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 present case which
had granted Mr. Derr a new trial. Consequently, unless and until the Supreme
Court clarifies the application of the Sixth Amendment’s Confrontation
Clause to evidence of the type involved in this case, Justice Thomas’s
opinion in Williams will control the application in Maryland courts of the
Federal Constitution’s right of confrontation. Moreover, under the majority
opinion today, Justice Thomas’s Williams opinion apparently will control the
application of the Confrontation Clauses in Article 21 of the Maryland
Declaration of Rights. I cannot agree with such a result.

Id. at 141-42 (Eldridge, J., dissenting). Judge Eldridge further noted that, “[i]n many cases

presenting claims that constitutional rights were violated, involving both a provision of the

Maryland Constitution and a counterpart provision of the Federal Constitution, this Court’s

opinions have separately addressed the Maryland constitutional provision. In those cases,

upon deciding that a violation of the Maryland Constitution did occur, we have either not

reached the Federal constitutional issue or have made it clear that our decision under the

Maryland Constitution was independent of our views under the counterpart provision of

interpreted the Sixth Amendment. 322 Md. 418, 430 (1991) (“The two Confrontation
Clauses are in pari materia.”) (citing Moon, 300 Md. at 359; Crawford, 282 Md. at 211;
Collins, 265 Md. at 75).

41
the Federal Constitution.” Id. at 143. Indeed, in Judge Eldridge’s view, “as Maryland’s

highest Court, we should be expected to first address a provision of the Maryland

Constitution rather than a counterpart provision of the Federal Constitution.” Id. at 144.

Nevertheless, Judge Eldridge continued, “if some reason or explanation were needed or

appropriate, the failure of the Supreme Court to render an opinion in Williams v. Illinois

would clearly justify basing our decision on Article 21 of the Declaration of Rights and not

reaching the Sixth Amendment issue.” Id. Judge Eldridge explained that there was ample

precedent for this Court to interpret a provision in Maryland’s Constitution more broadly

than the Supreme Court had interpreted a similarly worded Federal constitutional

provision. See id. at 146-48 (providing examples). Judge Eldridge would have reinstated

the Court’s prior judgment in Derr I insofar as it was alternatively grounded on Article 21.

Id. at 149.

A few days after Derr II came our decision in Cooper v. State. In that case, Cooper

was convicted of multiple sexual offenses; the forensic evidence that linked him to the

victim was DNA found on a napkin. 434 Md. at 213-14. The trial court admitted a forensic

analysis report through the testimony of an expert who supervised the analyst who had

prepared that report. Id. at 219, 221. Specifically, the author of the report (Shields)

generated two DNA profiles, one of which came from the napkin. See id. at 217. The expert

who testified at trial had reviewed Shields’s report as its technical reviewer. Id. at 221. She

testified that she reviewed Shields’s report for accuracy and concurred with its results. Id.

42
at 231. This Court concluded that the report was admissible under Maryland Rule 5-70319

as the basis for the testifying expert’s opinion. Id. at 230. As for Cooper’s confrontation

argument, we concluded that the report was nontestimonial because it lacked formality:

The Shields report … is a two page document indicating, among other
things, when the report was created, what items were tested, what
procedures were used to develop the results, and the DNA results developed
from the testing. Nowhere on either page of the report, however, is there an
indication that the results are sworn to or certified or that any person attests
to the accuracy of the results. Although [the laboratory] developed the
results at the request of the Baltimore City Police Department, the Shields
report is not the result of any formalized police interrogation. Therefore,
applying Justice Thomas’s reasoning we conclude that the Shields report
lacks the formality to be testimonial.

Id. at 236. Thus, we held that the introduction of Shields’s report was proper and did not

violate the Maryland Rules or Cooper’s federal and state constitutional rights.20 Id. at 245.

Our most recent decision in this area is State v. Norton. In that case, an analyst

prepared a “Forensic DNA Case Report” that included DNA profiles obtained from a

cutting of a ski mask worn by the assailant in a robbery, and from a buccal swab from

19
At the time, Rule 5-703(a) provided: “The facts or data in the particular case upon
which an expert bases an opinion or inference may be those perceived by or made known
to the expert at or before the hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the facts or data need
not be admissible in evidence.” This Rule was amended in 2019, but still permits an expert
to base on opinion or an inference on facts or data that were “perceived or made known to
the expert at or before the hearing,” and if such facts or data are “of a type reasonably relied
upon by experts in the particular field in forming opinions or inferences upon the subject,
the facts or data need not be admissible in evidence.” Md. Rule 5-703(a).
20
Like Derr, Cooper urged this Court to consider his state constitutional rights
independently. 434 Md. at 213. We declined to do so, stating that Cooper had “failed to
persuade us to deviate from reading the two rights in pari materia in the present case.” Id.
at 233.

43
Norton, who was a suspect in the robbery. 443 Md. at 521. The report stated that “[t]he

DNA profiles reported in this case were determined by procedures that have been validated

according to standards established by the Scientific Working Group on DNA Analysis

Methods (SWGDAM) and adopted as Federal Standards.” Id. On the second page of the

report, above her signature, the analyst stated that, “within a reasonable degree of scientific

certainty,” Norton was the “major source of the biological material obtained from” the ski

mask. Id.

At Norton’s trial, the State did not call the analyst who prepared the report. Instead,

the analyst’s supervisor testified. During the supervisor’s testimony, the State admitted the

analyst’s report into evidence over Norton’s objection on confrontation grounds. Id. Norton

was convicted of the robbery.

When the case came before this Court, we first refined our holding in Derr II

concerning how circuit courts should analyze Sixth Amendment confrontation challenges

to scientific evidence. After discussing the relevant caselaw from Crawford through Derr

II, we noted that, “[s]ince Derr II was decided, many other courts also have struggled to

interpret Williams and apply its tenets.” Id. at 542. We observed that those other courts had

ascribed “[t]he essence of the confusion” to the fact that “none of the opinions in Williams

articulated what could be described as the ‘narrowest’ ground for the opinion, nor did the

plurality and concurring opinions provide overlapping rationales.” Id. However, we found

it “noteworthy” that none of those other courts had adopted the same approach as Derr II

and solely relied upon Justice Thomas’s concurrence. Id. at 545. “In light of what [had]

44
transpired since Williams and Derr II” in those other courts, we opted to “better refine our

own analysis” from Derr II. Id. at 545-46.

Although we noted that other appellate courts “have declined to apply Williams and

have retreated, instead, to Melendez–Diaz and Bullcoming,” id. at 544-45 (citing

Commonwealth v. Yohe, 79 A.3d 520 (Pa. 2013), State v. Michaels, 95 A.3d 648 (N.J.

2014), and United States v. Duron-Caldera, 737 F.3d 988, 994 (5th Cir. 2013)), we chose

to adopt the approach taken by the District of Columbia Court of Appeals in Young v.

United States, 63 A.3d 1033 (D.C. 2013). The Young Court observed that “a statement

could be accusatory and, therefore, be testimonial under Justice Alito’s test, but without

being formal enough to satisfy Justice Thomas’s test,” while, conversely, a statement

“could be formal under Justice Thomas’s test … but without accusing or targeting a

particular suspect and, therefore, not be testimonial under Justice Alito’s opinion.” Id. at

543 (citing Young, 63 A.3d at 1043). That being the case, the Young Court took a different

approach than this Court did in Derr II:

By analogy to Marks, it can be argued that while Justice Alito’s rationale and
Justice Thomas’s rationale may not be includible within each other, the
different tests they utilize to determine whether a statement is testimonial are
subsumed within and narrower than the dissenters’ test. That is so because
Justice Alito and Justice Thomas each added an additional requirement to the
basic “evidentiary purpose” test espoused by Justice Kagan. If the four-
Justice plurality would deem a statement testimonial under the targeted
accusation test, the four dissenting Justices surely would deem it testimonial
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. It
therefore is logically coherent and faithful to the Justices’ expressed views
to understand Williams as establishing—at a minimum—a sufficient, if not a
necessary, criterion: a statement is testimonial at least when it passes the

45
 basic evidentiary purpose test plus either the plurality’s targeted accusation
requirement or Justice Thomas’s formality criterion. Otherwise put, if
Williams does have precedential value as the government contends, 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.

Young, 63 A.3d at 1043-44 (quoted in Norton, 443 Md. at 543-44).

