dissenting:
My colleagues in the majority conclude that appellant Jenkins is entitled to reversal of his first-degree murder and other convictions on the ground that the admission of DNA testimony by an expert who relayed the underlying laboratory analysts’ findings without the laboratory analysts having been called to testify violated appellant’s rights under the Sixth Amendment Confrontation Clause, and constituted reversible error. On the facts of this case, I cannot agree. Neither Supreme Court jurisprudence nor our own case law requires the result my colleagues reach, and, in my view, reversal of appellant’s conviction is wholly unwarranted.
As I explain below, there are compelling reasons why we should hold instead that admission of the DNA expert’s testimony was not error with respect to some of the laboratory findings, and was not reversible error with respect to other laboratory findings the expert relayed. In the alternative, even if we assume that the DNA expert’s testimony was admitted in violation of the Confrontation Clause and might otherwise constitute reversible error, we should hold that appellant waived his confrontation rights when he relied on (and urged the jury to rely on) the DNA expert’s testimony about the laboratory analysts’ findings to his own advantage.
I.
A. This court should hold that admission of the DNA expert’s testimony and the laboratory reports either was not error at all or was not reversible error.
The Confrontation Clause “bars the government from introducing testimonial statements at trial against a criminal defendant without calling the declarant to testify in person, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declar-ant.” Thomas v. United States, 914 A.2d 1, 11 (D.C.2006) (citing Crawford v. Washington, 541 U.S. 86, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). Thus, whether admission of the statements contained in a laboratory analyst’s report without live testimony by the analyst implicates the Confrontation Clause “turns ... on whether the report was ‘testimonial.’ ” Id. at 12.
1. It is dear that five Justices of the Supreme Court would hold that the critical forensic evidence in this case was not testimonial.
In Crawford, the Supreme Court left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” 541 U.S. at 68, 124 S.Ct. 1354. As this court recognized in Young v. United States, 63 A.3d 1033 (D.C.2013), nearly a decade later, the Supreme Court remains *198divided on what criteria an out-of-court statement must meet in order to be deemed “testimonial,” and thus to implicate a defendant’s rights under the Sixth Amendment Confrontation Clause. Id. at 1040. Indeed, with particular regard to out-of-court statements by forensic laboratory analysts, the Supreme Court’s jurisprudence has left us with “persistent ambiguities in the Court’s approach.”1
Nevertheless, one fact can be clearly distilled from the Court’s opinions in this area: Five Justices of the Supreme Court would agree that DNA testimony by an expert who did not perform or witness the underlying laboratory work is not testimonial hearsay where the underlying laboratory report lacks the formality of an affidavit and where the laboratory findings were made before the defendant became a suspect (such that it cannot be said that the primary purpose of the laboratory analysis was to obtain evidence for use against the defendant at his criminal trial). See Williams v. Illinois, — U.S. -, 182 S.Ct. 2221, 2228, 188 L.Ed.2d 89 (2012) (plurality opinion) (concluding that admission of testimony about an underlying laboratory report through a DNA expert did not violate the Confrontation Clause violation because the report “is very different from the sort of extrajudicial statements, such as affidavits, depositions, prior testimony, and confessions, that the Confrontation Clause was originally understood to reach” and because the report “was produced before any suspect was identified” and “was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a [criminal] who was on the loose”); id. at 2259, 2261 (Thomas, J., concurring in the judgment) (agreeing with the plurality that “for a 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,” but opining that “this necessary criterion is not sufficient, for it sweeps into the ambit of the Confrontation Clause statements that lack formality and solemnity” and that “the Confrontation Clause regulates only the use of statements bearing ‘indicia of solemnity.’ ”).2
The fact that five Justices of the Supreme Court (“the five Justices”) agree *199that laboratory-analyst reports that were not formalized and that were made before the defendant became a suspect are not testimonial is of critical importance in this case.3 None of the evidence at issue here (i.e., the laboratory findings that DNA expert Dr. Baechtel relayed) was in the form of an affidavit, attestation, certification, sworn statement, or similar formal declaration; thus, the analysts’ reports lacked the formality that Justice Thomas has repeatedly opined is necessary for a statement to be testimonial. In addition, what turned out to be the most important forensic evidence in the government’s case — the evidence that enabled Dr. Baechtel to conclude that victim Dolinger’s blood was found on the front, upper right of the gray shirt that other trial witnesses linked to appellant,4 and the evidence that blood DNA of only a single unknown individual (acknowledged by the defense to be appellant Jenkins) was found on the lower right back of the gray shirt, in the left pocket of the jeans that were lying near Dolinger’s body, on the basement sink and sink stopper, and on the bannister leading to the second floor of Dolinger’s house — was the result of laboratory work (including serology work and DNA extraction and typing) done before appellant was identified as a suspect.5
Given that five Justices of the Supreme Court would agree that the forensic laboratory evidence described above was not testimonial hearsay as relayed by Dr. Bae-chtel, we should hold that this evidence was properly admitted, without the individuals who did the underlying laboratory work having been called to testify.6 See State v. Deadwiller, 834 N.W.2d 362, 378-79 (Wisc.2013) (concluding that testimony did not violate defendant’s right to confrontation because, “[ajpplying the various rationales of Williams, a majority of the United States Supreme Court would come to the ... conclusion ... that the expert’s testimony did not violate the defendant’s right to confrontation ]”); People v. Dun-go, 55 Cal.4th 608, 147 Cal.Rptr.3d 527, 286 P.3d 442, 456 (2012) (“[W]e must determine whether there was a confrontation clause violation under Justice Thomas’s opinion and whether there was a confrontation clause violation under the plurality’s opinion. If there was no violation under both opinions, then the result (finding no confrontation clause violation) would command the support of a majority from the high court’s Williams case.”); Gutierrez v. Yates, No. CV 11-3123 MWF (FFM), 2012 WL 5348698, at *8, *8 2012 U.S. Dist. LEXIS 157092, at *22, *23 (C.D.Cal. Sept. 10, 2012) (habeas proceeding concluding *200that state appellate court “reasonably applied Supreme Court precedent” in holding that laboratory analyst’s statements were not testimonial, because when analyst “Haynes prepared his file, petitioner was not a suspect in the case” and Haynes’s file was not “a formalized document akin to an affidavit or sworn declaration”), adopted by No. CV 11-3123 MWF (FFM), 2012 WL 5347953, 2012 U.S. Dist. LEXIS 155587 (C.D.Cal. Oct. 29, 2012); cf. State v. Medina, 306 P.3d 48, 63 (Ariz.2013) (holding that where an “autopsy was conducted the day after the murder, before Medina became a suspect” and the autopsy report did not “ ‘certifyt ] the truth of the analyst’s representations,’ ” the report was non-testimonial).7
2. Admission of the forensic evidence that we are bound to recognize as testimonial was harmless beyond a reasonable doubt.
