Leidig v. State

James Matthew Leidig v. State of Maryland, No. 19, September Term, 2020. Opinion by Biran, J. CONSTITUTIONAL LAW – SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION – ARTICLE 21 OF THE MARYLAND DECLARATION OF RIGHTS – RIGHT OF ACCUSED TO CONFRONT WITNESSES – FORENSIC EVIDENCE – The Confrontation Clause of the Sixth Amendment to the United States Constitution provides a criminal defendant with the right “to be confronted with the witnesses against him.” Article 21 of the Maryland Declaration of Rights similarly provides that, “[i]n 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.” In Williams v. Illinois, 567 U.S. 50 (2012), the Supreme Court considered whether a laboratory report containing the results of DNA analysis was “testimonial” within the meaning of Crawford v. Washington, 541 U.S. 36 (2004). Williams resulted in a fractured decision, revealing that there was not a majority position on the Supreme Court concerning the minimum requirements for a forensic test report to qualify as testimonial for purposes of the Sixth Amendment. The Court of Appeals held that Article 21 provides greater protection than the Sixth Amendment, as currently interpreted by the Supreme Court, with respect to what qualifies as a testimonial document, thereby triggering the rights of confrontation and cross- examination.

The Court held that, under Article 21, a scientific report is “testimonial” if the author of the report reasonably would have understood that the primary purpose for the creation of the report was to establish or prove past events potentially relevant to later criminal prosecution. In this case, the trial court admitted a DNA report into evidence at Petitioner’s trial without requiring the author of the report to be available for cross-examination. The Court held that this violated Petitioner’s rights to confrontation and cross-examination under Article 21. Circuit Court for Washington County Case No. C-21-CR-19-000099 Argued: December 3, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 19 September Term, 2020 JAMES MATTHEW LEIDIG v. STATE OF MARYLAND Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ.

Opinion by Biran, J. Watts, J., concurs. Filed: August 5, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-08-16 13:36-04:00 Suzanne C. Johnson, Clerk The Confrontation Clause of the Sixth Amendment to the United States Constitution provides a criminal defendant with the right “to be confronted with the witnesses against him.” U.S. Const. amend.

VI

Article 21 of the Maryland Declaration of Rights, which predates the Sixth Amendment by more than a decade, similarly provides that, “[i]n 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.” Md. Decl. of Rts. art. 21. For the past several decades, this Court has read the Sixth Amendment and Article 21 as providing equivalent confrontation rights to criminal defendants in Maryland. In this case, we consider whether to adhere to that approach. In 2004, the Supreme Court decided the groundbreaking case of Crawford v. Washington, 541 U.S. 36 (2004), in which the Court held that an out-of-court “testimonial statement” of a witness who does not testify at trial is admissible under the Confrontation Clause of the Sixth Amendment “only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine.” Id. at 59 .

Crawford involved a tape-recorded statement to police by a witness in which she described a stabbing. There was no dispute that the witness’s statement was “testimonial.” In a trio of cases over the next decade, the Supreme Court considered the applicability of Crawford to forensic test results. The last of those cases, Williams v. Illinois, 567 U.S. 50 (2012), resulted in a fractured decision, and revealed that there was not a majority position on the Supreme Court concerning the minimum requirements for a forensic test report to qualify as testimonial. In the nine years that have passed since the Court decided Williams, the lower federal courts and many state appellate courts (including this Court) have struggled to apply Williams to various fact patterns involving forensic reports.

The appeal presently before us illuminates the difficulties inherent in applying the Supreme Court’s confrontation jurisprudence in cases involving scientific evidence. In the Circuit Court for Washington County, Petitioner James Matthew Leidig was indicted by a grand jury on charges of first-, third-, and fourth-degree burglary, theft, and malicious destruction of property. A police officer who responded to the scene of the reported burglary discovered broken glass around the window that appeared to be the burglar’s point of entry. The officer swabbed what he suspected was the burglar’s blood from the window frame and a curtain.

Molly Rollo, a forensic scientist with the Maryland State Police, subsequently conducted a serological examination and deoxyribonucleic acid (DNA) analysis of the samples. She then produced a report in which she concluded that blood was indicated on the swabs, and that the DNA source of the blood samples taken from both the window frame and the curtain was one male contributor. Ms. Rollo’s report provided a DNA profile for that male contributor. A subsequent DNA records database search identified Leidig as a possible match.

At Leidig’s trial, the State did not call Ms. Rollo as a witness. Rather, the State presented the testimony of a different forensic scientist, Tiffany Keener. Ms. Keener had analyzed a reference sample collected from Leidig after he became a suspect in the burglary, and then had compared the DNA profile she generated from that known sample to the DNA profile that Ms. Rollo had generated from the forensic samples. Over Leidig’s objection, the trial court allowed the State to introduce Ms. Rollo’s report into evidence, and to elicit Ms. Keener’s expert opinion that Leidig’s known DNA profile matched the 2 DNA profile that had been generated from the samples taken at the scene of the crime.

The matching DNA profiles constituted the only evidence that linked Leidig to the burglary. The jury convicted Leidig of third- and fourth-degree burglary and malicious destruction of property having a value of less than $1,000. The Court of Special Appeals affirmed Leidig’s convictions, holding that the admission of Ms. Rollo’s report into evidence did not violate Leidig’s rights under the Sixth Amendment and Article 21. As discussed below, it is unclear how the Supreme Court would decide the Sixth Amendment issue in this case.

Assuming without deciding that Ms. Rollo’s report is not “testimonial” for purposes of a Sixth Amendment confrontation analysis, we conclude that a different standard of what is testimonial applies under Article 21. We hold that, under Article 21, a scientific report is “testimonial” if the author of the report reasonably would have understood that the primary purpose for the creation of the report was to establish or prove past events potentially relevant to later criminal prosecution. Under that standard, the trial court’s admission of the forensic test results in this case, without giving Leidig the opportunity to cross-examine Ms. Rollo, violated Article 21. 3 I Background A. The Investigation of the Burglary Shortly after 2:00 p.m. on September 1, 2016, Sergeant David Haugh1 of the Washington County Sheriff’s Department responded to a reported burglary at the home of Ralph and Rebecca Brown in Hagerstown, Maryland. When Sergeant Haugh arrived, he met with the Browns and learned that neither of them was home during the alleged burglary.

The Browns told Sergeant Haugh that, after they returned home, they discovered that someone had forced entry into their home through one of their living room windows and had stolen Mr. Brown’s Smith & Wesson 38 Special revolver and its holster. Following his discussion with the Browns, Sergeant Haugh identified a window that appeared to have been forced inward and concluded it was the burglar’s point of entry. The window was adorned with white curtains. Sergeant Haugh discovered fragments of glass on the floor below the window.

Upon closer inspection of the window, Sergeant Haugh noticed a dark reddish substance on the window’s frame and on a curtain. He suspected that the substance might be blood. After confirming that neither of the Browns had cut themselves, Sergeant Haugh swabbed the window frame and the curtain two times each. On September 2, 2016, Sergeant Haugh placed the two swabs of suspected blood from the 1 On the date of the burglary, Sergeant Haugh held the rank of Corporal.

By the time Leidig’s case went to trial, Haugh had been promoted to Sergeant; we shall refer to him as Sergeant Haugh. 4 window frame and the two swabs of suspected blood from the curtain into the property room at the Washington County Sheriff’s Office. B. The Forensic DNA Analysis: Molly Rollo’s Report On September 7, 2016, the swabs were sent to the Maryland State Police Forensic Sciences Division in Pikesville for DNA analysis and possible entry in the Combined DNA Index System (“CODIS”).2 At the Pikesville Laboratory in the Biology Unit, Molly Rollo conducted a serological and DNA analysis of the swabs.3 She prepared a report detailing her analysis, results, and conclusions. This document – titled a “LABORATORY REPORT” – was addressed to then-Corporal Haugh and listed the “requestor’s” case number as well as the laboratory’s file number. The report identified the “[v]ictim” as Mr. Brown and the “[s]uspect” as “unknown.” The report contained the following prefatory language: This examination has been made with the understanding that the evidence is connected with an official investigation of a criminal matter and that the Laboratory Report will be used for official purposes only related to the investigation or a subsequent criminal prosecution.