In Norton, we determined, based on Young’s analysis, that “an approach to Williams

can be constructed by formulating a test that, if satisfied, would result in adherence to the

opinions of a majority of the Justices.” Id. at 546. Thus, we instructed Maryland courts,

“when reviewing the admissibility of forensic documents under the Confrontation Clause,

to consider first, whether the report in issue is formal, as analyzed by Justice Thomas; or,

if not, whether it is accusatory, in that it targets an individual as having engaged in criminal

conduct, under Justice Alito’s rationale.” Id. at 547 (citations omitted).

Applying that approach to the facts in Norton, we held that the Forensic DNA Case

Report was testimonial. First, as to formality, we noted that the Report “contains a

certification in the phrase ‘within a reasonable degree of scientific certainty’. The inclusion

of such language … in a DNA report identifying a match between a defendant’s profile

with that of a perpetrator is key to the acceptance of the expert’s testimony into evidence

in Maryland.” Id. at 548. Without this language certifying the result, we held, “the

testimony is without foundation.” Id. We continued:

The Report in issue, thus, is testimonial pursuant to Justice Thomas’s
concurring opinion in Williams, because it was certified and was signed by
the analyst who had performed the test, indicating that the analyst’s results
had been validated according to federal standards, even if unsworn. It may
not be within the “core class” of sworn documents, such as affidavits, to
which Justice Scalia referred in Crawford, 541 U.S. at 51–52, 124 S.Ct. at

46
 1364, 158 L.Ed.2d at 193, but it does come within “formalized testimonial
materials” to which Justice Thomas made reference and gave non-exclusive
examples.

Id. at 549. Although the formality of the report settled the question of whether it was

testimonial, we went on to explain that the report also was testimonial under Justice Alito’s

“accusatory” test, because it stated that Norton was “the major source of the biological

material obtained from [the] evidence.” Id. (alteration in original).

Because the report at issue in Norton’s case was testimonial under either Justice

Thomas’s or Justice Alito’s test set forth in their respective opinions in Williams, we held

that the trial court erred in admitting it at Norton’s trial. See id. at 553.

5. The Denial of Certiorari in Stuart v. Alabama

We also note that, in 2018, the Supreme Court denied a petition for certiorari in

another case involving a confrontation challenge to scientific evidence. Stuart v. Alabama,

139 S. Ct. 36. Justice Gorsuch, joined by Justice Sotomayor, dissented from the denial of

certiorari. That case involved a charge of driving under the influence of alcohol. The State

introduced into evidence the results of a blood-alcohol test conducted hours after the

defendant’s arrest without calling as a witness the analyst who performed the test. Id. A

different analyst testified at Stuart’s trial. Id. Using the results of the post-arrest blood-

alcohol test, the testifying expert estimated the defendant’s blood-alcohol level hours

earlier when she was driving. Id. According to Justice Gorsuch, “[t]hrough these steps, the

State effectively denied Ms. Stuart the chance to confront the witness who supplied a

foundational piece of evidence in her conviction,” violating the Sixth Amendment. Id.

Justice Gorsuch commented that the “Court’s most recent foray in this field, Williams v.

47
Illinois, yielded no majority and its various opinions have sown confusion in courts across

the country.” Id. Justice Gorsuch would have granted review in the case to provide clarity

for courts attempting to apply the Court’s Sixth Amendment confrontation jurisprudence:

“Respectfully, I believe we owe lower courts struggling to abide our holdings more clarity

than we have afforded them in this area. Williams imposes on courts with crowded dockets

the job of trying to distill holdings on two separate and important issues from four

competing opinions. The errors here may be manifest, but they are understandable and they

affect courts across the country in cases that regularly recur.” Id. at 37.

6. Resolution of This Case

Leidig asserts that the trial court violated his confrontation rights under the Sixth

Amendment and Article 21 by admitting Ms. Rollo’s report into evidence and further by

allowing Ms. Keener to convey Ms. Rollo’s results and conclusions to the jury, all without

subjecting Ms. Rollo to cross-examination. With respect to the Sixth Amendment analysis,

although Leidig acknowledges that Ms. Rollo’s report is not “accusatory” within the

meaning of Justice Alito’s plurality opinion in Williams, he argues that Ms. Rollo’s report

“is replete with indicia of formality” and is therefore testimonial under Justice Thomas’s

concurring opinion. To the extent Ms. Rollo’s report is not testimonial within the meaning

of the Sixth Amendment, Leidig contends that we should adopt a different standard under

Article 21 and hold that the admission of Ms. Rollo’s report violated Article 21.

The State responds that, under Justice Thomas’s opinion in Williams, Ms. Rollo’s

report is not testimonial. In addition, the State asserts that Ms. Keener’s status as a “peer

reviewer” of Ms. Rollo’s report takes Ms. Keener out of the realm of providing “pure

48
surrogate testimony,” as disapproved in Bullcoming. In addition, the State invokes

Maryland Rule 5-703 to sustain the admission of Ms. Rollo’s report and Ms. Keener’s

testimony about it as basis evidence necessary for the jury to understand Ms. Keener’s

expert testimony. The State further argues that we should continue to read Article 21 as

providing the same protection to a criminal defendant as the Supreme Court has identified

as inhering in the Sixth Amendment.

As discussed below, the Sixth Amendment issue in this case turns on whether Ms.

Rollo’s report is sufficiently “formal” under Justice Thomas’s concurring opinion in

Williams to qualify as testimonial. The answer to that question is unclear. Assuming

without deciding that Justice Thomas would hold that Ms. Rollo’s report is not formal and

therefore is not “testimonial” for purposes of a Sixth Amendment confrontation analysis,

we conclude it is necessary and appropriate to adopt our own standard under Article 21 of

what makes a scientific report “testimonial” – one that does not, in some cases, turn on

whether an out-of-court statement is “formal” or “solemn.”

a. Sixth Amendment Analysis

Applying the framework we adopted in Norton, we perceive that the Sixth

Amendment analysis narrows to a single question: is Ms. Rollo’s report “formal” within

the meaning of Justice Thomas’s concurring opinion in Williams? If the answer to that

question is “no,” then, as Leidig acknowledges, Ms. Rollo’s report is not “testimonial”

under the Sixth Amendment because it is not “accusatory” within the meaning of Justice

Alito’s plurality opinion in Williams. If Ms. Rollo’s report is not testimonial, then there

was no Sixth Amendment violation at Leidig’s trial. Thus, we attempt to determine whether

49
Ms. Rollo’s report is sufficiently formal to be testimonial under the Sixth Amendment.

That requires us to consider whether Ms. Rollo’s report is a “formalized statement[]

bearing indicia of solemnity.” Williams, 567 U.S. at 113 (Thomas, J., concurring).

In our view, the answer to that question is unclear. On one hand, Ms. Rollo’s report

is unsworn, and it does not certify that the results contained in the report are accurate. In

these respects, Ms. Rollo’s report differs from the reports in Melendez-Diaz and

Bullcoming that Justice Thomas agreed were testimonial because of their formality. And it

resembles the Cellmark report that Justice Thomas concluded was not testimonial in

Williams.

Although the word “certify” or “certification” need not appear in a forensic report

to render it formal for purposes of the confrontation analysis, Ms. Rollo’s report also differs

from the report at issue in Norton, which, while not an explicit “certification,” included

language stating that, “within a reasonable degree of scientific certainty,” Norton was the

“major source of the biological material obtained from” the ski mask. Norton, 443 Md. at

548. In Norton, we stated that this language was, in substance, a certification. See id. at

548, 549 n.29. We emphasized that, without this “talismanic” language certifying the

results of the report, the expert testimony concerning the DNA evidence “is without

foundation” and “cannot cross the threshold of acceptance by the judge as gatekeeper.” Id.

at 548-49. Ms. Rollo’s report does not contain any such language attesting to the accuracy

of the results to a recognized standard of certainty.

On the other hand, as Leidig observes, Ms. Rollo signed the report, which also stated

that the report “contains the conclusions, opinions and interpretations of the examiner

50
whose signature appears on the report.” In addition, Leidig relies on the language in Ms.

Rollo’s report referencing the FBI’s Quality Assurance Standards: “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.” By statute, that reference to the FBI’s Quality

Assurance Standards ensured that Ms. Rollo’s report would be admissible without the need

for a hearing to determine the general reliability of Ms. Rollo’s methodology. See Md.