There was, to be sure, additional laboratory work done after appellant became a suspect. This court’s opinion in Young requires us to treat this evidence as testimonial even though it lacked the formality that Justice Thomas generally would require for evidence to be deemed testimonial. See Young, 63 A.3d at 1043-44 (“[A] statement is testimonial at least when it passes the basic evidentiary purpose test plus either the [Williams ] plurality’s targeted accusation requirement or Justice Thomas’s formality criterion.”) (emphasis in original). Admission of this testimonial hearsay evidence was not, however, reversible error.
Most of the evidence just described was DNA typing and other laboratory work involving appellant’s known blood sample, on which Dr. Baechtel relied to conclude that there was a match between appellant’s blood and the blood found at the crime scene. To repeat, in relaying the results of the underlying laboratory-analyst work, Dr. Baechtel relayed what Young compels us to hold was testimonial hearsay. Admission of this testimonial hearsay was not prejudicial, however, because appellant’s trial counsel conceded in both opening statement and closing argument that appellant’s blood was found in all the locations in Dolinger’s house where the government sought (through Dr. Bae-chtel’s testimony) to prove it was found.8 Consistent with our holding in Kaliku v. *201United States, 994 A.2d 765 (D.C.2010), we should conclude that counsel’s concessions were evidentiary admissions that rendered admission of this evidence without presentation of the laboratory analysts who actually performed the underlying laboratory tests and procedures harmless beyond a reasonable doubt. See id. at 776-77.
The record shows that Dr. Baechtel also relayed other laboratory findings made after appellant became a suspect: that no blood was found on what other evidence showed was appellant’s black backpack that contained Dolinger’s credit and identification cards; that Dolinger’s blood was found on the clothing removed from his body; that no DNA was found on the kitchen stool or bathroom floor of Doling-er’s house; and that the DNA of five other individuals known to the FBI did not match DNA found at the crime scene. However, this evidence was either non-inculpatory, or cumulative of laboratory findings produced before appellant became a suspect in the case,9 or both. Thus, its admission, too, was harmless beyond a reasonable doubt.10
To summarize the discussion above, the forensic laboratory evidence relayed by Dr. Baechtel in this case falls into three categories: (1) laboratory findings reported before appellant became a suspect, which should be deemed non-testimonial under the tests applied by the four Justices in the Williams plurality and Justice Thomas; (2) laboratory findings reported after appellant became a suspect, which we must recognize as testimonial hearsay under Young, but whose admission was harmless because appellant made eviden-tiary admissions acknowledging what the evidence showed (i.e., that his blood was found at the crime scene everywhere Dr. Baechtel said it was found); and (3) laboratory findings reported after appellant became a suspect, which we recognize as testimonial under Young, but whose admission was harmless because the evidence was non-inculpatory, cumulative of non-testimonial evidence, or both. Accordingly, none of this admitted evidence warrants reversal of appellant’s conviction.
S. Neither Marks nor adherence to other pre-Williams Supreme Court precedent dictates against applying the guidance derived from the opinions of the plurality and Justice Thomas in Williams.
My colleagues in the majority reject the analysis I set out above with respect to the *202laboratory findings produced before appellant became a suspect in the case, asserting that Williams was not precedential and “creates no new rule of law that we can apply in this case.” Ante, 176, 189. They rely on “the so-called Marks principle — that ‘[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds’ ” (quoting Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)) (internal quotation marks omitted), and then repeat the observation in Young that the plurality opinion in Williams and Justice Thomas’s opinion concurring in the judgment “lack the ... common denominator” necessary to eke out a precedential holding from the two opinions. Young, 63 A.3d at 1043.11 My colleagues assert that we therefore “must rely on Supreme Court precedent before Williams to the effect that a statement triggers the protections of the Confrontation Clause when it is made with the primary purpose of creating a record for use at a later criminal trial,” ante, 189 (quoting United States v. James, 712 F.3d 79, 95-96 (2d Cir.2013)), and on ■pre-Williams case law in this jurisdiction, authorities that they reason compel the conclusion, as to all of the evidence discussed in subsections a and b above, that Dr. Baechtel relayed testimonial hearsay. Ante, 191-92.