This report contains the conclusions, opinions and interpretations of the examiner whose signature appears on the report. 2 CODIS is a system administered and operated by the Federal Bureau of Investigation (FBI) that allows federal, state, and local forensic DNA laboratories to store and exchange DNA records. See FBI, Combined DNA Index System (CODIS), available at https://perma.cc/RNB8-96SA. It was established by Congress “to assist in providing investigative leads for law enforcement in cases where no suspect has yet been identified.” FBI, Frequently Asked Questions on CODIS and NDIS: CODIS DNA Databases, no. 4, available at https://perma.cc/VTV8-PVPB (“CODIS/NDIS FAQ”). 3 For a discussion of DNA analysis in the context of DNA evidence, also known as DNA profiling, see Young v. State, 388 Md. 99, 106-12 (2005). 5 The first section of the report, titled “Results and Conclusions of Examination/Analysis,” began with the following statement of validation4: The deoxyribonucleic acid (DNA) results reported below were determined by procedures which have been validated according to the Federal Bureau of Investigation’s Quality Assurance Standards for Forensic DNA Testing Laboratories. The results and conclusions section of the report stated that “[b]lood was indicated” on exhibit 1 (swabs of the window frame) and exhibit 2 (swabs of the living room curtain) and that both exhibits “were forwarded for DNA extraction and quantitation.” The next section of the report provided “Quantitation Results.” In that section, Ms. Rollo reported that “[h]uman and male DNA was detected” in both exhibits and that the exhibits “were processed for autosomal short tandem repeat (STR) DNA analysis and were amplified and typed at sixteen genetic loci.” The “Autosomal STR Typing Results and Conclusions” subsection included a two-column table listing 16 loci with one or two alleles at each locus for both exhibits, along with a conclusion that “[a] DNA profile from one male contributor was obtained.” In the “Notes” section of the report, Ms. Rollo wrote that “[t]he DNA profile from the swabs of the window frame … will be entered into the National DNA Index System 4 To be admissible under the applicable Maryland statute, a forensic analysis report that includes a DNA profile must contain a statement of validation.

See Md. Code Ann., Cts. & Jud. Proc. § 10-915 (b) (2020 Repl. Vol.). 6 (NDIS)[5, 6] database.” The report was dated October 14, 2016 and was signed by Ms. Rollo as the “Examiner.” The handwritten initials of three individuals, “TK[,]” “LAM[,]” and 5 NDIS is the national-level component of CODIS. See CODIS/NDIS FAQ, at no. 10.

It allows participating laboratories in all 50 states, the District of Columbia, the federal government, the U.S. Army Criminal Investigation Laboratory, and Puerto Rico to maintain and exchange DNA records. Id. 6 DNA data submitted to NDIS must meet the following requirements: 1. The DNA data must be generated in accordance with the FBI Director’s Quality Assurance Standards; 2. The DNA data must be generated by a laboratory that is accredited by an approved accrediting agency; 3.

The DNA data must be generated by a laboratory that undergoes an external audit every two years to demonstrate compliance with the FBI Director’s Quality Assurance Standards; 4. The DNA data must be one of the categories of data acceptable at NDIS, such as convicted offender, arrestee, detainee, legal, forensic (casework), unidentified human remains, missing person, or a relative of missing person; 5. The DNA data must meet minimum CODIS Core Loci requirements for the specimen category; 6. The DNA Polymerase Chain Reaction (PCR) data must be generated using PCR accepted kits; and 7.

Participating laboratories must have and follow expungement procedures in accordance with federal law. CODIS/NDIS FAQ, at no. 18. Ms. Rollo’s report listed the 13 loci that comprised the Original CODIS Core Loci (in effect from October 1998 until December 31, 2016), see id. at no. 19, in the STR typing results table, in addition to three others: D2S1338, D19S433, and amelogenin. The amelogenin gene is tested for gender identification.

See National Institute of Standards and Technology, U.S. Department of Commerce, Amelogenin, available at https://perma.cc/4AMA-CBXN. Ms. Rollo reported “XY” results for the amelogenin tests conducted on both exhibits, indicating a male contributor. See id. 7 “MR,” appeared on the bottom of the first page of the report, and “TK” and “LAM” also appeared on the second page of the report below Ms. Rollo’s signature.7 Sergeant Haugh received Ms. Rollo’s report on October 31, 2016. On November 4, 2016, Sergeant Haugh learned that there was a “DNA hit” in NDIS on the DNA profile generated by Ms. Rollo.8 The hit revealed Leidig, who had a criminal record in Pennsylvania, as a potential match in the system.

Subsequently, Sergeant Haugh obtained a search warrant to collect a DNA reference sample from Leidig.9 C. The Known Biological Sample Analysis: Tiffany Keener’s Report On November 15, 2016, Sergeant Haugh obtained a reference sample from Leidig using two buccal (cheek) swabs. Those swabs were submitted to the Pikesville Laboratory for analysis on March 15, 2017. In the Biology Unit, Tiffany Keener examined Leidig’s known sample. Ms. Keener produced a report that was substantially similar in form to Ms. Rollo’s report.

It included the same case information contained in Ms. Rollo’s report, but named Leidig as the suspect. It began with the same prefatory acknowledgement (that the 7 A copy of Ms. Rollo’s report is included as Appendix A to this opinion. 8 CODIS/NDIS compares “a target DNA record against the DNA records contained in the database.” CODIS/NDIS FAQ, at no. 3. A comparison in CODIS may reveal two types of hits: an “offender hit” or a “forensic hit.” Id. at no. 4. An offender hit is one where the identity of a potential suspect is revealed.

Id. A forensic hit links the DNA profiles from two or more crime scenes, but the DNA source remains unknown. Id. 9 A DNA database match “may only be used as probable cause and is not admissible at trial unless confirmed by additional testing.” Md. Code Ann., Pub. Safety (“PS”) § 2-510 (2018 Repl.

Vol.); see Allen v. State, 440 Md. 643, 676 (2014) (“[PS § 2-510] requires that once a match is determined, a sample from the individual identified in the DNA data base must be obtained and analyzed to compare it to the sample obtained from the crime scene.”). 8 report would be used for “official purposes only related to the investigation or a subsequent criminal prosecution” and that the report contained the examiner’s “conclusions, opinions, and interpretations”) with one addition: “This report is supplemental to the original Maryland State Police report dated October 14, 2016.” Like Ms. Rollo’s report, Ms. Keener’s “Results and Conclusions of Examination/Analysis” section began by stating that the DNA results set forth in the report were “determined by procedures which have been validated according to the Federal Bureau of Investigation’s Quality Assurance Standards for Forensic DNA Testing Laboratories.” Next, the report identified the sample being tested as a “[k]nown oral standard from James Leidig,” which Ms. Keener referred to as “exhibit 3” (to differentiate it from the two exhibits Ms. Rollo had previously analyzed). The report further stated that exhibit 3 “was forwarded for DNA extraction and quantitation.” The next section of the report provided the “Quantitation Results” for Leidig’s known sample. In that section, Ms. Keener reported that “[h]uman and male DNA was detected” in exhibit 3, and that exhibit 3 “was processed for autosomal short tandem repeat (STR) DNA analysis and was amplified and typed at twenty-four loci.” The autosomal STR typing results table in Ms. Keener’s report contained three columns (in contrast to the two-column table from Ms. Rollo’s report). The first two columns reiterated the typing results for the two exhibits Ms. Rollo had tested.

