement is testimonial focuses on whether the statement was “made under circumstances that would lead an objective declarant reasonably to believe that the statement would be available for use at a later trial.” State v. Snowden, 385 Md. 64, 83 , 867 A.2d 314, 325 (2005). We evaluated a Confrontation Clause challenge in Rollins v. State, 392 Md. 455, 496 , 897 A.2d 821, 845-46 (2006), and held that the autopsy reports at issue were business records and were not testimonial based on relevant statutory requirements. We stated that the Supreme Court “indicated in Crawford that the hearsay exceptions, such as the business records exception, can exempt evidence from scrutiny under the Confrontation Clause.” Rollins, 392 Md. at 479 , 897 A.2d at 835 . Subsequent to our opinion in Rollins , however, the ²³⁵ Supreme Court’s holding in Melendez undercut this line of reasoning, as it specifically stated that the business records exception would not permit an otherwise inadmissible testimonial statement to be admitted.

Melendez, 557 U.S. at-, 129 S.Ct. at 2539-40 , 174 L.Ed.2d at 329-30 . The Supreme Court pointed out that although documents kept in the regular course of business are ordinarily admitted into evidence under the hearsay exception, this will not be the case “if the regularly conducted business activity is the production of evidence for use at trial.” Melendez, 557 U.S. at-, 129 S.Ct. at 2538 , 174 L.Ed.2d at 328 . The Court further related this distinction to police reports, stating that “[t]he analysts’ certificates—like police reports generated by law enforcement officials—do not qualify as business or public records[.]” Id. Therefore, the testimonial nature of a statement must be determined under the guidelines set forth in Crawford, Melendez, and Bullcoming , and whether the statement falls under a hearsay exception is irrelevant.

For example, in Rollins , we held that the autopsy reports qualified under the business records exception to the hearsay rule because the records were kept “during the regularly conducted business activity of the Office of the Chief Medical Examiner,” as sanctioned by statute. 11 Rollins, 392 Md. at 482-83 , 897 A.2d at 837 . We also stated that, although an autopsy report “might eventually be used in a criminal trial, [the report] was not created for that express purpose, and was statutorily required to be determined by the medical examiner.... ” Rollins, 392 Md. at 484 , 897 A.2d at 838 . Under Melendez and Bullcoming , however, it is now clear that the “express purpose” of the statement need not be ²³⁶ for later use at trial, but instead, any statement that was “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial’ ” is considered to be testimonial. Melendez, 557 U.S. at -, 129 S.Ct. at 2532 , 174 L.Ed.2d at 321 (quoting Crawford, 541 U.S. at 52 , 124 S.Ct. at 1364 , 158 L.Ed.2d at 193 ).

The statute under which autopsy reports are completed, Md.Code (1982, 2009 Repl.Vol.), § 5-311 of the Health-General Article, clearly contemplates that the declarant in an autopsy report, the medical examiner or assistant, would reasonably expect the report to be used prosecutorially in the case of any non-accidental or assisted death. Subsection (c) of the statute itself requires the medical examiner to deliver a copy of the report to the State’s Attorney when the “medical examiner considers further investigation advisable.” Consequently, to the extent Rollins was undermined by Melendez with regard to the business records exception, Rollins is no longer good law. C. Confrontation Clause Analysis as Applied to DNA Evidence When reviewing a case under the Confrontation Clause, the following principle must be followed: a testimonial statement may not be introduced into evidence, through admission or testimony, without the in-court testimony of the declarant. A court must first identify what statements are being offered as evidence in a criminal trial.

Then, a court must determine whether the statements are testimonial in nature. Unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination, when “an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial,” and its admission invokes the Confrontation Clause. Bullcoming , — U.S. at -, 131 S.Ct. at 2713, 180 L.Ed.2d at 619 . This is because “the prosecution may not introduce such [evidence] without offering a live witness competent to testify to the truth of the statements made in the report.” Bullcoming , — U.S. at -, 131 S.Ct. at 2709, 180 L.Ed.2d at 615 .

In the case of ²³⁷ DNA testing, the DNA profile is a statement of the analyst that essentially says: “This is the DNA profile for this person.” If the DNA profile is inputted into CODIS and a match is obtained, then that match is derived from the statement of the analyst. In light of Bullcoming and Melendez, it is inescapable that the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing or the supervisor who observed the analyst perform the DNA testing must testify in order to satisfy the Confrontation Clause, unless the witness is unavailable and the defense had a prior opportunity to cross-examine the witness. See Bullcoming, — U.S. at-, 131 S.Ct. at 2713-17, 180 L.Ed.2d at 619-24 . We reach this conclusion for several reasons.

