Maryland Court of Appeals Announces Standard for Whether Scientific Evidence Is ‘Testimonial’ for Confrontation Right Purposes Under Article 21 of Maryland Declaration of Rights
by Douglas Ankney
Citing lack of clear guidance from the U.S. Supreme Court, the Maryland Court of Appeals (“MCA” or “Court”) announced that issues of confrontation of witnesses will be determined under Article 21 of the Maryland Declaration of Rights (“Article 21”) and further announced the standard for determining whether a scientific report is “testimonial” under Article 21.
Molly Rollo of the Biology Unit at the Pikesville laboratory conducted serological and DNA analysis on two swabs taken from the scene of a burglary. She prepared a “Laboratory Report” that was prefaced with the following 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.”
Rollo concluded the swabs contained human blood and “[a] DNA profile from one male contributor was obtained.” Rollo signed the Laboratory Report as “Examiner.” She sent the DNA profile to the National DNA Index System (“NDIS”) database.
Sergeant David Haugh was notified that an “NDIS hit” matched James Matthew Leidig. Haugh obtained a warrant to swab Leidig for a reference DNA sample and sent the swab to the Biology Unit.
Tiffany Keener prepared a report similar to Rollo’s. Keener concluded the DNA profile from Leidig matched the DNA profile produced by Rollo to the degree that “[b]ecause 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 profile.”
At Leidig’s trial for burglary, Keener testified as the State’s only expert witness. When handed Rollo’s Laboratory Report, she testified her initials appeared at the bottom as the “administrative reviewer”—indicating she agreed with Rollo’s results and conclusions. Counsel objected on confrontation grounds, saying “the State has the wrong expert here.” The objection was overruled.
The jury convicted Leidig, and he appealed. He argued, inter alia, that his confrontation rights were violated when DNA evidence was admitted through a witness who did not perform the DNA analysis on the swabs from the crime scene. Relying on Williams v. Illinois, 567 U.S. 50 (2012), the Court of Special Appeals (“COSA”) affirmed. The MCA granted Leidig’s petition for certiorari to specifically address the critical issue of the meaning of “testimonial” in the context of scientific evidence, a question federal and state courts have grappled with for decades.
The Court observed “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.” The Court pointed out that the Sixth Amendment does not expressly reference a right to confront witnesses under oath; rather, it states that the accused has a right “to be confronted with the witnesses against him.” In contrast, the Court observed that Article 21 grants the additional right to “examine witnesses for and against him under oath.”
In light of the fact Maryland courts have historically relied upon both the Sixth Amendment and Article 21 when addressing confrontation right issues, to understand the rationale for the Court’s ruling in the present case, it engaged in a thorough discussion of the history and analysis of the right to confrontation under both the Sixth Amendment and Article 21.
Until 1965, the Sixth Amendment’s Confrontation Clause did not apply in state trials. See Pointer v. Texas, 380 U.S. 400 (1965). Prior to Pointer, “the nature, scope, and meaning of the right to confrontation in Maryland developed solely from the opinions of the Court of Appeals in the context of Article 21.” Gregory v. State, 391 A.2d 437 (Md. Ct. Spec. App. 1978). In Jones v. State, 109 A.2d 732 (Md. 1954), the MCA ruled that there wasn’t an Article 21 violation where the State relied on a hospital record to prove a critical fact, stating the right of confrontation does not apply to documentary evidence….”
But after Pointer made the Sixth Amendment’s Confrontation Clause applicable to the states via the Fourteenth Amendment, Maryland’s courts began analyzing confrontation issues under the Sixth Amendment while stating Article 21 provides the “same right.” Moon v. State, 478 A.2d 695 (Md.1984). In Pointer, a witness named Phillips had testified at a preliminary hearing, and a transcript of that testimony was introduced at Pointer’s criminal trial. The Supreme Court of the United States (“SCOTUS”) ruled that “its introduction ... amounted to a denial of the privilege of confrontation guaranteed by the Sixth Amendment” where the declarant (Phillips) did not testify at trial and Pointer did not have a prior opportunity to cross-examine him. Thereafter, the Maryland state courts began ruling that certain types of documentary evidence were subject to the right of confrontation. SeeState v. Collins, 288 A.2d 163 (Md. 1972).