The new third column was captioned “James Leidig” and it identified the same alleles at each locus that had been tested by Ms. Rollo. 9 Ms. Keener recounted that the swabs of the window frame and the living room curtain had generated a DNA profile from one male contributor. Ms. Keener then concluded that Leidig’s DNA profile matches this DNA profile at all autosomal loci tested except D2S441, D22S1045, SE33, D10S1248, D1S1656 and D12S391.[10] The probabilities of selecting an unrelated individual at random having this DNA profile are approximately: Population Database Frequency US Caucasian 1 in 9.7 Sextillion (9.7 x 1021) African American 1 in 3.0 Septillion (3.0 x 1024) US Hispanic 1 in 5.0 Sextillion (5.0 x 1021) Because the rarity of this profile exceeds 1 in 333 billion, it is unreasonable to conclude that an unrelated individual would be the source of this DNA profile. The report was dated April 17, 2017 and signed by Ms. Keener as the “Examiner.” The initials of three individuals (including “T.K.”) appeared on the bottom of the first two pages of the report and two sets of initials (not including “T.K.”) appeared on the third page of the report below Ms. Keener’s signature.11 10 The column for exhibit 3 reported test results for eight additional loci that were not included in Ms. Rollo’s report. Thus, in Ms. Keener’s report, the columns for exhibits 1 and 2 stated that those eight loci were “[n]ot [t]ested.” Ms. Keener explained at trial that, between the time Ms. Rollo tested the forensic samples and the time that Ms. Keener tested Leidig’s known sample, the Pikesville Laboratory began using a different test kit that tested additional loci.

We note that, as of January 1, 2017, the CODIS Core Loci added seven new loci. See CODIS/NDIS FAQ, at no. 19. Ms. Keener reported test results for Leidig’s known sample as to the seven new CODIS Core Loci, as well as for amelogenin, yindel (another sex marker), and two other loci not included in the CODIS Core Loci. 11 A copy of Ms. Keener’s report is included as Appendix B to this opinion. 10 D. The Trial Leidig’s trial went forward on March 12, 2019 in the Circuit Court for Washington County. During the State’s case-in-chief, four witnesses testified: Mr. Brown, Mrs. Brown, Sergeant Haugh, and Ms. Keener.

Although the State subpoenaed Ms. Rollo, the State did not produce her as a witness. There was no eyewitness testimony linking Leidig to the scene of the alleged crime. Ms. Keener was the State’s final witness and its DNA expert. She began her testimony by explaining serology testing, DNA analysis, the STR typing procedure, and the safeguards used in the Biology Unit to ensure the integrity of the evidence and the testing procedures.

She testified that the steps she described are “the same procedures that all the analysists use at the Maryland State Police.” Regarding the DNA profile that connected Leidig to the alleged crime scene, Ms. Keener confirmed that Ms. Rollo was the “primary forensic scientist” who analyzed the forensic samples collected at the Browns’ home. Ms. Keener testified that each forensic scientist’s work “must be peer reviewed by two separate analysts before the report is released.” The prosecutor showed Ms. Keener a copy of Ms. Rollo’s report, which had been marked for identification. Ms. Keener stated that she was the “administrative reviewer” for Ms. Rollo’s report, and that “[o]n the bottom of each page I initialed indicating I agree with her results and conclusions.”12 Leidig’s attorney then objected to 12 Each CODIS/NDIS laboratory participant must “conduct and document administrative and technical reviews of all case files and reports to ensure conclusions and supporting data are reasonable and within the constraints of scientific knowledge.” FBI, 11 Ms. Keener’s testimony, contending that “the State has the wrong expert here,” and making arguments for exclusion of the evidence based on hearsay and confrontation grounds. The trial court overruled the objection.

After Ms. Keener affirmed that Ms. Rollo’s report was “the type of report that is routinely kept in the normal course of business at the Maryland State Police Crime Lab” and was also “the type of report that a forensic scientist … relies upon when doing comparisons with other individuals,” Ms. Rollo’s report was admitted into evidence. Next, Ms. Keener testified about her analysis of Leidig’s DNA reference sample and the report containing her results and conclusions. Specifically, she said: “I performed the DNA analysis and I compared my results to the results that were previously obtained Quality Assurance Standards for Forensic DNA Testing Laboratories, Standard 12.1 (2011), available at https://perma.cc/D227-A2GU (“FBI QAS”). An “administrative review” consists of “an evaluation of the report and supporting documentation for consistency with laboratory policies and for editorial correctness.” Id. at Std. 2 (definitions).

This type of review must include “[a] review of the case file and final report for clerical errors” and also ensures that certain information is included in the report (e.g., “signature and title, or equivalent identification, of the person accepting responsibility for the content of the report”); “[a] review of chain of custody and disposition of evidence”; and “[a] procedure to document the completion of the administrative review.” Id. at Std. 12.3. A “technical review” is more substantive. See Cooper v. State, 434 Md. 209, 219-20 (2013) (summarizing witness testimony distinguishing between an administrative review and a technical review). Among other things, it is “an evaluation of reports, notes, data, and other documents to ensure there is an appropriate and sufficient basis for the scientific conclusions.” FBI QAS, at Std. 2.

In other words, a technical reviewer verifies the information contained in the report. See FBI QAS, at Std. 12.2. In State v. Miller, No. 24 (Md. Aug. 5, 2021), which we also decide today, we consider the significance of a technical review in the context of a confrontation challenge to the admission of DNA evidence. 12 from Molly Rollo.” She continued: “My findings were that from the DNA profile obtained from the swabs of both the window frame and the living room curtain that the DNA profile from James Leidig matched the DNA profile obtained from both of those items.” She concluded, as provided in her report, that [t]he probabilities of selecting an unrelated individual at random that would have the same DNA profile from what was obtained from the swabs of the window frame and living room curtain are approximately one in 9.7 sextillion in the US Caucasian population. Approximately one in 3.0 sextillion within the African American population and approximately one in 5.0[] sextillion within the US Hispanic population.

Ms. Keener also confirmed that “[s]eals were intact” when she began her examination of Leidig’s known sample, and affirmed that she “employed and followed” all the “safeguards” when conducting that examination and generating a DNA profile from Leidig’s reference sample. After Ms. Keener explained the results of her analysis, she testified about Ms. Rollo’s serology tests on the forensic samples collected at the Browns’ home, and told the jury that “[Ms. Rollo’s] result was that blood was indicated on both the swabs of the window frame and of the living room curtain.” Next, Ms. Keener affirmed that her report was “the type of report that is routinely kept in the normal course of business at the Maryland State Police Crime Lab,” and the trial court admitted Ms. Keener’s report into evidence over Leidig’s objection. In his closing argument, the prosecutor reminded the jury that the DNA expert, Ms. Keener, testified that “the sample that was obtained from the curtain was a match to the sample that was obtained from the windowsill and that that was a match, that that profile 13 was a match to Mr. Leidig” and contended that “it is statistically impossible that there is another individual in the US that could have left that DNA sample there that is not James Leidig.” The jury acquitted Leidig of first-degree burglary and theft and found him guilty of third- and fourth-degree burglary and malicious destruction of property. On May 9, 2019, the court sentenced Leidig to eight years of imprisonment and ordered him to pay restitution in the amount of $886.95.

E. Appeal In his appeal of his convictions and sentence, Leidig claimed two errors: (1) his restitution order was illegal because he was acquitted of first-degree burglary and theft; and (2) the trial court violated his confrontation rights when it admitted DNA evidence through a witness who did not perform the serological or DNA analysis of the crime scene evidence. In an unreported opinion, the Court of Special Appeals vacated the restitution order but affirmed Leidig’s convictions. Leidig v. State, No. 463, Sept. Term 2019, 2020 WL 2128837 (Md. Ct. Spec. App. May 5, 2020).