I believe my colleagues’ approach is misguided and that their objections need not and should not lead us to ignore the guidance of the five Justices. First, this court has never held that the fact that a plurality opinion and concurring-in-the-judgment opinion do not rely on a single rationale to explain the result (i.e., the fact that the Marks principle does not apply) means that guidance that may be derived from the opinions taken together is irrelevant. To the contrary, faced with this circumstance in the past, we have deemed it appropriate to analyze a case “under both [the concurring] opinion and the plurality’s test.” Edwards v. United States, 923 A.2d 840, 848 (D.C.2007) (“Since there is some disagreement concerning the precise analysis that Seibert [i.e., Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (plurality opinion with Justice Kennedy concurring in the judgment) ] mandates, ... we will analyze this case under both Justice Kennedy’s opinion and the plurality’s test.”). Possibly, the plurality and concurring-in-the-judgment opinions in Williams will not be helpful in resolving in some other cases the issue of whether laboratory reports were testimonial, but I can think of no reason why we should want to ignore (or should feel free to ignore) the guidance we have received through these opinions when, together, they address the very situation that confronts us in this case with respect to the informal laboratory reports produced before appellant became a suspect.
Nor, in my view, in light of M.A.P. v. Ryan,12 should we feel free to take a step backwards from our opinion in Young, where we recognized that the disparate Williams opinions make it appropriate to *203apply an “intermediate” test that endorses application of a rule that would evoke the agreement of a majority of the Justices. See Young, 68 A.3d at 1043^4.13 Moreover, by refusing to take from the Williams opinions guidance that is directly applicable to this case, on the ground that the opinions do not establish “precedent,” my colleagues have taken an unduly rigid approach.
Further, if my colleagues seriously mean to take guidance from “Supreme Court precedent before Williams ” and to cleave to the Marks principle, to be consistent they ought not apply the rule they articulate, i.e., “that a statement triggers the protections of the Confrontation Clause when it is made with the primary purpose of creating a record for use at a later criminal trial.” Ante, 189 (quoting James, 712 F.3d at 96). That is because, outside the context of a statement made in response to police interrogation, a majority of the Supreme Court has never held that a sufficient criterion for deeming an out-of-court statement to be testimonial is that it was made with the primary purpose of creating a record for use at a later criminal trial. In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), a majority of the court held that a statement “made in the course of police interrogation” is “testimonial when the circumstances objectively indicate that there is no ... 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, 126 S.Ct. 2266. However, a majority of the court has not applied that same test to forensic laboratory findings.14 This court’s opinion in Young correctly refers to the so-called “primary evidentia-ry purpose test” in the context of forensic laboratory findings as “the basic ‘eviden-tiary purpose’ test espoused by Justice Kagan” in her opinion for the dissenting Justices in Williams, Young, 63 A.3d at 1043, but appropriately did not suggest that this test represents “Supreme Court precedent before Williams.”
The Supreme Court came close to applying the “primary evidentiary purpose test” in Melendez-Diaz when it held that the certificates of analysis at issue in the case “required the analysts to testify in person” because the certificates were “prepared specifically for use at petitioner’s trial,” were “incontrovertibly a ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact,’ ” and under Massachusetts law had “the sole purpose ... to provide ‘prima facie evidence of the composition, quality, and the net weight’ of the analyzed substance.” 557 U.S. at 309, 310, 311, 324, 129 S.Ct. 2527. But, to repeat, Justice Thomas, the fifth member of the Melendez-Diaz majority, wrote separately to state that he joined the Court’s opinion only “because the documents at issue in this case are quite plainly affidavits, ... [and][a]s such, *204they fall within the core class of testimonial statements governed by the Confrontation Clause.” Id. at 330, 129 S.Ct. 2527 (Thomas, J., concurring) (citation and internal quotation marks omitted).15 As this court found “notable” in Little v. United States, 989 A.2d 1096, 1105 n. 12 (D.C.2010), “Justice Thomas’s narrow concurring opinion expressly signed onto the majority opinion only with respect to ‘certificates of analysis,’ ‘the documents at issue in this case.’ ” Id.; see also, e.g., Nardi v. Pepe, 662 F.3d 107, 111 (1st Cir.2011) (noting that Justice Thomas, “a necessary fifth vote for the majority[,] limited his support to ‘formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions’ ”).
This situation has led one court to observe, insightfully, that “[w]hile on its face the [Melendez-Diaz ] opinion could be dubbed a ‘majority’ opinion, we refer to it as a plurality opinion because the language of Justice Thomas’s concurrence makes clear that his assent to the opinion was not a blanket endorsement of its entire rationale.” People v. Davis, 199 Cal.App.4th 1254, 132 Cal.Rptr.3d 472, 479 n. 6 (2011). Particularly apropos of my colleagues’ reasoning here, another court has observed:
“When applying the Marks rule, we look for ‘a legal standard which, when applied, will necessarily produce results with which a majority of [the Justices] from that case would agree.’ ” Dickens v. Brewer, 631 F.3d 1139, 1145 (9th Cm. 2011).... Therefore, in Melendez-Diaz, Justice Thomas’ limitation in his concurrence to “extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” provides the narrow holding of that case with regard to the type of extrajudicial statements that implicate the Confrontation Clause.