Code, Cts. & Jud. Proc. (CJP) § 10-915(b)(3) (2020 Repl. Vol.) (“A DNA profile is

admissible under this section if it is accompanied by a statement from the testing laboratory

setting forth that the analysis of genetic loci has been validated by … [t]he Federal Bureau

of Investigation’s Quality Assurance Standards for Forensic DNA Testing Laboratories.”).

Leidig argues that the inclusion of such “validation” language is the type of “formality”

that makes a forensic report testimonial. And he notes that we referenced similar language

in the report at issue in Norton in the portion of the opinion in which we held the report to

be testimonial. See Norton, 443 Md. at 549 (“The Report … is testimonial pursuant to

Justice Thomas’s concurring opinion in Williams, because it was certified and was signed

by the analyst who had performed the test, indicating that the analyst’s results had been

validated according to federal standards, even if unsworn.”) (footnote omitted).

As the State correctly observes, the presence of an analyst’s signature on a scientific

report is not, by itself, sufficient to render the report formal. After all, the Cellmark report

at issue in Williams was signed by two laboratory directors, but Justice Thomas opined that

the Cellmark report was not formal for purposes of the Sixth Amendment in that the

51
signatures did not “certify the accuracy” of the testing. Williams, 567 U.S. at 111 (Thomas,

J., concurring). In addition, although the majority opinion in Bullcoming observed that the

blood-alcohol test report in that case was “‘formalized’ in a signed document,” Bullcoming,

564 U.S. at 665, Justice Thomas has since made clear his view that what made the

Bullcoming report formal was not only the presence of a signature but, crucially, its

certification of the truth of the analyst’s findings. See Williams, 567 U.S. at 112 (Thomas,

J., concurring). Moreover, although in Norton we stated that the signature of the author on

the report, “indicating that the analyst’s results had been validated according to federal

standards,” Norton, 443 Md. at 549, was a factor that contributed to the report’s formality,

we separately emphasized that different language in the report – “within a reasonable

degree of scientific certainty” – rendered it “certified.” See id. at 548.21

We find it significant that, in his concurring opinion in Williams, despite the

Cellmark report’s recitation of the analysts’ testing methods, Justice Thomas explained that

21
The State also points out that the report at issue in Cooper indicated “when the
report was created, what items were tested, what procedures were used to develop the
results, and the DNA results developed from the testing.” Cooper, 434 Md. at 236. But we
held that this was not enough to make the Shields report testimonial because “[n]owhere
on either page of the report, however, is there an indication that the results are sworn to or
certified or that any person attests to the accuracy of the results.” Id. In an Appendix to its
brief, the State has provided us with a copy of the Shields report. Similar to Ms. Rollo’s
report, the Shields report stated that “[t]he DNA profiles reported in this case were
determined by procedures that have been validated according to standards established by
the Scientific Working Group on DNA Analysis Methods (SWGDAM) and adopted as
Federal Standards.” In our opinion in Cooper, we did not specifically mention this
validation language. However, it is apparent from the Court’s conclusion that the Shields
report “lacks the formality to be testimonial,” Cooper, 434 Md. at 236, that the Court was
not persuaded the inclusion of the validation language was sufficient to render the report
testimonial.

52
the report was not formal because it did not “attest that its statements accurately reflect the

DNA testing processes used or the results obtained.” Williams, 567 U.S. at 111 (Thomas,

J., concurring). For this reason, we believe there is a substantial possibility that Justice

Thomas would hold that Ms. Rollo’s report is not sufficiently formal to be testimonial,

despite the reference to “the results reported below [having been] determined by

procedures which have been validated according to the Federal Bureau of Investigation’s

Quality Assurance Standards for Forensic DNA Testing Laboratories.” It is one thing for

an analyst to state that the procedures she used have, in the past, been validated according

to federally accepted standards. It is another for the analyst to state that she applied those

procedures correctly in all material respects in any particular case.

Nor do we believe that Justice Thomas necessarily would be persuaded that Ms.

Rollo’s reference to the FBI’s Quality Assurance Standards renders the report formal

because it was necessary to ensure the report’s admissibility under CJP § 10-915. As the

State explains, § 10-915 was enacted to allow “DNA profile evidence to be admitted

without reevaluation of the [DNA analysis] technique’s general reliability,” thereby

obviating the need for a “Frye-Reed hearing to prove that the technique has gained general

acceptance in the relevant scientific community.” Armstead v. State, 342 Md. 38, 57

(1996).22 Thus, Justice Thomas might well conclude that a report’s invocation of the

22
In Rochkind v. Stevenson, 471 Md. 1 (2020), we replaced the Frye-Reed
framework with the Supreme Court’s standard for expert testimony admissibility under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). That change has no
bearing on this case.

53
Quality Assurance Standards to comply with § 10-915(b) does not constitute, in substance,

a certification of the results in any given particular case.

In the end, we are unable to predict with any confidence how Justice Thomas would

hold regarding the formality of Ms. Rollo’s report.23

23
We reject the State’s other arguments under the Sixth Amendment for affirmance
of the admission of Ms. Rollo’s report and Ms. Keener’s testimony conveying Ms. Rollo’s
findings to the jury. First, the State contends that, because Ms. Keener “peer reviewed”
Ms. Rollo’s report, Ms. Keener was an acceptable witness to testify about Ms. Rollo’s
findings. We disagree. Ms. Keener was Ms. Rollo’s administrative reviewer, not her
technical reviewer. As we discuss further in State v. Miller, No. 24 (Md. Aug. 5, 2021), the
distinction between a technical review and an administrative review has constitutional
significance. The former is substantive enough to allow a technical reviewer typically to
qualify, in essence, as another author of the report and, therefore, able to convey the results
and conclusions of the analysis contained in the report to the jury without such testimony
constituting hearsay. The latter is a nonsubstantive review for grammar, typographical
errors, etc., that does not qualify the administrative reviewer to speak to the substance of
the report. Although the State claims that Ms. Keener’s particular review of Ms. Rollo’s
report was substantive enough essentially to qualify as a technical review, we are not
persuaded. Ms. Keener testified that she initialed each page of Ms. Rollo’s report,
“indicating [that she] agreed with [Ms. Rollo’s] results and conclusions.” This testimony
is insufficient to establish that Ms. Keener performed all of the steps that, under the FBI’s
Quality Assurance Standards, a technical reviewer must undertake. For a more detailed
discussion of those Standards, see this Court’s opinion in Miller, supra, slip op. at 3-6 and
33-35.

Second, the State contends that Ms. Rollo’s report was not hearsay. Rather, the State
argues that her report came into evidence to provide the jury with the basis for Ms. Keener’s
expert testimony. This view failed to garner the support of five Justices in Williams. See
Williams, 567 U.S. at 105-10 (Thomas, J., concurring); id. at 130 (Kagan, J., dissenting).
We decline to accept it here. To the contrary, we agree with Justice Thomas that
“statements introduced to explain the basis of an expert’s opinion are not introduced for a
plausible nonhearsay purpose.” Williams, 567 U.S. at 106 (Thomas, J., concurring).
Although Maryland Rule 5-703 allows the admission of “basis” evidence in conjunction
with expert testimony, a trial court nevertheless may not admit such evidence if doing so
will violate the Sixth Amendment or Article 21. We recognize that, in Cooper, we held that
the DNA report at issue in that case was admissible under Maryland Rule 5-703 as the basis
for the testifying expert’s opinion. 434 Md. at 230. However, we then went on to analyze
whether the admission of the report violated Cooper’s confrontation rights. See id. at 231-

54
 b. We Take Our Own Path Under Article 21.

The exercise we have just undertaken attempting to apply the Sixth Amendment

jurisprudence to the facts of this case, as well as the problems that this Court and others

have experienced in applying Williams in other cases, convince us that we should decide

this case under Article 21 based on a standard that differs from the framework for Sixth

Amendment analysis we adopted in Norton. As demonstrated above, it is debatable

whether Ms. Rollo’s report is sufficiently formal within the meaning of Justice Thomas’s

concurring opinion in Williams to qualify as testimonial. However, in our view, it is not

debatable whether Ms. Rollo’s report is testimonial. It surely is.