Relevant to the appeal before us, the intermediate appellate court concluded that Ms. Rollo’s report was not “testimonial” because it was neither “formal” within the meaning of Justice Thomas’s opinion concurring in the judgment in Williams v. Illinois, see 567 U.S. at 110-13 (Thomas, J., concurring), nor “accusatory” within the meaning of Justice Alito’s plurality opinion in Williams, see id. at 81-86 (plurality op.). Leidig, 2020 WL 2128837 , at ⁵-6. Accordingly, the court held that Leidig’s right to confrontation was not violated when the trial court admitted Ms. Rollo’s report without Ms. Rollo present for cross-examination. Id. 14 Leidig filed a petition for certiorari asking this Court “to clarify when a forensic report constitutes testimonial hearsay such that the defendant has the right to confront the analyst who prepared the report.” We granted Leidig’s petition, Leidig v. State, 469 Md. 657 (2020), and agreed to review the following question: Did the trial court violate [Leidig]’s right to confrontation under the Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights when it admitted DNA and serological evidence through a witness who did not perform the analysis of the crime scene evidence?

II Standard of Review The decision to admit evidence is ordinarily reviewed for abuse of discretion. See, e.g., Wheeler v. State, 459 Md. 555, 560-61 (2018). However, this case presents a question of law and fact. Accordingly, our review is de novo.

Langley v. State, 421 Md. 560, 567 (2011). III Discussion As stated at the outset, a criminal defendant in a Maryland court has the right to confront and cross-examine adverse witnesses under both the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights. A sea change in Sixth Amendment jurisprudence occurred in 2004, when the Supreme Court decided Crawford v. Washington. We begin our discussion with a short history of the origins of Article 21.

Then, we summarize several pertinent confrontation cases from the decades leading up to Crawford. Next, we discuss Crawford itself, its follow-up case in 15 the Supreme Court, Davis v. Washington, 547 U.S. 813 (2006), and their application to subsequent cases in the Supreme Court and this Court involving scientific evidence. Then, using this appeal as a test case, we determine that it is necessary and appropriate to adopt our own standard under Article 21 regarding what makes an out-of-court statement “testimonial.” Applying that standard, we conclude that the admission of Ms. Rollo’s report and Ms. Keener’s testimony reporting Ms. Rollo’s results violated Leidig’s right to confrontation and cross-examination under Article 21. A. Article 21 Article 21 of the Maryland Declaration of Rights was ratified in November 1776 (then as Article 19 of the Declaration of Rights) and has been part of Maryland’s Constitution ever since.

It sets forth six rights that protect those accused of crimes: Rights of accused; indictment; counsel; confrontation; speedy trial; impartial and unanimous jury. That in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defence; to be allowed counsel; to be confronted with the witnesses against him; to have process for his witnesses; to examine the witnesses for and against him on oath; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty. Md. Decl. of Rts. art. 21. The Sixth Amendment (ratified by the States in 1791), by contrast, does not explicitly reference a right to examine witnesses under oath, but rather provides a right to the accused “to be confronted with the witnesses against him.” Nor did the declarations of rights of Virginia and Pennsylvania, which were ratified prior to Maryland’s Declaration of Rights, refer to the examination of witnesses.

Section Eight of the Virginia Declaration 16 of Rights (adopted on June 12, 1776) stated “[t]hat in all capital or criminal prosecutions a man hath a right to … be confronted with the accusers and witnesses[.]” The Pennsylvania Constitution (ratified on September 28, 1776) included a declaration of rights containing a confrontation right similar to that of Virginia: “That in all prosecutions for criminal offenses, a man hath a right … to be confronted with the witnesses[.]” After Maryland’s adoption of its Constitution, several other states adopted declarations of rights or bills of rights that contained the right of an accused to “confront”13 (or to be “confronted with”14) witnesses or to “meet the witnesses against him face to face”15 without an additional right to “examine” witnesses. The text of Article 21 indicates that the “assembly of freemen”16 who drafted the Declaration of Rights drew upon the similar provisions of Virginia and Pennsylvania, and that the later states (and the federal Constitution) similarly drew upon prior declarations of a right to confrontation. The historical record does not explain why Maryland chose to add a separate right to examine witnesses, whereas the other states and the federal Constitution did not do so. However, the assembly of freemen surely understood that they had included additional language regarding examination of witnesses that was not contained in the 13 See North Carolina Declaration of Rights § VII (Dec. 8, 1776). 14 See Vermont Declaration of Rights Ch.

I, § X (1777). 15 See Massachusetts Declaration of Rights § XII (1780); New Hampshire Bill of Rights § XV (1783). 16 This body constituted Maryland’s first General Assembly. See Maryland Manual On-Line: A Guide to Maryland & Its Government, Maryland State Archives (Jan. 31, 2018), available at https://perma.cc/3FQ6-NV7B. 17 Virginia and Pennsylvania declarations of rights. That is, the Maryland framers chose to make explicit that a criminal defendant not only has the right to meet the witnesses against him face-to-face, but also to examine them under oath. B. Pre-Crawford Jurisprudence on Confrontation Prior to the incorporation of the Sixth Amendment against the States in 1965, see Pointer v. Texas, 380 U.S. 400, 403 (1965), the “nature, scope, and meaning of the right of confrontation in Maryland developed solely from the opinions of the Court of Appeals in the context of Article 21[.]” Gregory v. State, 40 Md. App. 297, 311 (1978).

In the earliest cases interpreting Article 21, this Court stated in broad terms that Article 21 does not restrict the State’s presentation of evidence to live testimony. See Johns v. State, 55 Md. 350, 360 (1881) (“In declaring that the party accused shall have the right to be confronted with the witnesses against him, that provision of the Declaration of Rights is not to be understood as excluding all other evidence except oral evidence of witnesses produced in Court. Such has never been its interpretation, nor does the language warrant it. It is only where the prosecution is to be maintained by the testimony of living witnesses that they are required to be produced in Court, confronted with the accused, and deliver their testimony under the sanction of an oath, and be subject to cross-examination.”); Jones v. State, 205 Md. 528, 533 (1954) (relying on Johns to conclude there was no Article 21 violation in the State’s reliance on a hospital record to prove a key fact; “the right of confrontation does not apply to documentary evidence, and … the legislature has the constitutional power to change the common law rules of evidence as to what documents are admissible and the weight to be attributed to them, even in criminal cases”).

Thus, 18 according to the Court of Special Appeals in Gregory, “as of 1965, the law of Maryland (Johns and Jones) seemed to be that the right of confrontation did not apply to documentary evidence in any form, including hospital records; and that, if a document was otherwise admissible under traditional or statutory rules of evidence, it was not rendered inadmissible under Article 21, regardless of what it contained.” Gregory, 40 Md. App. at 314 . In Pointer v. Texas, the Supreme Court declared that “the Sixth Amendment’s right of an accused to confront the witnesses against him is ... a fundamental right and is made obligatory on the States by the Fourteenth Amendment.” 380 U.S. at 403 . Maryland courts analyzing confrontation issues after Pointer began the practice of applying the Sixth Amendment, while stating that Article 21 provides “the same right.” Moon v. State, 300 Md. 354, 359 (1984) (quoting Crawford v. State, 282 Md. 210, 211 (1978)); see also, e.g., Tichnell v. State, 290 Md. 43, 55 (1981). Substantively, however, federal courts prior to 1980 interpreted the Sixth Amendment to prohibit the use of documentary evidence in some instances where pre-1965 Maryland courts might have permitted it.

For example, in Kirby v. United States, 174 U.S. 47 (1899), the defendant was charged with receiving goods that had been stolen from the United States. To prove that the goods Kirby allegedly received had been stolen from the United States Government, the government introduced records of the convictions of the persons who allegedly stole the goods. Id. at 49 . At that time, the federal larceny statute made a thief’s conviction conclusive evidence against the alleged receiver that federal property was stolen.