Benjamin v. Harrington, No. CV 11-2899-JVS, 2012 WL 3248256, at *8-9, 2012 U.S. Dist. LEXIS 113911, at *23 (C.D.Cal. June 27, 2012) (citations and other internal quotation marks omitted); accord Derr, 434 Md. at 118, 73 A.3d 254 (“[Applying the narrowest holding in Williams, forensic evidence must be at least formalized to be testimonial. Because we determine that none of the challenged forensic test results are sufficiently formalized within the meaning of the plurality and Justice Thomas’s concurring opinions, we further conclude that none are testimonial.”)16; People v. Brown, 2013 WL 1629430, at *4, 2013 Mich.App. LEXIS 688, at *11 (Mich.Ct.App. Apr. 16, 2013) (“Consistent with Justice Thomas’s analysis, we conclude that B ode’s DNA report was not testimonial within the meaning of the Confrontation *205Clause because it lacked the requisite formality and solemnity.”). Similarly, the court in People v. Davis said that it would “give effect to Justice Thomas’s act of joining the [Melendez-Diaz ] opinion and the language of his separate concurrence by treating the analytical consistency between the opinion and Justice Thomas’s separate concurrence as the controlling precedent.” 132 Cal.Rptr.3d at 479 n. 6.
I agree with the courts quoted above that the Marks principle dictates that the common denominator (what People v. Davis termed the “analytical consistency”) between the Melendez-Diaz “majority” opinion and Justice Thomas’s separate concurrence represents the controlling Supreme Court precedent — meaning that what my colleagues in the majority refer to as “Supreme Court precedent before Williams ” amounts to a rule that (outside the context of police interrogation) only formalized materials, such as affidavits, certificates, and prior testimony, are testimonial.17
Stated differently, to rely solely on “Supreme Court precedent before Williams ” would be to conclude that none of the DNA testimony at issue in this case relayed testimonial hearsay, because nothing in the record indicates that any of the laboratory reports presented through Dr. Baechtel’s testimony were in the form of affidavits, certifications, or similar formalized statements.18 I do not argue, however, that this is the approach we should take in analyzing this case, because, of course, as a Division we are bound not only by Supreme Court precedent but also by this court’s precedents, which have filled in some of the gaps left by the Supreme Court’s having to date “not squarely addressed” the question, “How does the Confrontation Clause apply to the panoply of crime laboratory reports and underlying technical statements written by (or otherwise made by) laboratory technicians?” Williams, 132 S.Ct. at 2244^45 (Breyer, J., concurring). Young in particular established an “intermediate” rule that “an out-of-court statement is testimonial under that precedent if its primary purpose is evidentiary and it is either a targeted accusation or sufficiently formal in character.” 63 A.3d at 1043, 1044.19 I *206turn next to a discussion of our other relevant precedents.
Jp. This court’s precedents harmonize with, and thus do not require us to turn a blind eye to, the guidance derived from the plurality and Thomas opinions in Williams.
My colleagues in the majority conclude that the opinions in Williams do not “affect[ ] our rule in Roberts v. United States, 916 A.2d 922, 938 (D.C.2007), that there is no ‘dispute’ that the conclusions of FBI laboratory scientists — the serologist, the PCR/STR technician, and the examiner— admitted as substantive evidence at trial are ‘testimonial’ under Crawford.” Ante, 180. I disagree with both the premise and the conclusion.
The first point I would make is that my colleagues’ summary of the holding of Roberts (ante, 182-83) is somewhat misleading. We decided Roberts (and made the statement that my colleagues quote) in reliance on Thomas, observing that Thomas left “no room for dispute,” that the conclusions of the laboratory analysts admitted as substantive evidence were testimonial, since the analysts were “ ‘tasked ’ ... to perform tests providing the basis for ‘critical expert witness testimony ... against appellant at his criminal trial.’ ” Roberts, 916 A.2d at 938 (quoting Thomas, 914 A.2d at 13) (italics added); see also Thomas, 914 A.2d at 14 (“[BJecause DEA chemist’s reports are created expressly for use in criminal prosecutions as a substitute for live testimony against the accused, such reports are testimonial.” (italics added)). The other factor we highlighted in Thomas (in concluding that the Drug Enforcement Administration chemist’s report was testimonial) was that “[i]n form and content, the [laboratory analyst’s] report was a formal and solemn ‘attestation’ ” “designed to serve as ... testimony.”20 Thomas, 914 A.2d at 12-13. Thus, the factors we found dispositive in Thomas and Roberts are the very factors that the five Justices view as determinative of whether a forensic laboratory report is testimonial. I therefore cannot agree with my colleagues that “our own case law has established the principle that statements of DNA findings and analysis are testimonial if they are made primarily with an evidentiary purpose, regardless of their formality or any other particular criteria.” Ante, 184.
My second basis for disagreeing with my colleagues is that M.A.P. v. Ryan does not “oblige[] us to follow, inflexibly, a ruling whose philosophical basis has been substantially undermined by subsequent Supreme Court decisions.” Frendak v. United States, 408 A.2d 364, 379 n. 27 (D.C.1979); see also Washington v. Guest Servs., Inc., 718 A.2d 1071, 1075 (D.C.1998) (same) (quoting Frendak); District of Columbia v. Beretta U.S.A. Corp., 940 A.2d 163, 179 (D.C.2008) (recognizing that where the law “simply has not stood still” and “when intervening constitutional rulings necessitate a change in prior law, a division of this court is empowered to recognize that earlier decisions no longer *207have force” (quoting Kleinbart v. United States, 604 A.2d 861, 870 (D.C.1992)) (alterations and internal quotation marks omitted)).