First, the DNA profile and report are made for the primary purpose of establishing facts relevant to a later prosecution, and an objective analyst would understand that the statements will be used in a later trial. Stated differently, the analyst who generated the report must have known that the purpose of the testing was ultimately to establish the perpetrator’s identity through DNA evidence. Second, the testing results, and the resulting DNA profile, can be considered an affidavit because they are the functional equivalent of in-court testimony, offered to establish prima facie evidence of guilt, which constitutes formalized testimonial material. Third, the statements produced by DNA testing are testimony under Crawford because the statements are solemn declarations made to prove a fact, namely the identification of the sample and possible match.

Finally, the analyst who performs the DNA analysis is a witness for the purpose of the Confrontation Clause because the DNA profile created is a representation “relating to past events and human actions not revealed in raw, machine-produced data[.]” Bullcoming , — U.S. at —, 131 S.Ct. at 2714, 180 L.Ed.2d at 621 . Therefore, the DNA profiles created by lab analysts, the reports they produce, and the conclusions or opinions they form contain testimonial ²³⁸ statements that are subject to the requirements of the Confrontation Clause. 12 ²³⁹ In reaching this holding, we find support in the jurisprudence of the District of Columbia Court of Appeals, which has determined repeatedly that DNA evidence is comprised of the conclusions, and therefore the testimonial statements, of the analysts who performed the testing, and is thus subject to the Confrontation Clause. Gardner v. United States, 999 A.2d 55, 58-59 (D.C.2010); Veney v. United States, 936 A.2d 811, 831 (D.C.2007); Roberts v. United States, 916 A.2d 922, 938 (D.C. 2007). In each of these cases, an expert testified as to his or her own “conclusions” based on DNA testing results, despite the fact that the expert took no part in the actual testing.

Roberts is particularly instructive because, similar to the case at bar, the defendant in Roberts argued that the expert relied on the conclusions of others in forming his opinion, while the government countered that the expert performed an independent analysis based on the raw data produced by the analysts, and that the admission of the evidence was valid under Federal Rule of Evidence 703. Roberts, 916 A.2d at 937-38 . The facts in Roberts were as follows: Dr. Baechtel was not the original examiner; that job had been performed by Dr. Maribeth Donovan, who no longer worked for the FBI and was not called as a witness by either side. As Dr. Baechtel acknowledged, he had not done the original “hands-on work” in the case and in a ²⁴⁰ sense was “testifying in the place of Dr. Donovan.” At the same time, Dr. Baechtel testified that the opinions he was testifying to were his own.

He explained that all FBI DNA reports are subjected to two levels of review before being issued. In the first or more intensive review, the original examiner’s report is given to a second examiner who “sit[s] down with that information and go[es] through it as if it was his or her own case.” That was Dr. Baeehtel’s role here. He took “the case ... as having been given to [him]” without regard to “what the actual examiner [had] decided.” He went “through it as if it’s my case ... and [came] to [his own] conclusions and ... interpretation,” only then comparing them to the first examiner’s interpretation. After this “technical” or “peer review” was complete, he transmitted the report, which he signed only because he agreed with its conclusions, to the unit chief for a final “administrative review.” Id.

Despite the government’s contention that Dr. Baechtel formed his own independent conclusion, the court held that “[o]ur review of the record confirms that, at least in part, Dr. Baeehtel’s opinion that appellant could not be excluded as a contributor to the DNA evidence rested on the conclusions reached by the team that did the actual laboratory analysis and set forth those conclusions in the report he reviewed.” Roberts , 916 A.2d at 9B8. Further, the court explained that there is “no room for dispute that the conclusions of FBI laboratory scientists ... [that were] admitted as substantive evidence at trial are ‘testimonial’ under Crawford, .... ” Id. This holding was affirmed in Gardner , in which the District of Columbia Court of Appeals stated, “In light of the fact that the conclusions of FBI laboratory scientists have been indisputably held to be ‘testimonial,’ the Roberts court concluded that the appellant’s Sixth Amendment Confrontation rights could have been satisfied only by cross-examination of those scientists who actually conducted the testing.” Gardner, 999 A.2d at 61 . The court also emphasized that, just as in Roberts and Veney , the “experts [in Gardner ] quoted and directly referred to the conclusions of the lab analysts” and further ²⁴¹ that the experts “repeatedly read from and directly referenced the testing results and conclusions of the analysts who conducted [the] test.” Gardner, 999 A.2d at 61 , 61 n. 12.