Id. at 48 . In Kirby, the Supreme Court held that this statute was 19 unconstitutional to the extent it permitted a record of conviction to establish a fact required to be proved by witnesses: One of the fundamental guaranties of life and liberty is found in the sixth amendment of the constitution of the United States, which provides that ‘in all criminal prosecutions the accused shall … be confronted with the witnesses against him.’ Instead of confronting Kirby with witnesses to establish the vital fact that the property alleged to have been received by him had been stolen from the United States, he was confronted only with the record of another criminal prosecution, with which he had no connection, and the evidence in which was not given in his presence…. [A] fact which can be primarily established only by witnesses cannot be proved against an accused, charged with a different offense, for which he may be convicted without reference to the principal offender, except by witnesses who confront him at the trial, upon whom he can look while being tried, whom he is entitled to cross-examine, and whose testimony he may impeach in every mode authorized by the established rules governing the trial or conduct of criminal cases. Id. at 55 ; see also Pointer, 380 U.S. at 407 (finding a violation of the Sixth Amendment right to confrontation where the State at Pointer’s trial introduced a transcript of testimony given at a preliminary hearing by a witness (Phillips), at which Pointer was present but without counsel; “[b]ecause the transcript of Phillips’ statement offered against [Pointer] at his trial had not been taken at a time and under circumstances affording [Pointer] through counsel an adequate opportunity to cross-examine Phillips, its introduction ... in a criminal case ... amounted to denial of the privilege of confrontation guaranteed by the Sixth Amendment.”); cf. California v. Green, 399 U.S. 149, 161-62 (1970) (in holding that the admission into evidence of a testifying witness’s prior inconsistent statement did not violate the Confrontation Clause of the Sixth Amendment, the Court observed that “[t]he concern of most of our cases has been focused on precisely the opposite … situations where statements have been admitted in the absence of the declarant and without any chance to 20 cross-examine him at trial. These situations have arisen through application of a number of traditional ‘exceptions’ to the hearsay rule, which permit the introduction of evidence despite the absence of the declarant usually on the theory that the evidence possesses other indicia of ‘reliability’ and is incapable of being admitted, despite good-faith efforts of the State, in any way that will secure confrontation with the declarant.

Such exceptions, dispensing altogether with the literal right to ‘confrontation’ and cross-examination, have been subjected on several occasions to careful scrutiny by this Court.”). The incorporation of the federal Sixth Amendment jurisprudence into Maryland’s consideration of alleged confrontation violations led Maryland courts after 1965 to take a more nuanced approach to such cases. For example, in State v. Collins, 265 Md. 70 (1972), this Court held that a deposition of a witness who died prior to trial was inadmissible because the defendant had been unaware of, and therefore was not present at, the deposition of the declarant. We explained that “[t]he prerogative of the defendant to have his accusers confront him is a keystone to our concept of criminal justice grounded on the unwavering belief that an individual should be afforded the opportunity to challenge the witnesses against him through cross-examination.” Id. at 76 .

Although we recognized “that traditionally there are limited exceptions to the confrontation requirement,” we explained that “these aberrations have only been permitted after close scrutiny has disclosed that this type of evidence is both necessary and so intrinsically reliable that it need not be subjected to the rigors of cross-examination. Likewise, the right of confrontation is generally not violated when the accused has been given a prior opportunity to cross-examine the witnesses whose testimony is to be used against him.” Id. at 77-78 (footnote omitted). 21 And, in Gregory, a case involving a plea of not criminally responsible, the Court of Special Appeals held that the trial court violated the defendant’s rights under the Sixth Amendment and Article 21 when it admitted hospital records containing the opinions of three psychiatrists that the defendant was sane at the time of the offense. 40 Md. App. at 324-28 . In a comprehensive and thoughtful opinion authored by Judge Alan M. Wilner, the intermediate appellate court criticized dicta in another Court of Special Appeals opinion from two years earlier, Jackson v. State, 31 Md. App. 332, 343 (1976), in which the court had stated that a trial court “may, in a criminal trial, under appropriate circumstances, constitutionally dispense altogether with the literal right to confrontation and cross examination. One might view the confrontation clause and the hearsay exceptions as represented by circles, not quite concentric, but sharing a substantial area covered by both.

When a question arises in the area covered by both, either rule alone provides sufficient protection to the rights of the accused.” In Gregory, the Court of Special Appeals said of Jackson: We need not, and do not, retreat from the actual holding in Jackson that hearsay testimony of an “excited utterance” may be admissible in a criminal case. However, it does appear that such a broad statement, purporting to authorize a court to dispense altogether with the constitutional right of confrontation, and declaring, in effect, the confrontation clause to be no bar to the admission of any evidence otherwise admissible under some exception to the hearsay rule, is inconsistent with the controlling pronouncements of the Supreme Court, the Court of Appeals, and the federal appellate courts. We can no longer endorse such a conclusion. …. In reaching this conclusion, we need not consider the ultimate extent to which the right of confrontation applies to documents, as opposed to testimony; for, as the cases make clear, all documents are not alike.

A 22 transcript of prior recorded testimony is a document, and, if properly authenticated, is admissible under one or more recognized exceptions to the hearsay rule; but it is not necessarily admissible under the confrontation clause. So it is with a hospital record. The mere fact that a document is part of a hospital record made in the ordinary course of the hospital’s business, and may therefore be admissible under the hearsay rule, does not ipso facto make its admission comply with the confrontation requirement. Under what we perceive to be the prevailing, and correct, view, we must look more closely at the disputed document itself.

What evidence is contained in it? For what purpose is it offered? Does the statement in it relate directly and critically to the defendant’s guilt or innocence, or does it pertain to collateral issues? Is the document primarily testimonial, or is it merely the recordation of a fact as easily and reliably proved by the document itself as by live testimony?

If testimonial in nature, why is the author of the statements contained in it not in court? Is the information contained in it of a type that one may reasonably suppose its mere recordation in the ordinary course of business lends a sufficient reliability to it to be acceptable as trustworthy evidence? These, it would appear, are the relevant considerations. We have here not the routine record of a person’s birth, or death, or body temperature, not any other similar statement of fact or condition objectively ascertained, generally reliable and normally undisputed, and free from any motive to record falsely.

We are dealing with the opinions of supposed expert witnesses, who, in this document, are giving testimony not only as to appellant’s mental condition, but, more importantly, as to whether or not he is criminally responsible. The document was offered without limitation as to purpose, and therefore for its truth. Thus, the jury was not merely advised of the fact that three staff psychiatrists had formed certain opinions; it was asked to accept as true – i.e., to believe – the opinion of these three physicians that appellant was “sane” at the time he entered the bank. This is critical evidence of a testimonial nature, pertaining directly to appellant’s ultimate “guilt”, that could, and should, have come viva voce – from the mouths of the witnesses in court, where, under the watchful eye of the jury, they could be cross-examined in the same manner as those physicians who did testify.

There is nothing in the record to show that any of these three doctors were unavailable to appear in court; and we must assume that they did not appear simply because they were not summoned. Id. at 324-26 (footnotes omitted). 23 All of this changed in 1980, when the Supreme Court decided Ohio v. Roberts, 448 U.S. 56 (1980). In Roberts, the Supreme Court held that, even when a hearsay declarant is not present for cross-examination at trial, the declarant’s statement is admissible “if it bears adequate ‘indicia of reliability’” which may be inferred when the evidence “falls within a firmly rooted hearsay exception” or with “a showing of particularized guarantees of trustworthiness.” Id. at 66 . In effect, the Supreme Court’s holding in Roberts validated the Jackson dicta that Gregory had criticized.

Rather than breaking away from Supreme Court jurisprudence and retaining the Gregory Court’s conception of the confrontation right by way of Article 21, Maryland appellate courts after Roberts applied Roberts’s more permissive Sixth Amendment standard in several cases prior to 2004, when the Supreme Court decided Crawford v. Washington. See, e.g., Moon, 300 Md. 354 ; Wildermuth v. State, 310 Md. 496 (1987); State v. Jones, 311 Md. 23 (1987); Chapman v. State, 331 Md. 448 (1993); Simmons v. State, 333 Md. 547 (1994). C. Crawford and Its Aftermath As noted at the outset of this opinion, Crawford v. Washington involved a tape- recorded statement to police by a witness in which she described a stabbing. The defendant was the witness’s husband.