Third, in my view, the plurality and concurring-in-the-judgment opinions in Williams give us a weighty reason to limit our opinion in Roberts as well as our opinions in Gardner and other relevant cases to their facts — a course we have sometimes taken when, in a prior case, our court was not presented with facts that subsequent case law developments suggest may be significant. See, e.g., Robinson v. Washington Internal Med. Assocs., P.C., 647 A.2d 1140, 1145, 1145 n. 2 (D.C.1994). Attention to the facts of these prior cases reveals that their holdings square quite comfortably with the rule derived from the plurality and Thomas opinions in Williams.
In Roberts, after complainant K.W. reported that defendant Roberts had forced her to have sexual intercourse with him, FBI analysts compared DNA extracted from semen found in KW.’s panties to the known DNA profile of appellant and found a match. 916 A.2d at 925. Thus, a primary purpose of the laboratory analysis (the results of which were relayed at trial by a substitute for the original DNA examiner) was to provide evidence “against appellant at his criminal trial.” Id. at 938. In Gardner, the laboratory analysis to which the testifying experts referred at trial was performed after the defendant became a suspect in the shooting of a cab driver; the analysis found a DNA match between profiles developed from blood found on the defendant’s jacket and the victim’s blood. 999 A.2d at 57. Veney v. United States, 986 A.2d 811 (D.C.2007), too, was a first-degree sexual abuse case in which the defendant became a suspect based on the victim’s identification of him as the perpetrator. Thus, the laboratory analysis was ordered with a primary purpose of providing evidence against appellant at his criminal trial. See id. at 816. We simply “[a]ssum[ed] a confrontation clause violation.” Id. at 831. Similarly, in Kaliku, witnesses identified the defendants as the perpetrators of a sexual assault, and DNA testing was performed thereafter. 994 A.2d at 773-74. This court assumed without deciding that admission of the DNA expert’s testimony violated the Confrontation Clause. Id. at 776, 777.
Thus, limited to their facts, none of our precedents compels us to treat as testimonial hearsay a DNA expert’s testimony that relays non-solemnized laboratory findings reported before the defendant became a suspect.21
5. The facts of this case furnish an additional compelling reason for declining to apply the Confrontation Clause with “wooden formalism.”
There is an additional reason why we should resolve this case by applying the analysis this dissenting opinion advocates, rather than by applying Confrontation Clause rules “unleavened by principles tending to make [the] rules more sensible” or “applying wooden formalism” that results in “bar[ring] reliable [DNA] testimony offered by the prosecution.” Bull-coming, 131 S.Ct. at 2727 (Kennedy, J., dissenting). It is that “the defendant in this case was already protected by checks on potential prosecutorial abuse such as free retesting for defendants.” Id. That is, the record shows that the crime-scene evidence in this case was made available for testing or re-testing by appellant’s de*208fense team. I believe we can say with assurance that if appellant’s independent testing had provided him with a basis for any genuine doubt about the accuracy and reliability of the forensic laboratory analy-ses in this case, he would have been able to demonstrate the reasons therefor through cross-examination of Dr. Baechtel or through presentation of his own DNA expert.22
I recognize that an almost knee-jerk reaction to this point will be a protest that it amounts to shifting the burden of proof away from the government (where it must always remain) to the defense, but that protest would be misplaced. There can be no doubt that the government bore its burden of proof in his case. The point I have attempted to make is that this court should not be resistant to a test for whether DNA testimony relays testimonial hearsay that both reflects the views of five Justices of the Supreme Court that testimony such as that in issue here was not testimonial and that sensibly avoids reversal of a murder conviction when the availability of independent testing by the defense leaves us with no reason to doubt that the DNA expert’s testimony was reliable.23 In this circumstance, “requiring the [government] to call the technician who filled out a form and recorded the results of a test is a hollow formality.” Id. at 2724 (Kennedy, J., dissenting). We ought not to resolve “the difficult general question ... as to how, after Crawford, Confrontation Clause ‘testimonial statement’ requirements apply to crime laboratory reports” by resorting to hollow formalities. Williams, 132 S.Ct. at 2248 (Breyer, J., concurring). Nor should we ignore the Justices’ more refined views in Williams by invoking broad pronouncements which were not joined by all the justices who formed the majority in fractured 5-4 decisions, and whose application “could undermine, not fortify, the accuracy of factfind-ing at a criminal trial.” Id. at 2251 (Breyer, J., concurring).
B. In the alternative, we should hold that appellant waived his confrontation rights in this case when, to his own advantage, he elicited from Dr. Baechtel testimony relaying laboratory analysts’ findings.
There is yet another reason why reversal is not warranted in this case. • A defendant can waive his confrontation rights by strategically using the objectionable evidence “to bolster his theory of the case.” United States v. Cooper, 243 F.3d 411, 416 (7th Cir.2001). A substantial argument can be made that this is precisely what happened here, notwithstanding the defense’s vigorous pre-trial objections that Dr. Baechtel lacked the “personal knowledge” to testify about the details, accuracy, *209and reliability of the work performed and the results reported by the laboratory analysts.