Suppose an eyewitness had seen a man enter the Browns’ home through a living

room window and a few days later told police in a sworn statement at the police station

that the burglar was wearing a Philadelphia Phillies number 20 shirt. Further suppose that

police eventually executed a search warrant at Leidig’s residence and discovered a Mike

Schmidt number 20 Phillies jersey in his closet. And finally suppose that, by the time of

trial, the eyewitness has died. In that hypothetical situation, surely the State (in the absence

of a prior opportunity to cross-examine the witness) would not be able to admit the

witness’s formal, sworn statement about the Phillies shirt into evidence through a police

officer witness under Justice Thomas’s interpretation of the Sixth Amendment.

36. Under the standard we adopt today, we likely would conclude, contrary to our decision
in Cooper, that the DNA report at issue in that case was testimonial. However, the report
nevertheless likely was admissible because the testifying expert was its technical reviewer.
See id. at 221; see also Miller, No. 24, slip op. at 30-35.

55
 But, if we assume that Justice Thomas would not find Ms. Rollo’s report to be

testimonial – a proposition that the Court of Special Appeals endorsed in this case – we see

the problem. In our view, it is impossible to distinguish, in substance, the hypothetical

sworn pretrial eyewitness statement to police identifying a piece of clothing worn by the

burglar from Ms. Rollo’s pretrial statement to police identifying the DNA profile contained

in the blood that the burglar left at the scene of the crime. When they made their statements,

both declarants reasonably understood that: (1) the information they gave to police would

be used to try to identify the perpetrator; and (2) if the perpetrator indeed was located and

charged, the declarants’ information might be relevant evidence in the State’s case at trial.

At bottom, we cannot endorse a standard under which Ms. Rollo’s report (and other similar

DNA reports) is not considered “testimonial” for purposes of triggering the constitutional

rights of confrontation and cross-examination. A criminal defendant in Maryland must

have the right to confront and cross-examine any witness who gives such a statement to

police.

As Judge Eldridge explained in his dissenting opinion in Derr II, this Court in

numerous instances has declined to read a Maryland constitutional provision in lockstep

with its federal constitutional counterpart where such a divergence is necessary and

appropriate to give full effect to the rights afforded under Maryland law. See Derr II, 434

Md. at 146-48 (Eldridge, J., dissenting) (citing examples). As the Court stated in Dua v.

Comcast Cable, 370 Md. 604, 621 (2002):

Many provisions of the Maryland Constitution, such as Article 24 of
the Declaration of Rights and Article III, § 40, of the Maryland Constitution,
do have counterparts in the United States Constitution. We have often

56
 commented that such state constitutional provisions are in pari materia with
their federal counterparts or are the equivalent of federal constitutional
provisions or generally should be interpreted in the same manner as federal
provisions. Nevertheless, we have also emphasized that, simply because a
Maryland constitutional provision is in pari materia with a federal one or has
a federal counterpart, does not mean that the provision will always be
interpreted or applied in the same manner as its federal counterpart.
Furthermore, cases interpreting and applying a federal constitutional
provision are only persuasive authority with respect to the similar Maryland
provision.

See also, e.g., Lupfer v. State, 420 Md. 111, 130 (2011) (“Not inconsistent then with the

phrase, ‘in pari materia,’ we have interpreted Maryland’s privilege against self-

incrimination to be more comprehensive than that contained in the federal Bill of Rights.”)

(cleaned up).

We believe this is also an instance in which we should read a Maryland

constitutional provision differently than the Supreme Court has interpreted its federal

constitutional counterpart. Our prior decision in Norton represented this Court’s best effort

to bring clarity to the Sixth Amendment analysis in the context of scientific reports.

However, Norton ultimately was an easy case to decide. The report at issue in that case

was testimonial under any of the tests put forward by the various Justices in Williams. As

is apparent from our effort to predict how Justice Thomas would rule on the question of

the formality of Ms. Rollo’s report, this case demonstrates the limitations of Norton’s

framework where a case turns on whether a scientific report that does not explicitly certify

its conclusions as sufficiently formal to be testimonial.

If Justice Thomas’s formality requirement were the holding of the Supreme Court,

we perhaps would be more reluctant to take a different approach under Article 21.

57
However, we find it significant that Justice Thomas’s formality requirement remains a

holding of one. No other Justice of the Supreme Court has ever agreed with Justice Thomas

on this point. Moreover, the Supreme Court historically has been somewhat of a moving

target in this area of law. After the Supreme Court held that the Sixth Amendment was

incorporated against the States in Pointer v. Texas in 1965, this Court and the Court of

Special Appeals began to decide confrontation challenges under the Sixth Amendment,

which seemingly provided more protection than this Court up to that point had interpreted

Article 21 to provide. Then, in 1980, the Supreme Court abruptly changed course with

Ohio v. Roberts. Maryland courts followed suit, and for the next quarter-century allowed

prosecutors to introduce testimonial statements as long as they satisfied a hearsay

exception. See, e.g., Moon, 300 Md. at 369; Wildermuth, 310 Md. at 514-20. Then, the

Supreme Court once again changed course in 2004 with Crawford, in which it overruled

Ohio v. Roberts, necessitating a corresponding shift in this Court’s confrontation

jurisprudence. And now the Supreme Court seems to be in a state of judicial gridlock when

it comes to deciding what qualifies as a “testimonial” statement in a scientific report.

Notably, the Court declined to grant review in Stuart v. Alabama in 2018, a case in which

the Court seemingly could have provided such clarity if it believed it was possible to do

so. As the highest court of Maryland, we decline to wait any longer for the Supreme Court

to provide clarity under the Sixth Amendment, where the Maryland Constitution provides

independent rights to confrontation and cross-examination – indeed, where Maryland

declared the existence of those rights before the Sixth Amendment came into existence.

58
 Our decision to chart a different course is reinforced by the recognition that we are

not the only court that has struggled to make sense of these confrontation cases in the years

that have passed since the Supreme Court decided Williams. A majority of courts have

considered Williams to be confined to its particular facts and have applied what they

believe to be a broader rule of decision from pre-Williams Supreme Court cases. See, e.g.,

State v. Sinclair, 210 A.3d 509, 523 (Conn. 2019) (stating that the Court in Williams “made

it impossible to identify the narrowest ground because the analyses of the various opinions

are irreconcilable” and instead “rely[ing] 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”); see

also Yohe, 79 A.3d 520; Michaels, 95 A.3d 648; Duron-Caldera, 737 F.3d at 994. A few

courts have, similar to Norton, incorporated both Justice Alito’s plurality opinion and

Justice Thomas’s concurring opinion in Williams into a two-part test. See Young, 63 A.3d

at 1043-44; People v. Barba, 155 Cal. Rptr. 3d 707, 724 (Cal. Ct. App. 2013); State v.

Hutchison, 482 S.W.3d 893, 910-11 (Tenn. 2016).

The problem with trying to identify a broad rule of decision from Melendez-Diaz

and Bullcoming is that there never have been five votes on the Supreme Court to decide

the minimum requirements for a scientific report to qualify as testimonial. In both

Melendez-Diaz and Bullcoming, Justice Thomas only voted in the majority because the

reports at issue were sufficiently formal, from his perspective, to be testimonial. Although

Justice Ginsburg cited the Davis primary purpose test in a footnote in her opinion for the

Court in Bullcoming, Justice Thomas declined to join that footnote. While Davis itself

59
commanded an 8-1 majority, with only Justice Thomas disagreeing based on his

formality/solemnity requirement, that majority evaporated once the Court began to

consider the application of Crawford and Davis to statements in scientific reports. The

result has been that, starting with Melendez-Diaz, the outcome of every Supreme Court

confrontation case involving scientific reports has turned on whether Justice Thomas

believed the report at issue was formal. In short, unless we are willing to allow Justice

Thomas’s theory of formality to continue to control those Maryland confrontation cases

where a scientific report is not “accusatory,” we must adopt our own standard under Article

21.

We note that we are not the first state court after Williams to decide a confrontation

challenge on an independent state law ground. In Commonwealth v. Tassone, 11 N.E.3d 67

(Mass. 2014), the Supreme Judicial Court of Massachusetts declined to answer the “more

challenging question, given the significant confusion that has been left in the wake of the

Williams decision, … whether the United States Supreme Court would conclude that [the

DNA evidence in Tassone’s case],” admitted under the circumstances of his case, “would

violate the confrontation clause.” Id. at 72. “Fortunately,” the court continued, “we need

not resolve that question because, regardless of the answer, we conclude that [the testifying

expert’s] opinion was not admissible under our common law of evidence,” id., which the

Court explained, “is more protective of confrontation rights” than the Sixth Amendment.