At his trial, the witness/wife was unavailable to testify as a result of Washington’s marital privilege, which generally bars a spouse from testifying without the other spouse’s consent. 541 U.S. at 40 . Under Washington law, this privilege does not extend to a spouse’s out-of-court statements admissible under a hearsay exception. In Crawford’s trial, the State sought to introduce the wife’s tape-recorded statement, which 24 she gave to officers at a police station shortly after the stabbing. The wife was given Miranda warnings prior to making her statement.

At trial, the prosecution argued that the statement was admissible as a statement against the wife’s penal interest. Id. Over Crawford’s objection based on the Confrontation Clause, the trial court admitted the wife’s statement to police, and the prosecution relied on it in closing, arguing that it was “damning evidence” that “completely refutes [Crawford’s] claim of self-defense.” Id. at 40-41 . The jury convicted Crawford of assault.

After the case made its way to the Supreme Court, the Court overruled Roberts and held that the admission of the wife’s statement to police violated Crawford’s right to confrontation under the Sixth Amendment. After examining the historical background of the Confrontation Clause, the Court stated that its “primary object” is “testimonial hearsay.” Id. at 53 . The Confrontation Clause demands that an absent witness’s out-of- court testimonial hearsay statement be inadmissible, unless “the [witness] is unavailable[] and … the defendant has had a prior opportunity to cross-examine.” Id. at 59 . To illustrate what types of formal statements may be classified as testimonial, the Court offered the following “formulations” of the “core class” of testimonial statements: ex parte in-court testimony or its functional 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; ... [and] statements that were made under 25 circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Id. at 51-52 (cleaned up). The Court stated that “[t]hese formulations all share a common nucleus and then define the Clause’s coverage at various levels of abstraction around it.” Id. at 52 . However, the Court declined to provide a “comprehensive definition of ‘testimonial.’” Id. at 68 . Two years later, in Davis v. Washington, the Court decided two cases involving statements made by alleged victims of domestic abuse to law enforcement, which prosecutors subsequently admitted at trial without the victims present for cross- examination. 547 U.S. 813 .

Justice Scalia wrote the majority opinion, as he had in Crawford. In one case, Davis v. Washington, the Court held that a tape-recorded statement by a woman to a 911 operator that her former boyfriend was in the process of assaulting her was not testimonial. In that case, the victim’s “primary purpose” in placing the 911 call “was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying.

What she said was not a weaker substitute for live testimony at trial[.]” Id. at 828 (internal quotation marks and citation omitted). In the companion case, Hammon v. Indiana, the Majority held that the alleged victim’s statement to a police officer during the officer’s investigation of the incident was testimonial. In the Majority’s view, the victim’s statements were not much different from the statements we found to be testimonial in Crawford. It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct… There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything….

When the officer … elicited the challenged statements, he was not seeking to 26 determine (as in Davis) “what is happening,” but rather “what happened.” Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime[.] Id. at 829-30 . The Majority summarized its resolution of the two cases as follows: “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. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 822 . Justice Thomas concurred in the judgment in Davis and dissented in Hammon.

He opined that, in Crawford, the Court had required “some degree of solemnity before a statement can be deemed ‘testimonial.’” Id. at 836 (Thomas, J., concurring in part and dissenting in part). In Justice Thomas’s view, “statements regulated by the Confrontation Clause must include extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” Id. (cleaned up). On this point, the Majority stated: It is true that the Crawford interrogation was more formal.

It followed a Miranda warning, was tape-recorded, and took place at the station house, see 541 U.S., at 53, n. 4 , 124 S.Ct. 1354 . While these features certainly strengthened the statements’ testimonial aspect—made it more objectively apparent, that is, that the purpose of the exercise was to nail down the truth about past criminal events—none was essential to the point…. What we called the “striking resemblance” of the Crawford statement to civil-law ex parte examinations, 541 U.S., at 52 , 124 S.Ct. 1354 , is shared by [the victim’s] statement here…. Both statements deliberately recounted, in 27 response to police questioning, how potentially criminal past events began and progressed.

And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.” Id. at 830. Notably, Davis was an 8-1 decision. Chief Justice Roberts, Justice Kennedy, Justice Breyer, and Justice Alito – who would constitute a separate bloc in three subsequent cases discussed below – joined the majority opinion.

In the years that have passed since the Court decided Crawford and Davis, the Supreme Court and other courts around the country have grappled with the meaning of “testimonial” in the context of scientific evidence. The eight-Justice majority in Davis splintered into two groups of four in these cases, leading to confusion in this Court and many others. We now turn to the pertinent scientific evidence cases of the Supreme Court and this Court in their chronological order: Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming v. New Mexico, 564 U.S. 647 (2011); Derr v. State, 422 Md. 211 (2011) (“Derr I”); Williams v. Illinois, 567 U.S. 50 (2012); Derr v. State, 434 Md. 88 (2013) (“Derr II”); Cooper v. State, 434 Md. 209 (2013); and State v. Norton, 443 Md. 517 (2015). We also note the Supreme Court’s decision not to grant certiorari in another such case, Stuart v. Alabama, 139 S. Ct. 36 (2018). 1.

Melendez-Diaz and Bullcoming In Melendez-Diaz v. Massachusetts, the Supreme Court held that the forensic reports at issue in that case fell within the “core class of testimonial statements” outlined in Crawford. 557 U.S. at 310 . In that case, Melendez-Diaz had been charged with distributing and trafficking cocaine. Id. at 308 . At trial, the court admitted into evidence “certificates 28 of analysis,” the results of which stated that the substance seized from Melendez-Diaz contained cocaine.

Id. The certificates were sworn to by the analysts before a notary public, in accordance with the applicable Massachusetts statute. Id. The analysts who prepared the certificates were absent from the trial.

Id. Writing for a five-person Majority, Justice Scalia concluded that the certificates were admitted in violation of the Confrontation Clause for reasons related to their form and intended use. The certificates were affidavits, i.e., “declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.” Id. at 310 (quoting Black’s Law Dictionary 62 (8th ed. 2004)). The certificates were also “solemn” declarations “made for the purpose of establishing or proving some fact”: that the substance found in Melendez-Diaz’s possession was cocaine.

Id. Furthermore, the Court concluded that, because “the sole purpose of the affidavits was to provide ‘prima facie evidence of the composition, quality, and the net weight’ of the analyzed substance” and because that purpose was stated on the certificates, the analysts must have been aware of the certificates’ purpose. Id. at 311 . Therefore, the Court held that the certificates were testimonial, and that the analysts who executed them were witnesses whom Melendez-Diaz was entitled to confront and cross-examine at trial.

Id. at 311, 329 . Justice Thomas once again wrote separately to express his view that “the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” Id. at 329 (Thomas, J., concurring) (internal quotation marks and citations omitted). He explained that he joined the majority opinion because the 29 certificates “at issue in the case ‘are quite plainly affidavits’” and, “[a]s such, they ‘fall within the core class of testimonial statements’ governed by the Confrontation Clause.” Id. at 330 (quoting the majority opinion, id. at 310 ). Justice Kennedy wrote a dissenting opinion, joined by Chief Justice Roberts, Justice Breyer, and Justice Alito.

Among other points, the dissenters criticized the majority for failing to “acknowledge the real differences between laboratory analysts who perform scientific tests and other, more conventional witnesses.” Id. at 330 (Kennedy, J., dissenting). Two years later, the Court decided Bullcoming v. New Mexico. There, the Court considered whether a prosecutor may introduce a forensic laboratory report through the in- court testimony of an expert who neither signed the report nor performed or observed the analysis. 564 U.S. 647 . Bullcoming was arrested for driving while intoxicated (DWI) and was convicted of aggravated DWI.

Id. at 651. The sole evidence used to support his prosecution for aggravated DWI was a forensic laboratory report that certified his blood- alcohol concentration was above the threshold for that offense. Id. At Bullcoming’s trial, the prosecution presented a “certificate of analyst,” which was signed by a forensic analyst assigned to test Bullcoming’s blood sample.