Importantly, in addressing whether Fed.R.Evid. 703 13 survived Crawford, the court stated, “[T]hat determination does not help the government in this case, where the experts did not simply rely upon inadmissible hearsay in forming their expert opinions. Rather, here, the experts repeatedly directly referred to the inadmissible hearsay evidence and thus used it to prove the ‘truth of the matter asserted.’ ” Gardner, 999 A.2d at 60 n. 11 (citation omitted). 14 In Veney , “the trial court ²⁴² admitted Dr. Luttman’s testimony, which was based on FBI laboratory reports, while neither the serologist who tested the items for blood and semen, nor the PCR/STR technician who extracted and amplified the samples from these items, testified at trial.” Veney, 936 A.2d at 831 . The government emphasized that “Dr. Luttman was the supervisory analyst, she was the only member of the three-person DNA team in this case who interpreted the DNA test results, and the only one who prepared a report based on those results,” and further that “Dr. Luttman based her interpretation of the DNA profiles on her reading of a computer-generated graph, called an electropherogram, that was produced by the PCR/ STR machine.” Id. The court concluded: Dr. Luttman made references to the serology tests and the data produced by operation of a DNA-typing instrument, both carried out by other scientists on the team that she managed, which indicated that the DNA in semen stains found on S.P.’s clothing matched appellant’s DNA.

These test results, therefore, arguably were offered as substantive evidence. ²⁴³ Id. 15 In evaluating a Confrontation Clause claim of this sort, involving surrogate testimony and scientific testing, we must address the continued validity and application of Md. Rule 5-703. We shall hold that, because of the Confrontation Clause, an expert may not render as true the testimonial statements or opinions of others through his or her testimony. Although the Rule allows for an expert to base his or her opinion on inadmissible evidence, to the extent that Md. Rule 5-703 offends the Confrontation Clause, such testimony will not be admissible. As the United States Supreme Court stated in Crawford, “[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ ” Crawford, 541 U.S. at 61 , 124 S.Ct. at 1370 , 158 L.Ed.2d at 199 .

Specifically, if the inadmissible evidence sought to be introduced is comprised of the conclusions of other analysts, then the Confrontation Clause prohibits the admission of such testimonial statements through the testimony of an expert who did not observe or participate in the testing. Conversely, if the evidence relied upon by an expert in his or her testimony assembles nontestimonial information from one or more sources, and then draws a conclusion based on that information, then the expert is not merely serving as a surrogate to convey the conclusions of other analysts, but rather, is forming ²⁴⁴ and testifying as to the expert’s own independent opinion. In such a case, Md. Rule 5-703, as applied, would not appear to offend the Confrontation Clause. The key distinction in this type of case is whether the testifying expert relies on raw data in forming his or her conclusions, as opposed to relying on the conclusions and opinions of others when testifying.

As the United States Supreme Court made clear in Bullcoming , a certification is more than “machine-produced data,” and instead constitutes representations “relating to past events and human actions.” Bullcoming , — U.S. at -, 131 S.Ct. at 2714, 180 L.Ed.2d at 621 . This is important because the testifying witness must be able to convey “what [the analyst] knew or observed about the events his certification concerned, ie., the particular test and testing process he employed,” which cannot be achieved through surrogate testimony. Bullcoming , — U.S. at -, 131 S.Ct. at 2715, 180 L.Ed.2d at 622 . Further, “surrogate testimony [cannot] expose any lapses or lies on the certifying analyst’s part.” Id; see also Melendez, 557 U.S. at -, 129 S.Ct. at 2537 , 174 L.Ed.2d at 326 (stating that “[confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well”).

