Shifting Confrontation from Final Product to Forensic Process: Two Maryland Cases Demonstrate the Pitfalls of Justice Thomas’s Approach to What is Testimonial and the Need for a Re-Framed Formality Test

Abstract

Since the U.S. Supreme Court’s 2012 decision in Williams v. Illinois, lower courts have struggled to apply the Confrontation Clause to forensic evidence. This Article proposes a solution. Under Justice Thomas’ “formality test,” a laboratory report should be deemed testimonial whenever the analyst followed the FBI’s Quality Assurance Standards and stated conclusions, interpretations, or opinions in the report. As currently applied, Justice Thomas’ test invites formalism into Confrontation Clause jurisprudence, treats trivial details as decisive, and promotes imprecision in scientific analysis. Two Maryland decisions from 2020 illustrate these problems, reaching opposite conclusions on formality when faced with similar DNA reports. In the case rejecting the confrontation claim, the court faulted the report for not including the precedential phrase, “within a reasonable degree of scientific certainty.” But the U.S. Department of Justice released a memo in 2016 advising that analysts stop using that phrase. Today, neither the Maryland State Police nor the Baltimore City Police use it. The rule proffered in this Article follows precedent, but more importantly, it shifts the inquiry of formality from the four corners of a report to the scientific processes supporting the analyses.

Keywords: Sixth Amendment, Confrontation Clause, forensic evidence, DNA