Id. at 653. The State did not call the certifying analyst to provide in-court testimony. Id. at 655. Instead, the prosecution called an expert who was familiar with the process and procedures involved in the analysis, and sought to introduce the report as a business record.

Id. Writing for the five-Justice majority, Justice Ginsburg explained that, under Crawford and Melendez-Diaz, Bullcoming had a right to confront the witness who prepared the report, 30 and that the introduction of the report through “surrogate testimony” of an expert who neither signed the report nor performed or observed the test reported in it, does not pass constitutional muster. Id. at 652. The Court emphasized that, although the blood-alcohol concentration report was unsworn, whereas the certificates in Melendez-Diaz were sworn, that was a distinction without a difference for constitutional purposes.

See id. at 664-65. Justice Thomas joined most of the majority opinion, but significantly, not footnote 6, which quoted the operative language from Davis concerning what made the statements in those cases testimonial (or not testimonial): “To rank as ‘testimonial,’ a statement must have a ‘primary purpose’ of ‘establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.’” Id. at 659 n.6 (quoting Davis, 547 U.S. at 822 ) (alterations in original). Thus, there were not five votes to apply Davis’s “primary purpose” standard in the context of a scientific report. The same four Justices who dissented in Melendez-Diaz again dissented in Bullcoming.

See id. at 674 (Kennedy, J., dissenting). 2. This Court’s Decision in Derr I Three months after the Supreme Court decided Bullcoming, this Court issued its opinion in Derr I. In a unanimous decision, the Court relied on Bullcoming and held that “the trial judge erred in admitting the results of scientific testing through a surrogate analyst who did not … perform or observe the actual testing.” 422 Md. at 253 . At Derr’s trial, the State called an expert who supervised the work of the analysts on her team and reached 31 conclusions after reviewing their work and the work of analysts whom she did not supervise. Id. at 245-46 .

We summarized our analysis as follows: In the case of 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, 564 U.S. at 657-65 , 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, 564 U.S. at 660 , 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 statements that are subject to the requirements of the Confrontation Clause. Id. at 236-38 (cleaned up). 32 3. The Supreme Court’s Fractured Decision in Williams v. Illinois The Supreme Court’s last substantive decision concerning the Confrontation Clause in the context of forensic evidence was Williams v. Illinois in 2012.

In that case, Williams was tried before a judge and convicted of crimes related to a sexual offense. 567 U.S. at 59-60 . In the course of the investigation, analysts at a private laboratory, Cellmark Diagnostics, generated a DNA profile from genetic material contained on vaginal swabs taken from the victim (the “Cellmark profile”). Their findings were presented in a document titled “Report of Laboratory Examination” (the “Cellmark report”). The Cellmark report listed both Cellmark’s “case” number and the “Agency Case No.” and stated: DNA testing using the Polymerase Chain Reaction (PCR) and the AmpFISTR Profiler PlusTM and the AmpFISTR COfilerTM Amplification Kits was performed on the indicated exhibits.

The loci tested and the results obtained for each tested sample are listed in Table 1. Additional information regarding possible male contributor(s) is listed in Table 2. The DNA obtained from the epithelial cell fraction of the vaginal swab is from a female and matches the profile for [the victim]. The DNA obtained from the sperm fraction of the vaginal swab is a mixture from a male and female.

Types present in the mixture are consistent with the types obtained from [the victim]. Assuming that the mixture contains DNA from only two sources and [the victim] is one of the sources, the possible types of male donor are listed in Table 2. …. In the absence of specific instruction, evidence will be returned to the submitting agency[.] Table 2 of the Cellmark report set forth the DNA profile of the “Deduced Male Donor” taken from one of the victim’s vaginal swabs. The report was signed by two “reviewers,” 33 who were listed, respectively, as the “Laboratory Director[s]” of Cellmark’s “Forensic Laboratory” and “Identity Laboratory.”17 At trial, the prosecution did not call either of the Cellmark reviewers as a witness.

Rather, the prosecution presented the testimony of three other forensic scientists: (1) one who tested the vaginal swabs collected from the victim and confirmed the presence of semen on them; (2) one who developed a DNA profile from Williams’s reference sample and entered it into a database; and (3) one who compared the Cellmark profile to Williams’s DNA profile and testified that the two profiles matched. See id. at 60-62 . The Cellmark report was neither admitted into evidence nor shown to the trial judge, id. at 62 , who found Williams guilty. On appeal, Williams argued that the trial court violated his right to confrontation by permitting the third expert to testify about the results of the Cellmark report that she had had no role in creating.

Id. at 61 . The question presented for the Supreme Court’s review was “[w]hether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.” Petition for Writ of Certiorari at i, Williams v. Illinois, 567 U.S. 50 (2012) (No. 10-8505), 2010 WL 6817830 . In an opinion written by Justice Alito, a four-Justice plurality – comprised of the dissenters in Melendez-Diaz and Bullcoming – answered that question in the negative. First, 17 A copy of the Cellmark report was reproduced as Appendix C to this Court’s opinion in State v. Norton, 443 Md. 517 (2015). 34 according to the plurality, the expert who testified about the match between the Cellmark profile and Williams’s reference sample was permitted to testify because her testimony about the Cellmark profile was not “offered to prove the truth of the matter asserted,” 567 U.S. at 57-58 (plurality op.), and therefore did not convey any hearsay to the trier of fact.

Rather, the expert’s statements about the results contained in the Cellmark report were permissible under the applicable rules of evidence because they explained the expert’s basis for reaching her conclusions. Id. at 77-78 . Second, according to the plurality, even if the Cellmark report had been admitted into evidence, its admission would not have violated the Confrontation Clause because the report was not prepared for the purpose of accusing Williams, “who was neither in custody nor under suspicion” when the report was created. Id. at 84 .

In other words, because the report was produced before Williams was a suspect, the report was not “accusatory” and, therefore, unlike the reports at issue in Melendez-Diaz and Bullcoming, not testimonial. Id. at 82-83 . Justice Breyer joined the plurality opinion but also wrote a concurring opinion in which, among other points, he expressed a practical concern about forsaking the previously common approach of permitting scientific experts to rely on the findings of other scientists when providing their expert opinions, without requiring the prosecution also to call the other scientists as witnesses. According to Justice Breyer, “[o]nce one abandons the traditional rule, there would seem often to be no logical stopping place between requiring the prosecution to call as a witness one of the laboratory experts who worked on the matter and requiring the prosecution to call all of the laboratory experts who did so.” Id. at 89 (Breyer, J., concurring). 35 Justice Thomas wrote a concurring opinion for himself only, and Justice Kagan wrote a dissenting opinion, which was joined by Justices Scalia, Ginsburg, and Sotomayor.

All five of these Justices rejected the plurality opinion in its entirety. With respect to whether the Cellmark report was hearsay, Justice Thomas opined that “statements introduced to explain the basis of an expert’s opinion are not introduced for a plausible nonhearsay purpose” and that “[t]here is no meaningful distinction between disclosing an out-of-court statement so that the factfinder may evaluate the expert’s opinion and disclosing that statement for its truth.” Id. at 106 (Thomas, J., concurring). Justice Thomas also disagreed with the plurality’s “testimonial” test that analyzed whether the statement in question is “accusatory.” According to Justice Thomas, “[t]here is no textual justification … for limiting the confrontation right to statements made after the accused’s identity became known.” Id. at 114 . However, Justice Thomas concurred in the plurality’s judgment because, in his view, the Cellmark report “lacked the requisite formality and solemnity to be considered testimonial for purposes of the Confrontation Clause.” Id. at 103 (cleaned up).