But then in 1980, SCOTUS in Ohio v. Roberts, 448 U.S. 56 (1980), changed course, permitting the introduction of documents when the declaring wasn’t available for cross-examination at trial if the out-of-court statement bore “adequate indicia of reliability.” The MCA observed that after Roberts, Maryland courts once again followed in the steps of SCOTUS, altering their jurisprudence to permit introduction of documents containing hearsay if there was adequate indicia of reliability as per Roberts.
Two decades later SCOTUS overruled Roberts in Crawford v. Washington, 541 U.S. 36 (2004). The Crawford Court determined that the “primary object” of the Confrontation Clause is “testimonial hearsay.” Examples include affidavits, custodial interrogations, and statements that were made under circumstances that would lead an objective witness to believe that the statement would be available for later use at trial. Id.
Then in Davis v. Washington, 547 U.S. 813 (2006), SCOTUS consolidated two cases involving statements to law enforcement made by alleged victims of domestic abuse. The statements were introduced at trial without the victims being present for cross-examination. One statement was the recording of the phone call made by the victim to the 911 operator seeking police assistance, and the other was the victim’s statement to an officer investigating the case. SCOTUS held that the former statement did not offend the Confrontation Clause because the victim was seeking police assistance during an ongoing emergency situation, i.e., she was not acting as a witness. In contrast, SCOTUS ruled that the latter statement did violate the Confrontation Clause because, unlike in the former situation, there was no active emergency, i.e., the primary purpose of the interrogation of the victim was to investigate a possible crime.
The majority opinion in Davis summarized the rationale 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.”
SCOTUS subsequently issued several opinions addressing the meaning of “testimonial” in the context of scientific evidence, but the MCA explained that they simply led to confusion in many courts across the country and briefly discussed a couple of those SCOTUS opinions.
In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), SCOTUS held that admission of a certificate of analysis offered to prove a tested substance was an illegal drug violated the Confrontation Clause because the analysts who created it were not present to testify. In Bullcoming v. New Mexico, 564 U.S. 647 (2011), SCOTUS held that introduction of a certificate of analysis concluding the defendant’s blood alcohol content exceeded the legal limit violated the Confrontation Clause notwithstanding the fact that an expert familiar with the procedures used in the analysis testified. The expert was not the person who created the certificate of analysis.
Then in Williams v. Illinois, 567 U.S. 50 (2012), SCOTUS issued a fractured and somewhat confusing opinion. Four Justices concluded that the Confrontation Clause was not violated where an expert who did not conduct the DNA analysis testified to the accuracy of the report of the analysis because testimony about the DNA profile was not “offered to prove the truth of the matter asserted.” Id. Justice Thomas wrote an opinion concurring in the result, but he arrived at that holding on different grounds. The remaining four Justices dissented. In the years that followed, the MCA and other courts struggled to determine the correct standard in the wake of the confusion created by Williams.
Turing to the instant case, since there is no readily discernible standard articulated by SCOTUS with respect to the Confrontation Clause under the Sixth Amendment, the MCA decided the confrontation issue under Article 21 and adopted its own standard under Article 21 for what makes a scientific report “testimonial.”
The Court announced: “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.”
The Court instructed: “Application of this standard in the context of a scientific report will require trial courts to consider—upon a defendant’s confrontation objection to the admission of a non-testifying declarant’s out-of-court statement—the totality of the circumstances that shed light, objectively, on the primary purpose of its creation.” The Court provided further detailed instructions for courts to consider when applying the newly announced standard.
Applying this new standard to the present case is “straightforward,” the Court stated. It’s indisputable that Rollo provided her results and conclusions contained in the report for the “purpose of establishing past events potentially relevant to a future prosecution,” according to the Court. The Court explained that a reasonable declarant would have understood that the report was intended to be used for such purpose, and as such, it could only be introduced into evidence if Leidig had an opportunity to cross-examine Rollo. Consequently, the Court held that the introduction of Rollo’s report violated Leidig’s right to confrontation under Article 21.
Accordingly, the Court reversed the judgment of the COSA and remanded to that court with instructions to remand to the circuit court for a new trial. See: Leidig v. State, 256 A.3d 870 (Md. 2021).
Editor’s note: The Court engages in a notably thorough examination of modern right to confrontation jurisprudence in the context of scientific evidence under both the Sixth Amendment and Article 21. Reading the full opinion is highly recommended for anyone interested in the topic.
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