During trial, appellant’s defense team did not stand on the objections the defense had raised earlier about Dr. Baechtel’s inability to “say whether the biologists did ... what the biologist[ ] was supposed to do,” about Dr. Baechtel’s lack of “personal knowledge” about whether laboratory analysts did certain testing and about matters such as whether a stain was a bloodstain and whether it came from a particular evidence sample, and about the possibility that analysts “manipulate[d] the data.” Nor was defense counsel’s cross-examination of Dr. Baechtel limited to asking questions to establish that he could not say from personal knowledge whether or how the laboratory analysts performed various tasks.24 Rather, defense counsel posed questions to Dr. Baechtel that invited him to vouch for what the serologists and biologists did or did not do. Defense counsel also elicited from Dr. Baechtel hearsay testimony about laboratory findings that counsel then asked the jury to accept to his advantage.
For example: Defense counsel elicited Dr. Baechtel’s agreement that he “definitively kn[e]w that someone else’s DNA is in the wearer areas of’ the gray shirt, and then told the jury in closing argument that “DNA inconsistent with Mr. Jenkins and Mr. Dolinger on the wearer area” showed that someone else was connected to the shirt. Counsel also elicited Dr. Baechtel’s agreement that no blood was on the screwdriver (“So what’s there is not blood, correct?”), and that laboratory staff “didn’t take the screwdriver apart to see if there was any blood ... that ... seeped down the shaft ... where the handle is” and also made no attempt to get skin-cell DNA from the screwdriver. In addition, counsel elicited testimony from Dr. Baechtel that the laboratory analysts made no effort to obtain wearer DNA from the straps of the backpack and that no blood was found on the black backpack despite diligent efforts to find any that might be there (“you [i.e., the laboratory analysts] tried as hard as— as you could to see if there was any blood on the backpack, correct?”). Counsel thereafter drew jurors’ attention to the fact that no blood was found on the backpack and asked the jury whether it made sense that appellant carried the backpack everywhere, as the government claimed, without leaving any blood.
Further, counsel elicited from Dr. Bae-chtel testimony that no effort was made by the laboratory analysts to get skin-cell DNA from a shirt that was found under Dolinger’s body; that “no serological work was done” on the collar and cuff of the gray shirt and thus that there were “no negative serological results” as to those areas; that no attempt had been made to see how much DNA was present in presumed-blood samples taken from the floor *210in Dolinger’s house and from a wall area going from the first to second floor; that “there were a number of items of evidence in this case that FBI Serology had determined were blood” that were never subjected to DNA analysis; and that there was a large number of other items, too, from which the analysts “did not attempt to get DNA results.” Counsel relied on Dr. Baechtel’s testimony that much of the physical evidence from the crime scene was never tested by the laboratory analysts to elicit his agreement that “the killer’s blood could be one of those blood stains” that his unit “did not attempt to get DNA profiles from.” And, referring to such testimony in closing argument, the defense reminded the jury that “Dr. Bae-chtel told you” that “they didn’t do DNA testing on much of the blood in the house.”
Additionally, defense counsel elicited Dr. Baechtel’s agreement that the DNA technicians “didn’t attempt amplification” of the DNA recovered from sample Q-82, a swab from the bathroom sink; that the collar and left cuff of the gray shirt were “eyeballed and no blood was observed with the eyes”; that the analysts “didn’t check all the wearer areas of the sweatshirt” and “didn’t swab the zipper.” Defense counsel also elicited Dr. Baechtel’s statement that while Dolinger’s blood was found on a Swiss army knife found in the basement, nothing connected appellant to the knife.
This court has previously recognized that where the government improperly elicits evidence but the defense “turn[s] the violation to its own advantage,” the defendant cannot on appeal “be heard to complain of the prejudice [the evidence] allegedly caused.” Mack v. United States, 570 A.2d 777, 778 n. 1 (D.C.1990).25 This rule applies here because, as described above, although complaining on appeal of Dr. Baechtel’s lack of personal knowledge about what tests the laboratory analysts performed and what they observed, the defense, in very deliberate fashion, used Dr. Baechtel to establish, to appellant’s advantage, facts about what the analysts did (or omitted) and found (or failed to find). In my view, if we do not resolve this appeal on the basis of the analysis I advocate in section 1 above, we should hold that by affirmatively relying on Dr. Bae-chtel’s knowledge about what the non-testifying analysts did and did not do and on the accuracy of their test results, appellant forfeited or strategically waived his Confrontation Clause claim with respect to Dr. Baechtel’s testimony that relayed the analysts’ statements.
For all the foregoing reasons, I respectfully dissent.
. See also id. at 2250-51 (Breyer, J., concurring) ("As the plurality notes, in every post-Crawford case in which the Court has found a Confrontation Clause violation, the statement at issue had the primary purpose of accusing a targeted individual."); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329, 330, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (Thomas, J., concurring) (joining the Court’s 5-4 opinion that certificates of forensic analysis were testimonial "because the documents at issue in this case are quite plainly affidavits, ... [and] [a]s such, they fall within the core class of testimonial statements governed by the Confrontation Clause,” and explaining that he ”continue[d] to adhere to [his] position [which he expressed in White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992)] 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 []”) (citation and internal quotation marks omitted). The consistency described in the statements quoted in this footnote answers my colleagues’ suggestion that how the five Justices would rule on the issue presented in this case cannot "be fairly predicted.” Ante, 189 n. 17.
