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 crossexamination. 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.
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

Circuit Court for Washington County

Case No. C-21-CR-19-000099

Argued: December 3, 2020
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 
2

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 
3

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.
4

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.
5

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).
6

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.).
7

(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.
8

“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.”).
9

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.
10

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.
11

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, 
12

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. 
13

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 
14

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.
15

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 
16

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 
17

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.
18

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, 
19

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
20

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 
21

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). 
22

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 
23

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).
24

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 taperecorded 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 
25

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-ofcourt 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 
26

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 crossexamination. 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 
27

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 
28

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 
29

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 
30

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 incourt 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 bloodalcohol 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,
31

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 
32

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).
33

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,”
34

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).
35

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).
36

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 
37

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 
38

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 crossexamination. 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 
39

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 
40

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

18 Craig v. State is where the term “in pari materia” was first invoked to reject an 

argument that this Court should interpret Article 21 differently than the Supreme Court has 
41

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). 
42

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.
43

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.
44

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]
45

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 fourJustice 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 
46

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 outof-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 
47

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 bloodalcohol 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. 
48

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 
49

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 
50

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 
51

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 
52

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.
53

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. 
54

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-
55

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. 
56

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 
57

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 selfincrimination 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. 
58

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.
59

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 
60

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.
61

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 crossexamination 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 
62

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.
63

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.
64

“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”).
65

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 nontestifying 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.
66

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 
67

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 
68

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.
69

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 crossexamine 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.
70

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.
APPENDIX A

A-1
A-2
APPENDIX B

B-1
B-2
B-3
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

Circuit Court for Washington County

Case No. C-21-CR-19-000099

Argued: December 3, 2020
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 
- 2 -

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 
- 3 -

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 crossexamination 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 
- 4 -

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 notsufficiently 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, 
- 5 -

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

1Citing 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 
- 6 -

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.
- 7 -

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 
- 8 -

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. 
- 9 -

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 holdingsin 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 
- 10 -

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 
- 11 -

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

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