Id. at 73.

60
 Article 21 provides robust rights to confrontation and cross-examination that, in our

view, should not vary based on the Supreme Court’s shifting interpretations of the Sixth

Amendment’s Confrontation Clause. As Justice William J. Brennan explained:

State constitutions … are a font of individual liberties, their protections often
extending beyond those required by the Supreme Court’s interpretation of
federal law. The legal revolution which has brought federal law to the fore
must not be allowed to inhibit the independent protective force of state law
– for without it, the full realization of our liberties cannot be guaranteed.

William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90

Harv. L. Rev. 489, 491 (1977).

In State v. Collins, this Court discussed the core values of the confrontation and

cross-examination rights:

The 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. The power of cross-
examination has been justly said to be one of the principal, as it certainly is
one of the most efficacious, tests, which the law has devised for the discovery
of truth. By means of it the situation of the witness with respect to the parties,
and to the subject of litigation, his interest, his motives, his inclination and
prejudices, his means of obtaining a correct and certain knowledge of the
facts to which he bears testimony, the manner in which he has used those
means, his powers of discernment, memory, and description are all fully
investigated and ascertained. It is not easy for a witness, who is subjected to
this test, to impose on a Court or jury; for however artful the fabrication of
falsehood may be, it cannot … embrace all the circumstances to which a
cross-examination may be extended.

265 Md. at 76 (cleaned up). In rejecting the State’s argument in Collins that the trial court

had properly admitted the deposition of the principal witness against Collins, this Court

stated: “Article 21 of the Maryland Declaration of Rights guarantees a defendant in a

criminal prosecution the right ‘to be confronted with the witnesses against him.’ This

61
fundamental safeguard is also secured by the Sixth Amendment of the Federal Constitution

which was made applicable to the states through the Fourteenth Amendment.” Id. at 75. It

is telling that, even several years after Pointer made the Sixth Amendment obligatory upon

the states, this Court referred to Article 21 first and then to the Sixth Amendment.

Prior to Williams fully exposing the inability of the Supreme Court to agree on the

minimum requirements for a scientific report to be testimonial, as a practical matter it did

not make any difference whether we ascribed preeminence to Article 21 or the Sixth

Amendment. We had little reason to be concerned that the outcome of a confrontation

challenge might depend on which constitution was being invoked and interpreted. Our

attempt to apply Williams to the facts of this case has convinced us that, at least for the

time being, Article 21 should again be first in our minds, and that we should break

Williams’s gridlock as a matter of state constitutional law. Our reluctance to adhere to the

Supreme Court’s Sixth Amendment jurisprudence to decide such confrontation challenges

is increased by the Supreme Court’s apparent inability to bring needed clarity to this area

of the law. We believe that we should wait no longer for the Supreme Court to solve the

problem as it affects the criminal judicial system in Maryland.

In sum, we believe that Maryland trial courts, criminal defendants and defense

counsel, and prosecutors need and deserve clarity and predictability in this area of the law.

Adopting a standard for what makes a scientific report “testimonial” under Article 21 will

allow us to provide that clarity and predictability without concern that our jurisprudence

will change yet again when the Supreme Court eventually resolves its current impasse

concerning what makes a scientific report testimonial under the Sixth Amendment.

62
Accordingly, we shall adopt the approach Judge Eldridge suggested in his Derr II dissent

and decide this case under the independent state law ground provided by Article 21’s rights

of confrontation and cross-examination.24

c. The Standard Under Which a Scientific Report Is “Testimonial” Under
Article 21

We no longer are content to allow Justice Thomas’s formality requirement to control

a subset of Maryland confrontation challenges. As is apparent from our analysis above,

Justice Thomas’s formality requirement is difficult to apply in a case such as this one,

where an analyst does not certify the accuracy of her results, but her report references the

use of standards and methods that are generally accepted and does so in compliance with a

statute governing the admissibility of DNA reports. But our concern about Justice

Thomas’s formality requirement goes beyond the facts of this case and other cases

involving similarly worded DNA reports. There is a fundamental tension between Justice

Thomas’s demand for formality and the substantive right to confrontation. Simply put, we

respectfully believe that Justice Thomas’s approach places form over substance to the

detriment of the rights afforded under Article 21.

In her dissenting opinion in Williams, Justice Kagan advocated for application of

the Davis “primary purpose” standard to the determination whether a scientific report is

testimonial. See Williams, 567 U.S at 135 (Kagan, J., dissenting) (scientific report is

24
If the Supreme Court subsequently interprets the Sixth Amendment Confrontation
Clause to provide greater protection than we afford to a criminal defendant under Article
21, Maryland courts will, of course, be bound to apply such a new Sixth Amendment
standard.

63
“testimonial” if it was created for the “primary purpose of establishing past events

potentially relevant to later criminal prosecution – in other words, for the purpose of

providing evidence”) (cleaned up). Three other Justices, including Justice Scalia – the

architect of 21st century Confrontation Clause jurisprudence – joined Justice Kagan in

advocating for application of this standard to cases involving scientific reports. That same

group of four had earlier voiced their approval of this “primary purpose” standard in

Bullcoming. We agree with these four Justices that this “primary purpose” standard is just

as appropriate for application to scientific reports as it is to other out-of-court statements,

such as responses to unsworn police questioning. In our view, this standard furthers the

core values of Article 21’s rights to confrontation and cross-examination.

As Justice Scalia indicated in Davis, the test is an objective one. See Davis, 547 U.S.

at 822 (statements in response to police interrogation are testimonial “when the

circumstances objectively indicate that … the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution”); id. at 830

(victim’s statements in response to police questioning were testimonial where,

“[o]bjectively viewed, the primary, if not indeed the sole, purpose of the interrogation was

to investigate a possible crime”); see also Crawford, 541 U.S. at 51-52 (stating, among

various formulations of the “core class” of testimonial statements, “pretrial statements that

declarants would reasonably expect to be used prosecutorially” and “statements made

under circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial”).

64
 Thus, we hold that, under Article 21, a statement contained in a scientific report is

testimonial if a declarant 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. If the trial court concludes that a scientific report is testimonial under

this standard, the report (and/or testimony relaying the information set forth in the report

to the trier of fact) is inadmissible under Article 21 unless the declarant is unavailable to

testify and the defendant previously had the opportunity to cross-examine the declarant

concerning the report. We adopt these concepts from Justice Scalia’s majority opinions in

Crawford and Davis and Justice Kagan’s dissenting opinion in Williams as our standard

under Article 21 because, collectively, they give full effect to the substance of Article 21.

Application of this standard in the context of a scientific report will require trial

courts to consider – upon a defendant’s confrontation objection to the admission of a non-

testifying declarant’s out-of-court statement – the totality of the circumstances that shed

light, objectively, on the primary purpose of its creation. The points emphasized by Justice

Alito and Justice Thomas in their respective Williams opinions – whether the report is

“accusatory” in that it specifically targets the defendant, or whether the report is “formal”

or “solemn” in that it certifies the accuracy of the results – are factors that the trial court

should consider in making this assessment. It is difficult to conceive of a scientific report

that is accusatory or that certifies its results as accurate that would not meet the standard

we adopt today.25

25
Indeed, under Norton, which we do not overrule, such a report presumably would
also be testimonial under the Sixth Amendment.

65
 Justice Kagan alluded to other relevant factors in her dissenting opinion in the

course of comparing the Cellmark report at issue in Williams with the testimonial

documents at issue in Melendez-Diaz and Bullcoming:

The report at issue here shows a DNA profile produced by an analyst at
Cellmark’s laboratory, allegedly from a vaginal swab taken from a young
woman, L.J., after she was raped. That report is identical to the one in
Bullcoming (and Melendez–Diaz) in all material respects. Once again, the
report was made to establish “‘some fact’ in a criminal proceeding”—
here, the identity of L.J.’s attacker. [Bullcoming, 564 U.S.] at ––––, 131
S.Ct., at 2716 (quoting Melendez–Diaz, 557 U.S., at 310, 129 S.Ct. 2527).
And once again, it details the results of forensic testing on evidence
gathered by the police. Viewed side-by-side with the Bullcoming report, the
Cellmark analysis has a comparable title; similarly describes the relevant
samples, test methodology, and results; and likewise includes the
signatures of laboratory officials. So under this Court’s prior analysis, the
substance of the report could come into evidence only if Williams had a
chance to cross-examine the responsible analyst.