. Cf. United States v. Williams, 435 F.3d 1148, 1153 (9th Cir.2006) ("We need not find a legal opinion which a majority joined, but merely a legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree.”) (internal quotation marks omitted).
. This was evidence that the prosecutor emphasized to argue that "there is only one way that this blood ... got ... onto [djefendant’s shirt[:] he placed Dennis Dolinger in a headlock.”
. My colleagues retort that the FBI’s first round of testing was conducted after Stephen Watson had been arrested and charged with the crime. Ante, 189 n. 17. That is of no moment, because, it seems to me, the whole point of the targeted accusation test is to require confrontation of declarants who have a motive to tailor their statements to support the accusation against the suspect. In this case, the laboratory work actually exonerated the then-suspect Watson, and, because appellant did not become a target of the police investigation until months later, there is no basis for suspicion that the first round of laboratory work was tailored to implicate him either.
.In subsection c infra, I meet my colleagues’ other objections to this analysis.
. Cf. also United States v. Shanton, 513 Fed. Appx. 265, 267 (4th Cir.2013) (deciding case on the rationale that "[i]f this case were to go before the Supreme Court again, we believe five justices would affirm: Justice Thomas on the ground that the statements at issue were not testimonial and Justice Alito, along with the three justices who joined his plurality opinion, on the ground that the statements were not admitted for the truth of the matter assertedf ]”).
. In his opening statement, defense counsel told the jury that "no one disputes that both Mr. Jenkins'[s] blood and Mr. Dolinger’s blood were in that home.” During closing arguments, defense counsel made similar statements, including, "[n]o one ever said that Raymond Jenkins’[s] blood wouldn’t be found in the house, you all knew that going in. [Y]ou know why Mr. Jenkins was in that house and you also know that his DNA, his blood, was only in four places in that house ... the bathroom, the jeans, the back of the sweatshirt and one drop ... that may have been on the railing....” Defense counsel similarly acknowledged that the "blood on the wall sort of beneath where the steps ... were ... belongs to Raymond Jenkins[.]”
In light of appellant’s concessions, my colleagues are wrong to suggest, ante at 189 n. 17, that the facts of this case are on all fours with those in Young. In Young, the expert testified that she "had compared a DNA profile of Young created by her staff from his [known, "post-targeting”] buccal swab with [an unknown] male DNA profile derived at the lab from [the complainant’s] vaginal swabs” and determined that there was a match. 63 A.3d at 1038, 1038 n. 10. Young did not concede that the DNA on the complainant’s vaginal swabs was his, and this *201court concluded that his Confrontation Clause rights were violated, implicitly recognizing that, through cross-examination of the staff, he might have been able to expose laboratory lapses or falsehoods that led to an erroneous conclusion that there was a match. Here, by contrast, appellant conceded that his blood was on the gray shirt and everywhere else Dr. Baechtel said it was, rendering useless any cross-examination about laboratory analyst missteps with respect to appellant’s blood DNA.
. Specifically, the evidence was cumulative of the laboratory findings, reported before appellant became a suspect, that the only blood found on the crime-scene evidence belonged either to Dolinger or to a single unknown individual (who, the defense conceded at the outset of trial, was appellant).
. My colleagues in the majority imply that erroneously admitted DNA and other forensic laboratory evidence generally cannot be harmless. Ante at 193, quoting Gardner v. United States, 999 A.2d 55, 63 (D.C.2010) ("[W]e cannot underestimate the weight that juries give to forensic evidence, particularly DNA evidence.”). However, it is noteworthy in this case that the jury in appellant’s first trial, having heard the very same forensic evidence that was presented at • his second trial, was unable to reach a verdict. That fact alone belies any suggestion that the forensic evidence that was erroneously admitted in this case was so weighty as to require reversal.
. But see Den v. State, 434 Md. 88, 73 A.3d 254 (2013) ("The common point of agreement between the plurality opinion and Justice Thomas’s concurring opinion is that statements must, at least, be formalized, or have ‘indicia of solemnity’ to be testimonial. Therefore, using the Maries approach, we con-elude that the narrowest holding of Williams is that a statement, at a minimum, must be formalized to be testimonial.”).
. 285 A.2d 310, 312 (D.C.1971) (establishing the rule that no division of this court will overrule a prior decision of this court).
. There, we relied on alternative criteria for determining whether a statement is testimonial that would be accepted by the four Williams dissenters plus Justice Thomas or by the four Williams dissenters plus the Williams plurality, alternative tests that were "all we need to say about Williams ... for purposes of deciding the present case.” Young, 63 A.3d at 1044.
. As Justice Kagan observed in her dissenting opinion in Williams, "no proposed limitation commands the support of a majority” of the Supreme Court. 132 S.Ct. at 2277 (Kagan, J., dissenting); see also id. at 2261 (Thomas, J., concurring in the judgment) (opining that declarant’s primary intent "to establish some fact with the understanding that his statement may be used in a criminal prosecution” is a necessary but not sufficient criterion for deeming a statement to be testimonial).
. Similarly, in Bullcoming, 131 S.Ct. at 2717, while the Court held in (what was in large part) a 5-4 decision that a "certificate” that set out the results of a forensic laboratory analysis report and that was “created solely for an evidentiary purpose,” was testimonial, Justice Thomas declined to join in the portion of the opinion (footnote 6) that implies that the dispositive inquiry in determining whether a statement is "testimonial” is whether it had a " ‘primary purpose’ of 'establishing] or proving] past events potentially relevant to later criminal prosecution.' ” See id. at 2709, 2714, 2714 n. 6.
