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 2012’s Williams v. Illinois, lower courts have struggled to apply the Sixth Amendment’s Confrontation Clause to forensic evidence. This article proposes an answer. Under Justice Thomas’s formality test, a laboratory report is formal and testimonial when the analyst followed the FBI’s Quality Assurance Standards and stated conclusions, interpretations, or opinions.

The above rule follows precedent, but the bigger point is that the rule shifts the inquiry of formality from the four corners of a DNA report to the scientific process that produced the report. As currently applied, Justice Thomas’s formality test leads judges to compare reports to decide which is more formal and to reach conclusions based on minute differences.

Two Maryland decisions from 2020 illustrate the problems in Justice Thomas’s test, as well as the potential. On confrontation claims, the Maryland intermediate court reached opposite conclusions on formality when faced with similar forms. In the case rejecting the claim, the court faulted the report for not including the expression, “within a reasonable degree of scientific certainty,” as had a 2015 Maryland case. One problem is that the Department of Justice in 2016 released a memo advising analysts to drop the phrase.

Laboratories that follow the FBI’s Quality Assurance Standards produce DNA reports through a formalized process. When those reports serve as evidence at trial, defendants have a right to cross-examine the analysts who produce them. Justice Thomas’s test demands this result.

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