567 U.S. at 122-23 (Kagan, J., dissenting) (emphasis added) (some internal quotation

marks and citations omitted).

The points we have mentioned here from the various Williams opinions do not

comprise an exhaustive list of factors to be considered in determining whether a reasonable

declarant would have understood that the primary purpose for the creation of a report was

to establish past events potentially relevant to later criminal prosecution. There may well

be other factors to consider in any given case.

We also note two points that may often be important for trial courts to consider in

resolving confrontation objections under Article 21. First, as discussed in more detail in

the other confrontation case we decide today, State v. Miller, No. 24 (Md. Aug. 5, 2021),

if a testifying witness thoroughly reviewed a scientific report for substance at the time of

66
its creation – providing a “technical” review of the primary author’s results and conclusions

within the meaning of the FBI’s Quality Assurance Standards – and signed off on its

issuance, the witness may convey the information contained in the report to the factfinder

without violating Article 21. In such an instance, the report is effectively not just the work

product of the primary author, but also that of the technical reviewer who acknowledged

their agreement with the substance of the report at the time of its issuance.

Second, the State is not required to call every technician who performed some part

of the testing that led the authoring analyst(s) to state the results and conclusions contained

in the report. We agree with the recent assessment of the Supreme Court of Connecticut

(relying on an earlier decision of the New York Court of Appeals) on this question:

We observe that this opinion does not conclude that all analysts who
participate in the process of generating a DNA profile necessarily must
testify. We simply conclude that, where the generation of a DNA profile is
testimonial, “at least one analyst with the requisite personal knowledge must
testify.” People v. John, [52 N.E.3d 1114, 1126 (N.Y. 2016)]. In this regard,
we agree with the New York Court of Appeals that “the analysts involved in
the preliminary testing stages, specifically, the extraction, quantitation or
amplification stages,” are not necessary witnesses. Id. [at 1127.] Rather, “it
is the generated numerical identifiers and the calling of the alleles at the final
stage of the DNA typing that effectively accuses [the] defendant of his role
in the crime charged.” Id. Accordingly, to satisfy the confrontation clause,
the state need only call as a witness an analyst with personal knowledge
concerning the accuracy of the numerical DNA profile generated from the
preliminary stages of testing.

State v. Walker, 212 A.3d 1244, 1267 (Conn. 2019).26

26
Although the Walker Court, quoting John, referred to DNA typing “that
effectively accuses [the] defendant of his role in the crime charged,” 212 A.3d at 1267, it
does not matter whether the report is accusatory (as Ms. Keener’s was in this case) or not
accusatory (as Ms. Rollo’s report was). Where the State introduces the results of any

67
 d. Application of the Article 21 Standard to this Case

The application of the Article 21 standard we have adopted to the facts of this case

is straightforward. It is beyond dispute that Ms. Rollo provided her results and conclusions

in her report to the police for the purpose of establishing past events potentially relevant to

a future prosecution. She reported that the swabs taken from the area of the broken window

in the Browns’ home contained blood, and that the blood contained a specific DNA profile

from a single male source. These facts were relevant to a potential criminal proceeding

because they tended to identify the burglar. Ms. Rollo’s document was labeled a

“Laboratory Report”; it described the relevant samples, test methodology – including that

the methods satisfied the FBI’s Quality Assurance Standards for Forensic Testing

Laboratories – and results; and included Ms. Rollo’s signature and the initials of other

laboratory officials. The language in Ms. Rollo’s report referencing the FBI’s Quality

Assurance Standards, even if not rendering the report sufficiently formal to satisfy Justice

Thomas, strikes us as particularly meaningful. A reasonable declarant would understand

that the report’s reference to the FBI’s Quality Assurance Standards served to comply with

CJP § 10-915(b), and thereby render the report admissible at trial without a hearing to

determine the general reliability of the laboratory’s testing methods. This adds powerfully

to the understanding that a reasonable DNA analyst in Maryland would have about the

potential use of their report.

scientific testing at trial, an analyst with personal knowledge concerning that evidence must
be available for cross-examination.

68
 For all of these reasons, we believe it is beyond dispute that a reasonable declarant

would have understood that Ms. Rollo’s report was intended to provide evidence for a

potential future criminal trial. As such, under Article 21, Ms. Rollo’s report and Ms.

Keener’s testimony conveying Ms. Rollo’s findings to the jury could come into evidence

only if Leidig had a chance to cross-examine Ms. Rollo. Although the State had

subpoenaed Ms. Rollo, the State elected not to present her testimony. Because Ms. Keener

was merely Ms. Rollo’s administrative reviewer, not her technical reviewer, the State’s

introduction of Ms. Rollo’s report without calling Ms. Rollo to allow Leidig to cross-

examine Ms. Rollo, violated Leidig’s right to confrontation under Article 21. A new trial

is required.27

IV

Conclusion

For the reasons stated above, we conclude that, under Article 21 of the Maryland

Declaration of Rights, a statement contained in a scientific report is testimonial if a

reasonable declarant 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. If a trial court concludes that a scientific report is testimonial under this

27
The State does not argue that, if the trial court erred in admitting Ms. Rollo’s
report, the error was harmless beyond a reasonable doubt. And for good reason. The DNA
profile extracted from the blood on the window frame and curtain, as identified in Ms.
Rollo’s report, matched the DNA profile from Leidig’s known reference sample. That
match was the only evidence linking Leidig to the crime. Thus, without Ms. Rollo’s report
coming into evidence and/or Ms. Rollo’s results being conveyed to the jury by Ms. Keener,
no reasonable juror could have found Leidig guilty of the Brown burglary.

69
standard, the report (and/or testimony relaying the information set forth in the report to the

trier of fact) is inadmissible under Article 21 unless the declarant is unavailable to testify

and the defendant previously had the opportunity to cross-examine the declarant

concerning the report (or unless the testifying expert conducted a technical review of the

report prior to its issuance). In this case, the trial court admitted Ms. Rollo’s report into

evidence and allowed Ms. Keener to convey the results contained in Ms. Rollo’s report to

the jury, all without requiring that Ms. Rollo be available for cross-examination. This

violated Leidig’s rights to confrontation and cross-examination under Article 21. For these

reasons, we reverse the judgment of the Court of Special Appeals and order a new trial.

JUDGMENT OF THE COURT OF SPECIAL
APPEALS REVERSED AND CASE REMANDED
TO THE COURT OF SPECIAL APPEALS WITH
INSTRUCTIONS TO REMAND THE CASE TO
THE CIRCUIT COURT FOR WASHINGTON
COUNTY FOR A NEW TRIAL; COSTS TO BE
PAID BY WASHINGTON COUNTY.

70
APPENDIX A

A-1
A-2
APPENDIX B

B-1
B-2
B-3
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.
______________________________________

Concurring Opinion by Watts, J.
______________________________________

Filed: August 5, 2021
 Respectfully, I concur. Like the Majority, I would reverse the judgment of the Court

of Special Appeals (which affirmed Leidig’s convictions). I would hold that admitting into

evidence at trial a laboratory report containing information about DNA profiles from

material found at the crime scene and testimony about the report from someone who was

not the author violated the Confrontation Clause of the Sixth Amendment to the

Constitution of the United States and the right to confrontation under Article 21 of the

Maryland Declaration of Rights. In my view, this is because the report in this case,

although not accusatory, is testimonial as it is a formalized statement. In reaching this

conclusion, I would not depart from existing case law from this Court concerning the

standard for determining whether documents are testimonial. In my view, no exception to

the doctrine of stare decisis is applicable and, as such, there is no basis for departing from

our precedent.

This Court has previously held that the right to confrontation under the Sixth

Amendment is read in pari materia with the right to confrontation under Article 21. In

Derr v. State, 434 Md. 88, 105, 103 n.11, 73 A.3d 254, 264, 263 n.11 (2013)—which is

commonly known as “Derr II” to distinguish it from our earlier decision in Derr v. State,

422 Md. 211, 29 A.3d 533 (2011) (“Derr I”), cert. granted, judgment vacated sub nom.

Maryland v. Derr, 567 U.S. 948 (2012)—we expressly declined the defendant’s invitation

to hold that his right to confrontation was violated under Article 21. In that case, a forensic

DNA examiner testified that DNA taken from swabs of the alleged victim of a rape

matched DNA taken from the defendant. See Derr II, 434 Md. at 100-01, 73 A.3d at

261. The forensic DNA examiner did not conduct or supervise serological testing of the
swabs (in 1985) or DNA testing of a rape kit (in 2002), i.e., the examiner did not participate

in the testing of material or samples originally taken from the victim. See id. at 102, 73

A.3d at 262.