. In Derr, the Court of Appeals of Maryland noted that "one legal scholar, Stanford Law School Professor Jeffrey L. Fisher, has concluded that Justice Thomas’s concurring opinion, which focuses on the need for a statement to be formalized to be testimonial is 'the narrowest in terms of assessing whether forensic reports are testimonial’ and ‘will control future cases involving forensic evidence[,]’ ” citing Jeffrey Fisher, The Holdings and Implications of Williams v. Illinois, SCOTUSblog (June 20, 2012, 2:20 PM), http:// www.scotusblog.com/2012/06/the-holdingsandimplications-of-williams-v-illinois/. Id. at 116 n. 16, 73 A.3d 254.
.Cf. Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994) ("As Justice O’Connor supplied the fifth vote in Caldwell, and concurred on grounds narrower than those put forth by the plurality [whose opinion she joined], her position is controlling.”).
Notably, the Williams plurality, too, recognized the importance of Justice Thomas’s formality test, observing that
The abuses that the Court has identified as prompting the adoption of the Confrontation Clause shared the following two characteristics: (a) they involved out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct and (b) they involved formalized statements such as affidavits, depositions, prior testimony, or confessions. In all but one of the post-Crawford cases in which a Confrontation Clause violation has been found [a police interrogation case], both of these characteristics were present.
132 S. Ct. at 2242. I would say that this amounts to recognition of a "special synergistic effect of the two attributes.” Ante, 189 n. 17 (quoting Rappa v. New Castle Cnty., 18 F.3d 1043, 1060 n. 24 (3d Cir.1994)).
. Accordingly, I cannot agree with my colleagues that ”[u]nder pre-Williams case law[,] [all of] the hearsay that Dr. Baechtel relayed ... was testimonial” by virtue of the fact that ”[t]he serology and DNA testing was conducted for the primary purpose of establishing some fact relevant to a later criminal prosecution.” Ante, 191.
. Young relied on the observation that:
If the [Williams ] four-Justice plurality would deem a statement testimonial under the targeted accusation test, the four dissenting Justices surely would deem it testi*206monial under the broader evidentiary purpose test. Similarly, if Justice Thomas would deem a statement testimonial employing his formality criterion along with the evidentiary purpose test, the four dissenting Justices necessarily would deem it testimonial using the evidentiary purpose test alone.
Id. at 1043.
. Accord Tabaka v. District of Columbia, 976 A.2d 173, 175-76 (D.C.2009) (holding that a clerk’s certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it, was inadmissible over objection without corresponding testimony by the DMV official who had performed the search) (italics added).
. Cf. Williams, 132 S.Ct. at 2242 n. 13 ("Th[e]se decisions ... are to be deemed binding precedents, but they can and should be distinguished on the facts here.”).
. Cf. Roberts, 916 A.2d at 940 ("[A]ppellant could have subpoenaed and cross-examined [the laboratory analysts] if he doubted [their] findings, qualifications, or methodology ... but he did not. Nor, as mentioned earlier, did he call his own experts to dispute Dr. Baechtel's conclusions ....”) (internal quotation marks omitted).
. I do not, as my colleagues imply, argue for an "available to the accused” exemption from the demands of the "Confrontation Clause.” Ante, 191. Nor do I ignore that appellant's rights under the Confrontation Clause are "fundamental,” ante 180, or dispute that the Confrontation Clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” My point is that the views of the five Justices give us a sound reason to conclude that the critical testimony here (that Dolinger's blood was on the gray shirt and that the blood DNA of only a single unknown individual was found at the crime scene) was not testimonial, and thus that it did not implicate appellant’s Confrontation Clause (including cross-examination) rights.
. Through such questioning on cross-examination, appellant could have "actually benefited from the absence of [the laboratory analysts] ... by showing that [Dr. Baechtel] could not be sure there were no flaws in [their] work without establishing that there were any actual flaws.” Commonwealth v. Barbosa, 457 Mass. 773, 933 N.E.2d 93, 111 (2010). Instead, as I describe in the text that follows, while purporting to object to Dr. Bae-chtel’s testimony that was not based on personal knowledge about what the laboratory analysts did and found, appellant elicited Dr. Baechtel's testimony about all manner of details of the laboratory analysts’ work and invited the jury to rely on Dr. Baechtel’s answers that were helpful to the defense. To reverse appellant’s conviction now because of Dr. Baechtel's testimony would be to "promote trial and appellate gamesmanship." People v. Fackelman, 489 Mich. 515, 802 N.W.2d 552, 573 (2011) (Young, C.J., dissenting).
. See also United States v. Silvers, 374 F.2d 828, 831-32 (7th Cir.1967) (holding that a defendant’s attempt to use an "erroneously admitted line of evidence” to build his defense at trial "cures or waives the error”); Sevener v. Northwest Tractor & Equip. Corp., 41 Wash.2d 1, 247 P.2d 237, 245 (1952) ("While a party does not waive his objection to the admission of incompetent evidence by subsequently introducing evidence in self-defense to explain or rebut the incompetent evidence, he may by subsequently using it for his own purposes, or by introducing evidence similar to that already objected to, waive his objection.”); see generally 1 Kenneth S. Broun et al., McCormick on Evidence, § 55 (6th ed. 2006) ("The offering of like evidence by the Objector.").