Based on this explanation, we view the term “raw data” in the context of a Md. Rule 5-703 inquiry to be limited to the data or materials which have not yet been subjected to scientific testing. Therefore, we hold, in accordance with Bullcoming , that the testimonial statement of the analyst is comprised of more than just the results of the testing. Instead, the testimony includes the underlying procedure or process because the “methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination.” Melendez, 557 U.S. at-, 129 S.Ct. at 2537 , 174 L.Ed.2d at 327 . Accordingly, we agree with the District of Columbia Court of Appeals that, although Dr. Luttman used the data to inform her testimony, the data itself was both substantive and testimonial evidence, and therefore the analysts who actually performed the testing were also ²⁴⁵ required to testify in order to satisfy Derr’s right to confrontation. 16 Turning specifically to the case mb judice, there are three pieces of evidence and related testimony that implicate the Confrontation Clause: (1) the serological report from 1985 in which the biologist identified sperm and semen on genital and vaginal swabs taken from the victim; (2) a DNA profile generated in 2002 by Dr. Donovan when the sample was submitted to the FBI for DNA testing, which provided a match between the profile generated from the sample taken from the victim at the time of the crime and Derr’s DNA profile stored in CODIS; and (3) a DNA profile created from a new sample of Derr’s DNA in 2004.

Similar to the prosecution in Bullcoming , the State in this case employed surrogate testimony, calling “another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test[s]” to testify as to the forensic examinations and results, providing evidence to establish Derr’s guilt. This scientific evidence was presented through the testimony of Dr. Jennifer Luttman, an FBI forensic examiner who supervised the laboratory work of biologists on her “team.” Dr. Luttman took no part in the 1985 serological testing or the 2002 DNA testing. She did not perform the actual bench work with regard to the 2004 test, nor is there any indication that she actually observed the biologists per ²⁴⁶ form the test, notwithstanding the fact that the test was conducted by her team and she reviewed the results. Dr. Luttman therefore acted as a surrogate for the analysts who actually performed the tests, thereby creating a Confrontation issue because the testimonial witnesses involved in the process were not available for cross-examination.

Derr argues that he was denied “the opportunity to confront and cross-examine the analysts who performed the scientific testing of the biological evidence that was the foundation for the DNA ‘match’ evidence[.]” He continues that “testimonial statements (the opinion of the serology examiner, and the DNA test results) of witnesses (the serology examiner and the DNA analyst) who did not appear at trial were introduced against Mr. Derr” and therefore “[t]he admission of these testimonial statements violated Mr. Derr’s Confrontation Clause right....” Derr maintains that the testing is a “highly analytical and complex scientific test that involved the exercise of judgment and interpretation in anticipation of a criminal prosecution.” Derr argues that by not allowing him to confront the analysts, “the jury was [led] to believe that the match itself established the reliability of the underlying serological examination and DNA analysis____” In addition, Derr asserts that Dr. Luttman’s “forensic testimony served the dual purpose of providing the sole identification evidence of appellant Norman Derr as the perpetrator of a rape and sexual assault, while simultaneously shielding the forensic testing from any effective cross-examination.” Further, Derr claims that the State never “explains precisely how Mr. Derr—or any other criminal defendant confronted with scientific evidence—could meaningfully challenge the actual conduct of the forensic testing, when the results of the testing (whether in the form of opinions or ‘raw5 data) are introduced into evidence through surrogate forensic testimony.” Relying on Melendez, Derr asserts that “[allowing expert witnesses ... to testify about forensic tests performed by third party analysts strips defendants of the opportunity to probe the analyst’s ‘honesty, proficiency, and methodology,’ thus making it impossible to “weed out’ fraudulent analysts as well as ²⁴⁷ incompetent ones.... ” Derr concludes that “[t]he opinion of the serologist, and the DNA test results, are testimonial under Crawford because they were made under circumstances that would lead an objective analyst reasonably to believe the statements would be available for use at a later trial” and further that “¡tjhe information about the perpetrator’s DNA profile conveys in a graphic form precisely what the analyst would be expected to testify about on direct examination at trial.” The State bases much of its argument on Md. Rule 5-703, maintaining that the DNA results were not testimonial. The State characterizes the DNA results as “raw data” and states that the data was not introduced for the truth of the matter asserted, but rather, as the basis of Dr. Luttman’s opinion, and therefore the data is not hearsay. The State also argues that data is not testimonial hearsay because it is not a statement made by a person. The State then argues that even if the information is hearsay, it is not testimonial under Crawford, because it “is not an affidavit, a certified record, a deposition, or anything else intended to be a ‘weaker substitute for trial testimony.’ ” The State concludes that “experts are entitled to base opinions on data generated by others,” and maintains that Dr. Luttman delivered her own opinions and conclusions in her testimony.