In Derr I, 422 Md. at 253, 29 A.3d at 559, we held that the trial court violated the

Confrontation Clause by admitting the results of the DNA tests as the basis for the forensic

DNA examiner’s expert opinion that the defendant was the source of the DNA found on

the alleged victim, but we did not reach a conclusion as to a violation of Article 21. We

mentioned Article 21 in two instances, in both of which we observed that Article 21

protected “[t]he same right” as the Confrontation Clause. See id. at 224, 216 n.3, 29 A.3d

at 542, 537 n.3 (citations omitted). In other words, in Derr I, the primary basis of our

holding was the Confrontation Clause, and this Court did not decide any matter specifically

with regard to Article 21.

In Derr I, the State filed a petition for a writ of certiorari in the Supreme Court. See

Derr, 567 U.S. 948. The Supreme Court engaged in what is commonly known as a “GVR”

by granting the petition, vacating this Court’s judgment, and remanding to this Court for

further consideration in light of the Supreme Court’s decision in Williams v. Illinois, 567

U.S. 50 (2012), which it issued the year after we decided Derr I. See Derr, 567 U.S.

948. The Williams case, in which there was no majority opinion, is the source of the

“accusatory” and “formal” tests for determining whether a forensic document is

testimonial.

On remand, we addressed the issue that we had not addressed in Derr I—

specifically, whether the right to confrontation under Article 21 was broader than the same

-2-
right under the Confrontation Clause. See Derr II, 434 Md. at 103, 73 A.3d at 263. We

observed that, “[n]oting the difference between the language in the Sixth Amendment and

Article 21, [the defendant] assert[ed] that we ‘should reinstate [our] prior decision and

judgment in this case, and plainly state that the decision is based on the independent state

ground of Article 21, as well as the Sixth Amendment.’” Id. at 105, 73 A.3d at 264 (last

alteration in original). We quoted the defendant’s contention that “principles of federalism

support an independent assessment of the rights of confrontation and cross-examination

under Article 21” and that “[t]he decision here can—and should, therefore—plainly state

that it is grounded on an independent assessment of the rights of confrontation and cross-

examination protected under the Maryland Declaration of Rights.” Id. at 104-05, 73 A.3d

at 264.

Nonetheless, we specifically declined the defendant’s invitation, stating:

Both the Sixth Amendment to the United States Constitution and Article 21
of the Maryland Declaration of Rights provide a criminal defendant in a
Maryland court with the right to confront witnesses who testify against the
defendant. Cox v. State, 421 Md. 630, 642, 28 A.3d 687, 694 (2011). In
past cases, we have read the two rights in pari materia, or as generally
providing the same protection to defendants. See Grandison v. State, 425
Md. 34, 64, 38 A.3d 352, 370 (2012); Lawson v. State, 389 Md. 570, 587 n.
7, 886 A.2d 876, 886 n. 7 (2005); State v. Snowden, 385 Md. 64, 74-75 n. 9,
867 A.2d 314, 320 n. 9 (2005). Derr has failed to persuade this Court to
deviate from that practice, and so we shall consider both rights under
the same analysis.

Derr II, 434 Md. at 103, 73 A.3d at 263 (emphasis added) (footnotes omitted). In a footnote

immediately following the last sentence of that paragraph, we elaborated:

Although there is no majority opinion of the Supreme Court in Williams, as
we indicate below, the narrowest grounds leading to the judgment of the
Court can be discerned and applied in the present case. Therefore, we

-3-
 analyze the present case applying Williams and base our decision on the Sixth
Amendment read in pari materia with Article 21 of the Maryland Declaration
of Rights.

Derr II, 434 Md. at 103 n.11, 73 A.3d at 263 n.11. We ultimately concluded that the DNA

test results at issue in Derr II were not sufficiently formalized and thus were nontestimonial,

and that, accordingly, the trial court did not violate the defendant’s right to

confrontation. See id. at 118, 73 A.3d at 272.

In a dissenting opinion that Chief Judge Bell joined, Judge Eldridge opined that the

trial court violated the defendant’s right to confrontation under Article 21. See Derr II, 434

Md. at 140-41, 73 A.3d at 285 (Eldridge, J., dissenting). A majority of this Court, however,

declined to find a violation of Article 21 on the ground that there was no reason to deviate

from our longstanding practice of reading Article 21 in pari materia with the Confrontation

Clause. See id. at 103, 73 A.3d at 263. Plainly, for us to now break from the precedent set

in Derr II, an exception to the doctrine of stare decisis would need to apply.

Both Derr II and this case involve issues as to the admissibility of the same type of

DNA reports—namely, reports that provide information about DNA that an unknown

individual left on a victim’s person or at a crime scene. In Derr II, 434 Md. at 97-99, 73

A.3d at 259-60, multiple tests were conducted, specifically, a serological exam in 1985 that

identified biological material on swabs from the alleged victim, DNA testing in 2002 of

material from the swabs that generated a DNA profile of the suspect, and eventually DNA

testing/analysis that compared the defendant’s DNA profile to those from the swabs from

the alleged victim. The defendant raised, and we rejected, challenges to the admissibility

of the 1985 serological testing and the DNA testing in 2002 and 2004. See id. at 96-97,

-4-
118-20, 73 A.3d at 258-59, 272-73. We specifically “conclude[d] that the results from the

2002 DNA test [we]re not sufficiently formalized to be testimonial.” Id. at 119, 73 A.3d

at 272. Like the 2002 DNA testing at issue in Derr II, the Laboratory Report at issue in

this case provides a DNA profile of an individual (who is not identified in the Laboratory

Report) based on biological material retrieved from a crime scene. In other words, the

same type of report that was at issue in Derr II is at issue in this case.

The body of Supreme Court precedent concerning whether a forensic document is

testimonial is in the same state that it was when we decided Derr II in 2013. Both then and

now, Williams, 567 U.S. 50, decided in 2012, was the Supreme Court’s most recent

decision on the issue. To depart from the unambiguous precedent we set in Derr II

regarding the Sixth Amendment being read in pari materia with the right to confrontation

under Article 21, an exception to the doctrine of stare decisis would need to apply.1

1
Citing Commonwealth v. Tassone, 11 N.E.3d 67 (Mass. 2014), the Majority states
that this is not the first time in which a State court has “decide[d] a confrontation challenge
on an independent state law ground.” Maj. Slip Op. at 60. As the Majority acknowledges,
however, the decision of the Supreme Judicial Court of Massachusetts in Tassone was
based on the “common law of evidence” in Massachusetts—as opposed to the Constitution
of the Commonwealth of Massachusetts. Maj. Slip Op. at 60 (quoting Tassone, 11 N.E.3d
at 72). In Massachusetts, the “common law of evidence requires that the defendant have a
meaningful opportunity to cross-examine [an] expert about her opinion and the reliability
of the facts or data that underlie her opinion.” Tassone, 11 N.E.3d at 73 (citations
omitted). In Tassone, id. at 74-75, the Supreme Judicial Court of Massachusetts held that,
“[b]ecause the defendant [] had no meaningful opportunity for cross-examination, the
admission of [an expert]’s opinion violated the right to confrontation provided by [the]
common law of evidence.” (Citations omitted).
Significantly, in Tassone, id. at 76 n.3, the Supreme Judicial Court of Massachusetts
observed that, before Williams, 567 U.S. 50, it had stated in a previous case “that the
protection provided by” Article 12 of the Massachusetts Declaration of Rights—under
which a defendant has the right “to meet the witnesses against him face to face”—“is

-5-
 After the Supreme court’s decision in Williams, we set forth a test for determining

whether a forensic document is testimonial. In State v. Norton, 443 Md. 517, 547, 117

A.3d 1055, 1073 (2015), we held that a forensic document is testimonial under Williams

where it is either formal or accusatory. Specifically, we stated that, in determining whether

reports are testimonial, trial courts should “review[] the admissibility of forensic

documents under the Confrontation Clause, to consider first, whether the report in issue is

formal, as analyzed by Justice Thomas,” or, if not, whether it is accusatory as described by

Justice Alito. Norton, 443 Md. at 547, 117 A.3d at 1073. To the extent that Williams

created confusion or made it difficult for State courts to apply the definition of the term

“testimonial,” we ended the allegation as to confusion or difficulty in Maryland with

Norton by adopting the test we distilled from Williams. There have not been any

significant changes in the law or the facts in the six years since we decided Norton to justify

a decision that “we should decide this case under Article 21 based on a standard that differs

from the framework for Sixth Amendment analysis we adopted in Norton.” Maj. Slip Op.

at 55.