According to Justice Thomas, for a declarant’s extrajudicial statement “to be testimonial within the meaning of the Confrontation Clause, the declarant must primarily intend to establish some fact with the understanding that his statement may be used in a criminal prosecution” and the statement must “bear[] the formality and solemnity necessary to come within the scope 36 of the Clause.” Id. at 114 . With respect to the report at issue in Williams, Justice Thomas concluded: The Cellmark report lacks the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact. Nowhere does the report attest that its statements accurately reflect the DNA testing processes used or the results obtained. The report is signed by two “reviewers,” but they neither purport to have performed the DNA testing nor certify the accuracy of those who did.

And, although the report was produced at the request of law enforcement, it was not the product of any sort of formalized dialogue resembling custodial interrogation. Id. at 111 (cleaned up). In contrast to the blood-alcohol concentration report at issue in Bullcoming, Justice Thomas opined that the Cellmark report “certifie[d] nothing.” Id. at 112 . In her dissenting opinion, Justice Kagan agreed with Justice Thomas’s critique of the plurality opinion.

See id. at 125-38 (Kagan, J., dissenting). With respect to the plurality’s “accusatory” test, Justice Kagan observed that such a requirement “has no basis in our precedents,” id. at 135 , and quoted Davis’s standard: “We have previously asked whether a statement was made for the primary purpose of establishing ‘past events potentially relevant to later criminal prosecution’—in other words, for the purpose of providing evidence.” Id. (quoting Davis, 547 U.S. at 822 ). Responding to the plurality’s contention that scientific reports, such as the Cellmark report are inherently reliable, Justice Kagan wrote: Been there, done that.

In Melendez–Diaz, this Court rejected identical arguments, noting extensive documentation of “[s]erious deficiencies ... in the forensic evidence used in criminal trials.” 557 U.S., at 319 ; see also Bullcoming, 131 S.Ct., at 2711 , n.1 (citing similar errors in laboratory analysis)…. Scientific testing is “technical,” to be sure, … but it is only as reliable as the people who perform it. That is why a defendant may wish to 37 ask the analyst a variety of questions: How much experience do you have? Have you ever made mistakes in the past?

Did you test the right sample? Use the right procedures? Contaminate the sample in any way? Indeed, as scientific evidence plays a larger and larger role in criminal prosecutions, those inquiries will often be the most important in the case.

And Melendez–Diaz made yet a more fundamental point in response to claims of the über alles reliability of scientific evidence: It is not up to us to decide, ex ante, what evidence is trustworthy and what is not. See 557 U.S., at 317–318, 129 S.Ct. 2527 ; see also Bullcoming, 564 U.S., at ––––, 131 S.Ct., at 2714–2715. That is because the Confrontation Clause prescribes its own “procedure for determining the reliability of testimony in criminal trials.” Crawford, 541 U.S., at 67 , 124 S.Ct. 1354 . That procedure is cross- examination.

And “[d]ispensing with [it] because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.” Id., at 62 , 124 S.Ct. 1354 . …. The plurality can find no reason consistent with our precedents for treating the Cellmark report as nontestimonial. That is because the report is, in every conceivable respect, a statement meant to serve as evidence in a potential criminal trial. And that simple fact should be sufficient to resolve the question.

Id. at 137-38 . Justice Kagan also disagreed with Justice Thomas’s insistence that an extrajudicial statement can only be testimonial if it is “formal” or “solemn”: Justice THOMAS’s approach grants constitutional significance to minutia, in a way that can only undermine the Confrontation Clause’s protections. To see the point, start with precedent, because the Court rejected this same kind of argument, as applied to this same kind of document, at around this same time just last year. In Bullcoming, the State asserted that the forensic report at issue was nontestimonial because—unlike the report in Melendez–Diaz—it was not sworn before a notary public.

We responded that applying the Confrontation Clause only to a sworn forensic report “would make the right to confrontation easily erasable”—next time, the laboratory could file the selfsame report without the oath. 564 U.S., at ––––, 131 S.Ct., at 2717 . We then held, as noted earlier, that “[i]n all material respects,” the forensic report in Bullcoming matched the one in Melendez–Diaz. 564 U.S., at ––––, 131 S.Ct., at 2717 ; see supra, at 2266. First, a law enforcement 38 officer provided evidence to a state laboratory assisting in police investigations. See 564 U.S., at ––––, 131 S.Ct., at 2717 .

Second, the analyst tested the evidence and “prepared a certificate concerning the result[s].” Ibid. Third, the certificate was “formalized in a signed document ... headed a ‘report.’” Ibid. (some internal quotation marks omitted). That was enough.

Now compare that checklist of “material” features to the report in this case. The only differences are that Cellmark is a private laboratory under contract with the State (which no one thinks relevant), and that the report is not labeled a “certificate.” That amounts to (maybe) a nickel’s worth of difference: The similarities in form, function, and purpose dwarf the distinctions. See supra, at 2266 – 2267. Each report is an official and signed record of laboratory test results, meant to establish a certain set of facts in legal proceedings.

Neither looks any more “formal” than the other; neither is any more formal than the other. See ibid. The variances are no more (probably less) than would be found if you compared different law schools’ transcripts or different companies’ cash flow statements or different States’ birth certificates. The difference in labeling—a “certificate” in one case, a “report of laboratory examination” in the other—is not of constitutional dimension.

Indeed, Justice THOMAS’s approach, if accepted, would turn the Confrontation Clause into a constitutional geegaw—nice for show, but of little value. The prosecution could avoid its demands by using the right kind of forms with the right kind of language. (It would not take long to devise the magic words and rules—principally, never call anything a “certificate.”) And still worse: The new conventions, precisely by making out-of-court statements less “solem[n],” ante, at 2255 – 2256, would also make them less reliable—and so turn the Confrontation Clause upside down. Id. at 139-40. 4.

This Court’s Post-Williams Cases: Derr II, Cooper, and Norton After Williams was decided, the Supreme Court vacated this Court’s judgment in Derr I and remanded the case for further consideration. Maryland v. Derr, 567 U.S. 948 (2012). On remand, we reversed our holding. Derr II, 434 Md. 88 .

Under Marks v. United States, 430 U.S. 188 (1977), the Majority in Derr II discerned Justice Thomas’s concurring opinion – and its requirement that an extrajudicial statement be formal in order for the 39 statement to be testimonial – as the narrowest holding in Williams. Derr II, 434 Md. at 114. The Majority therefore stated that “forensic evidence must be at least formalized to be testimonial.” Id. at 118. Accordingly, we separately assessed each of the three reports that the court admitted into evidence at Derr’s trial for indicia of formality, and concluded that, under Justice Thomas’s analysis, the reports were not sufficiently formal to qualify as testimonial.

The serological information appeared to be unsigned notes from the bench work of the serological examiner, which did not contain anything certifying their accuracy. See id. at 118-19. Similarly, the 2002 DNA test results were comprised of “a series of numbers and lines, and on the bottom of the documents [were] the initials of two parties,” id. at 119, as were the results of the 2004 DNA test. See id. at 120.

Because nothing in the 2002 or 2004 test results attested to their accuracy, the Court concluded that Justice Thomas would hold those test results not to be formal or solemn and, therefore, not testimonial. See id. at 119- 20. The Derr II Majority noted that, in past cases, the Court had read Article 21 and the Sixth Amendment “in pari materia, or as generally providing the same protection to defendants.” Id. at 103. The Majority stated that “Derr has failed to persuade this Court to deviate from that practice,” and therefore rejected Derr’s argument that the Court should arrive at a different result by interpreting Article 21 differently than Justice Thomas had done in Williams.

Id.18 Craig v. State is where the term “in pari materia” was first invoked to reject an 18 argument that this Court should interpret Article 21 differently than the Supreme Court has 40 In dissent, Judge John C. Eldridge, joined by Chief Judge Robert Bell, criticized the Majority’s application of Marks and advocated that the Court take a different approach to confrontation in the context of scientific evidence: If Justice Thomas’s opinion in Williams did represent the holding of the Court, it is difficult to understand why no member of the plurality joined the Thomas opinion, or why Justice Thomas did not join a portion of the plurality opinion. .… The majority today, based solely on one Justice’s lone opinion, overturns this Court’s unanimous 2011 decision in the