We shall hold that the trial judge erred in admitting the 1985 serological test, and the 2002 and 2004 DNA test results because the reports were testimonial statements and their admission through the testimony of Dr. Luttman violated Derr’s right under the Confrontation Clause. Specifically, we address the results of the 1985 serological test. Dr. Luttman testified regarding the opinion and conclusion of the serologist that semen and sperm were present on the swabs. Dr. Luttman testified that a serology examiner at the FBI in 1985 performed the test by viewing the sample under a microscope and concluding that the cells he viewed were sperm cells.

The actual test and the procedures used are unknown. Dr. Luttman knew only that the serological examiner was an FBI ²⁴⁸ agent named “Babiak”; she did not know whether Babiak did the bench work (ie., the testing, calculations, and reporting), what his credentials were, how long he worked at the FBI, his proficiency ratings, or any other information regarding who actually performed the bench work. Dr. Luttman knew only that Babiak interpreted the results of testing performed by a biologist, who analyzed the serology sample. Someone wrote a report analyzing the serology sample and an agent named Babiak signed that report.

Specifically, the following exchange took place during a bench conference regarding the admissibility of the 1985 serology evidence: Defense Attorney: [The report] contains his [ie., the serologist’s] conclusions with regard to his interpretations of the tests, right? Luttman: Those notes contain the biologists’s [sic] results and then the examiner took those results and drew their conclusions, just like I do today. Defense Attorney: All right. But I thought you said you didn’t know if Babiak [the serologist] was a biologist.

Luttman: No. Babiak was a forensic examiner, forensic serology examiner. Defense Attorney: Okay. So who was the biologist then? Luttman: I do not know who the biologist was.

Defense Attorney: So there’s actually more than one person involved in this process then? Luttman: Yes. Just like it’s current practice now. There was a biologist and an examiner who did the work.

And I do no[t] know in 1985 who the biologist was. Defense Attorney: And at that time in '85 were lab examiners special agents? Luttman: Yes they were. Babiak was a special agent.

Defense Attorney: So he was actually a sworn law enforcement official, right? Luttman: That’s correct. Defense Attorney: And I guess it’s pretty obvious that he knew he was examining a sex crime kit, right? ²⁴⁹ Luttman: That’s correct. He did not do the actual bench work a biologist did, but he knew.

Defense Attorney: So he was, the FBI officer was doing the interpretation of whatever bench work was done? Luttman: Right. The State then asked Dr. Luttman about notations on the report that was admitted into evidence. Dr. Luttman said, “They were by the person who did the bench work.

And then the report was written by Babiak, that has the conclusions.” Finally, in her testimony Dr. Luttman relied on the serological examiner’s conclusion that sperm cells were present, and she stated that it is the “FBI’s policy not to repeat tests where ... we have reports from laboratory results.” Ultimately, Dr. Luttman conceded that she could not form an independent basis for her conclusions without trusting the report. 17 Accordingly, it is clear that Dr. Luttman did not testify as to her own independent conclusions, but rather, relied on the conclusions of Babiak, which in turn were based on the lab work of an unknown biologist. Furthermore, those conclusions were clearly prepared for possible later use at trial because the serologist was a sworn law enforcement officer engaging in a criminal investigation. 18 Therefore, the findings contained in ²⁵⁰ the serological report indicating the presence of sperm and semen are testimonial because the report contains a solemn declaration of fact, reflecting the functional equivalent of in-court testimony, and the report was prepared for later use at trial. See Melendez, 557 U.S. at -, 129 S.Ct. at 2532 , 174 L.Ed.2d at 321 ; see also Bullcoming, — U.S. at -, 131 S.Ct. at 2712, 180 L.Ed.2d at 619 . Therefore, the trial court erred in admitting the serology report and Dr. Luttman’s testimony regarding the report.

As to the DNA profile created in 2002, the trial judge erred in concluding that, although Dr. Donovan’s report was testimonial, the underlying data was not. The DNA profile was based on the test performed by Dr. Donovan, an FBI examiner who did not testify at trial, and it provided the basis for the match between the unknown sample and the profile in the CODIS database. Dr. Luttman testified as to the methodology used and the results obtained from the 2002 test, and she also testified that neither she nor her team were involved in the testing. When asked whether she was involved in the 2002 test, Dr. Luttman responded, “No. But I interpreted those tests that were done in 2002.” When asked