In fact, we have a history of reading Article 21 in pari materia with corresponding

federal constitutional provisions. In Grandison v. State, 425 Md. 34, 64-65, 38 A.3d 352,

370 (2012), as we did later in Derr II, 434 Md. at 103, 73 A.3d at 263, we declined a

coextensive with the guarantees of the Sixth Amendment[.]” (Cleaned up). The Supreme
Judicial Court of Massachusetts stated that it would “leave open the question whether that
remains true after Williams.” Tassone, 11 N.E.3d at 76 n.3. The Supreme Judicial Court
of Massachusetts has apparently not yet answered that question. In Maryland, after
Williams, this Court answered that question in Derr II.

-6-
defendant’s request to depart from precedent under which we have read the right to

confrontation under Article 21 in pari materia with the Confrontation Clause of the Sixth

Amendment. In multiple other cases, we have reiterated that we read the two constitutional

provisions in pari materia. See, e.g., Peterson v. State, 444 Md. 105, 122 n.4, 118 A.3d

925, 934 n.4 (2015); Miller v. State, 435 Md. 174, 197-98, 77 A.3d 1030, 1043-44

(2013). In Lodowski v. State, 307 Md. 233, 247, 245, 513 A.2d 299, 307, 306 (1986), we

declined a defendant’s request to read the right to counsel under Article 21 more broadly

than the same right under the Counsel Clause of the Sixth Amendment. In multiple other

cases, we have reiterated that we read the two constitutional provisions in pari

materia. See, e.g., State v. Walker, 417 Md. 589, 604 n.8, 11 A.3d 811, 820 n.8 (2011);

State v. Campbell, 385 Md. 616, 626 n.3, 870 A.2d 217, 223 n.3 (2005). If we develop a

new basis for departing from the practice of reading Article 21 in pari materia with

corresponding federal constitutional provisions whenever we believe it to be “necessary

and appropriate[,]” Maj. Slip Op. at 56 (citing Derr II, 434 Md. at 146-48, 73 A.3d at 288-

90 (Eldridge, J., dissenting)), we establish worrisome precedent that could affect our case

law in other areas and our adherence to the principle of stare decisis in general.

Here, the new standard that the Majority sets forth is as follows: “[U]nder 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

-7-
past events potentially relevant to later criminal prosecution.” Maj. Slip Op. at 3.2 The

Majority’s interpretation of Article 21 does not require that a report contain any indicia of

formality or be accusatory to be considered testimonial, but rather specifically requires that

the author would reasonably have understood that the purpose of the report was to

document events that may be relevant to a later criminal prosecution.

In reaching its decision, the Majority departs from the principle of stare decisis and

sets forth its own standard for determining whether a report is “testimonial” because the

Majority decides that it is “necessary and appropriate” to do so. Maj. Slip Op. at 56 (citing

Derr II, 434 Md. at 146-48, 73 A.3d at 288-90 (Eldridge, J., dissenting)). Yet, in Derr II,

434 Md. at 103, 73 A.3d at 263, we explicitly refused to depart from our longstanding

practice of reading the right to confrontation under Article 21 in pari materia with the

Confrontation Clause. Since we decided Derr II eight years ago in 2013, and Norton in

2015, nothing has changed with respect to the law and nothing is alleged to have changed

with regard to the facts and circumstances concerning DNA analysis to satisfy an exception

to the principle of stare decisis.

In the past, there may have been times when we sanctioned a change in case law

where, arguably, reasonable minds could differ as to whether the principle of stare decisis

was adhered to, i.e., whether there were sufficient grounds to apply an exception to the

principle. In this case, though, in the majority opinion, there is no mention of the principle

2
It appears that the accusatory prong of the current test for testimonial material as
set forth in Norton would be subsumed by the standard that the Majority sets forth. In this
case, however, there is no issue as to whether the Laboratory Report was accusatory.

-8-
of stare decisis and no explanation of whether an exception to the principle applies. I think

that we should adhere to the principle of stare decisis in determining whether to make such

a change and not sacrifice the integrity of our case law that the principle of stare decisis

fosters.

To be sure, this may be a close case in terms of utilizing existing law to determine

whether a report is testimonial. That, however, should not preclude us from making a

decision under existing law, namely, our holdings in Derr II and Norton. This Court should

not simply determine that the result under existing law is unclear and set forth a different

standard for determining whether a report is “testimonial.” My view with respect to the

majority opinion might be different if this Court had not already reviewed the Supreme

Court’s decision in Williams, declined to develop a different standard for purposes of

Article 21 in Derr II, and set forth the standard we thought appropriate in our holding in

Norton. In other words, my view might be different if we were writing on a clean slate.

Under existing law, good arguments can be made in favor of the conclusion that the

Laboratory Report is nontestimonial and also in favor of the result, that I would reach, that

the report is sufficiently formalized to be testimonial. Like the Majority, I would conclude

that it was not permissible for the circuit court to admit the Laboratory Report into evidence

but for different reasons. In this instance, the Laboratory Report was made at the request

of a police department and states that it contains the conclusions of the forensic scientist

who signed it, and that the DNA analysis results “were determined by procedures which

have been validated according to the Federal Bureau of Investigation’s Quality Assurance

Standards for Forensic DNA Testing Laboratories.” This attestation causes the Laboratory

-9-
Report to be similar to DNA reports that have been determined to be formalized statements

in prior cases before the Supreme Court and this Court and dissimilar from those that have

been determined not to be formal.

Here, at a minimum, the author of the report assures or certifies that the results were

obtained using procedures approved under FBI quality assurance standards for DNA

testing. A fair inference from the statement, though, is that the author of the report is

assuring that the test results are valid under FBI DNA laboratory testing standards. Unlike

with the report in Williams, by declaring that the results 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 author of the

Laboratory Report in this case essentially certifies that the results in the report are correct.

See Williams, 567 U.S. at 111-12 (Thomas, J., concurring). Unlike the report in Derr II,

434 Md. at 119, 73 A.3d at 272-73, where there were “[n]o statements . . . anywhere on the

results attesting to their accuracy or that the analysts who prepared them followed any

prescribed procedures[,]” the report in this case contains just such a statement.

The Laboratory Report in this case is similar to the Forensic DNA Case Report in

Norton. There, this Court held that the phrase “‘within a reasonable degree of scientific

certainty’” constituted a certification that rendered the Forensic DNA Case Report in

Norton formal and thus testimonial. Norton, 443 Md. at 548, 117 A.3d at 1073. To be

sure, the Laboratory Report in this case does not state that the results are accurate to a

reasonable degree of scientific certainty, which is the standard for admission at trial for

expert testimony. But, the Laboratory Report offers the statement of its author that the

- 10 -
results of the report were determined under applicable professional standards. This

statement or certification assuring the validity of the results is a formalization of the report

made in contemplation of use of the report in a criminal prosecution. Permitting the report

to be admitted into evidence without affording Leidig the opportunity to cross-examine its

author about the statement that the report’s results were obtained under procedures that met

FBI standards and about the report’s results would violate the Confrontation Clause and

Article 21 of the Maryland Declaration of Rights.

The conclusion that the Laboratory Report is formal is consistent with this Court’s

guidance in Norton, id. at 549 n.29, 117 A.3d at 1074 n.29, that “requiring such magic

words as ‘certification’ would elevate form over substance[.]” (Citations omitted). In sum,

using existing case law, I would hold that the Laboratory Report is testimonial because

although it is not accusatory, it is a formalized statement that was expected to be used in a

criminal prosecution and the admission of the Laboratory Report into evidence and

testimony concerning the report from someone who was not the author violated the

Confrontation Clause and right to confrontation under Article 21.

For the above reasons, respectfully, I concur.

- 11 -
The correction notice(s) for this opinion(s) can be found here:

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/19a20cn.pdf