On December 3, the Maryland Court of Appeals will hear oral arguments in two cases that address when a criminal defendant has a right to cross-examine a lab technician who tested a DNA sample in his case.
In State v. Leidig, a jury convicted James Leidig of burglary on the basis of a DNA profile constructed from a swab that police collected from the windowsill of the house. That DNA was the only evidence the state had to connect Leidig to the crime.
DNA was also the only evidence that the state had on Matthew Miller, whom a jury convicted of rape in State v. Miller. The victim in Miller’s case did not identify him from a line-up as her assailant.
At trial, both Leidig and Miller had the chance to cross-examine lab analysts, who answered questions about the procedures used in DNA testing. But neither of them got an opportunity to confront specific analysts who performed testing in their cases.
Leidig never got to cross-examine the analyst who produced the DNA profile from the biological sample on the windowsill. And Miller never got to cross-examine the analyst who both produced a DNA profile after the rape and later connected that profile to one from a known sample of Miller’s.
This issue matters because forensic science is far from perfect.
In 2016, a landmark report by the President’s Council of Advisors on Science and Technology, “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” determined that six methods of forensic analysis lacked foundational validity. Empirical studies have never shown that the procedures for techniques like hair analysis are repeatable, reproducible, or accurate.
The report did find foundational validity for DNA analysis of biological samples containing the DNA of one or two persons, the technique involved in Leidig’s and Miller’s investigations.
However, the report cautioned that the possibility of human error remains present.
And Maryland has a troubling track record when it comes to its forensic analysis. In 2007, the Innocence Project revealed that a firearms examiner who worked for both Baltimore City Police and Maryland State Police had lied on the stand about his credentials. Maryland State Police recently launched a review of 4,041 case files involving this examiner after determining that in some reports he had forged the initials of the person who was supposed to be reviewing his work.
Despite the issues presented by forensic science, courts have struggled to articulate a single test for when analysts are witnesses. Among the concerns for judges are line-drawing problems. For example, DNA testing typically requires six steps, and sometimes different analysts perform separate stages. Intuition could suggest that at least someone from the laboratory has to show up at trial for questioning, but not every single team member.
That may be simple enough as a practical matter—except that if one analyst is a witness, it is not easy to decipher why the other analysts are not also witnesses whom a defendant has a constitutional right to confront.
The Issue of ‘Formality’
For Justice Clarence Thomas of the U.S. Supreme Court, the confrontation right turns on formality: Criminal defendants have a right to cross-examine the authors of “formal” statements introduced against them at trial. Explaining his views most recently in the 2012 case Williams v. Illinois, Justice Thomas wrote that the DNA report was not formal because it did not “attest that its statements accurately reflect the DNA testing processes used or the results obtained.”
Before Leidig’s and Miller’s cases reached the Maryland Court of Appeals, the judges on the Maryland Court of Special Appeals had applied Justice Thomas’ formality test to the DNA reports. For the processes used, the court noted that the analysts in both cases had followed the Federal Bureau of Investigation’s Quality Assurance Standards for Forensic DNA Testing Laboratories.
As for the results obtained, the court noted that the reports, using slightly different language, stated that they contained the analyst’s conclusions, interpretations and opinions.
Faced with these facts, three judges from the Maryland Court of Special Appeals determined that the report in Miller’s case was formal. However, three different judges determined that the report in Leidig’s case was not formal. At a minimum, these inconsistencies demonstrate weaknesses in Justice Thomas’s formality test.
First, language that might appear formal to some judges evidently might not seem so to others. Second, whether a document appears formal may not even be the most important way to assess evidence. As Justice Elena Kagan wrote in dissent in Williams, “Justice Thomas’s approach grants constitutional significance to minutia, in a way that can only undermine the Confrontation Clause’s protections.”
A third weakness emerges when one considers a key Maryland precedent for DNA evidence, State v. Norton.
In Norton, the Maryland Court of Appeals had noted that the analyst stated on the DNA report that her conclusions were “within a reasonable degree of scientific certainty.” This phrase signified to the court that the DNA report was a formal statement. Though a similar phrase does not appear on the DNA reports in either Miller’s or Leidig’s cases, the court in Leidig’s case took the phrase’s absence as an indication that the report was not formal.
Norton was decided in 2015. In 2016, then-Attorney General Loretta Lynch released a memorandum instructing Department of Justice lawyers and analysts to stop using phrases such as “reasonable scientific certainty.” The National Commission of Forensic Science had recently advised that such phrases mislead lay juries and lack actual scientific meaning. Though the memorandum only applied to federal laboratories, forensic science more broadly has shifted away from such language.
Neither the Maryland State Police (which handled Leidig’s investigation) nor the Baltimore City Police (Miller’s) continue to use such phrases at all. Leidig’s case demonstrates that Justice Thomas’ test may force courts to make comparisons with outdated precedents.
Before the Maryland Court of Appeals, the judges may have two basic options. First, most simply, they can keep the formality test and resolve Leidig’s and Miller’s cases. Because distinguishing the reports may be difficult, the court would likely decide that both reports were formal or both were not formal.
Second, the judges could abandon formality. To Justice Samuel Alito, for example, the confrontation right applies to statements that have the primary purpose of targeting an accused individual. To Justice Elena Kagan, in contrast, the right applies to statements that have an evidentiary purpose—generally the most inclusive of the tests. However, adopting either test and jettisoning formality entirely risks offending Supreme Court precedent.
In 2018, dissenting from the U.S. Supreme Court’s denial of review in a case from Alabama, Justice Neil Gorsuch wrote that the Court needed to clarify the application of the confrontation right to forensic evidence. Only Justice Sonia Sotomayor joined him then.
Regardless of the decisions that the Maryland Court of Appeals makes in Leidig’s and Miller’s cases, petitions to the Supreme Court may be forthcoming. If Justices Gorsuch and Sotomayor can convince at least two other justices to grant review, the time may have come for more clarity on confrontation.
Andrew Hamm is a law student at the American University Washington College of Law. He formerly managed SCOTUSblog, where he still covers petitions pending before the Supreme Court. His Comment on the Sixth Amendment and forensic evidence is forthcoming in the Criminal Law Bulletin, Vol. 57 (2021).