Morten v. State, No. 215 of the 2017 Term, Opinion by Moylan J.

     UNEXCEPTIONABLE FACTUAL BACKGROUND – HEARSAY TO THE

RESCUE, OSTENSIBLY – INITIAL FOCUS – “MY GOD, IT’S A COBRA!” –

PRESENT SENSE IMPRESSION – AN ALTERNATIVE HOLDING: THE

TRUEALLELE MODALITY OF DNA IDENTIFICATION – THE PRECISE

TARGET IN THE CROSSHAIRS: TRUEALLELE SPECIFICALLY, NOT DNA

GENERALLY – ADMISSIBILITY VERSUS WEIGHT – “A ROSE BY ANY OTHER

NAME . . . ” – THE PRETRIAL HEARING ON ADMISSIBILITY – THE

PRESUMPTIVE SIGNIFICANCE OF THE HEARING – QUALIFYING AND

DISQUALIFYING AN EXPERT WITNESS – A HAMSTRUNG DEFENSE –

THEORETICAL      RELIABILITY     VERSUS      AD   HOC     RELIABILITY   –

QUANTITATIVE     INSUFFICIENCY     OF   THE    SAMPLE     –   TWO   MINOR

CONTRIBUTORS OR MORE – RELIABILITY IS BOTH A CONTINUUM AND

VARIOUS POINTS ON THE CONTINUUM
Circuit Court for Baltimore City
Case No. 116123014
                                                                                                  REPORTED

                                                                                     IN THE COURT OF SPECIAL APPEALS

                                                                                                OF MARYLAND

                                                                                                     No. 215

                                                                                            September Term, 2017
                                                                                   ______________________________________

                                                                                            DELVONTA MORTEN

                                                                                                        v.

                                                                                           STATE OF MARYLAND
                                                                                   ______________________________________

                                                                                        Friedman,
                                                                                        Beachley,
                                                                                        Moylan, Charles E., Jr.
                                                                                             (Senior Judge, Specially Assigned),

                                                                                                     JJ.
                                                                                   ______________________________________

                                                                                             Opinion by Moylan, J.
                                                                                   ______________________________________

                                                                                        Filed: September 4, 2019




 Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.



                            2019-09-04 14:07-04:00




Suzanne C. Johnson, Clerk
       The two contentions raised by the appellant have one thing in common. They each

engage the law of evidence. The first is on familiar turf, however, as we look again at two

of the firmly rooted exceptions to the Rule Against Hearsay—the Excited Utterance and

the Present Sense Impression. The second contention, by contrast, is at the far and

unfamiliar cutting edge of the rapidly evolving science of DNA identification, to wit, at the

newly developed TrueAllele testing modality. The appellant, Delvonta Morten, was

convicted in the Circuit Court for Baltimore City in a jury trial of first-degree murder and

various handgun offenses. On this appeal, he raises the two contentions:

       1. that three separate instances of inadmissible hearsay evidence were
          erroneously admitted against him; and

       2. that he was erroneously precluded from adequately challenging the DNA
          test results introduced against him.

                       Unexceptionable Factual Background

       Each of these contentions, as we shall fully develop infra, is a strong and persuasive

challenge to the prosecution’s case. To illustrate the dispositive significance of the suspect

evidence in each of the two challenges, we will initially set out just how lackluster a case

this would have been in terms of its legal sufficiency without the infusion of the challenged

hearsay and minus the arguably dubious DNA test result. What would have been the quality

of the case to which no exception could have been taken? Would it have been legally

sufficient to have supported the verdict? If necessity begets admissibility, of course, the

State’s case would have been a lock.

       On September 21, 2015, at shortly after 5:00 p.m., Kevin Cannady was killed by a

single gunshot to the back of his neck. The autopsy revealed that the bullet shattered the
upper spinal column before lodging in the left cheekbone. The bullet itself was too mangled

to permit any ballistic comparisons. The police received the emergency call at 5:11 p.m.

and arrived at the scene at 5:15 p.m. The shooting scene was in the 4900 block of Cordelia

Avenue immediately north of where it T-intersects with Reisterstown Road. A large crowd

had gathered. No one at the scene had been an eyewitness to the shooting.1 Just at the

intersection of Cordelia Avenue and Reisterstown Road, there are located a small grocery

store and a car dealership. A surveillance camera from outside the car dealership showed a

person wearing a black hoodie and grey pants approaching the victim from behind and

shooting him, before running up Cordelia Avenue alongside another person dressed in a

burgundy jacket.

       Approximately half an hour after the shooting, the police recovered “at the bottom

of a tree stump” in the alley behind 4907 Cordelia Avenue, about a block from the shooting

scene, a revolver. The firearms inspector was unable to confirm that the bullet taken from

Cannady’s left cheekbone had been fired from the .38 caliber Smith & Wesson revolver

recovered by the police from the alley. They could say, however, that the bullet was a .38

or .357 caliber bullet, which showed “similar class characteristics” with the revolver.

       It was two months later that the police first interviewed the appellant. A surveillance

video from inside the grocery store showed a number of persons inside the store on


       1
         Two days later, a Floyd Montague reported to the police that he had given Kevin
Cannady a ride and dropped him off on Cordelia Avenue just where it T-intersects with
Reisterstown Road. Cannady had just gotten out of the car and was walking toward its rear
when Montague, still sitting behind the steering wheel, heard a shot. He looked around and
saw Cannady lying on the ground. He immediately drove away and did not, at that time,
report anything to the police.

                                              2
September 21, 2015, at about 4:05 p.m. One of them was wearing a black hoodie. At the

November 22, 2015, interview, the appellant acknowledged that he was the person in the

grocery store wearing the black hoodie. The outdoor surveillance camera also showed a

person wearing a black hoodie walking past the store at 5:01 p.m. and turning into Cordelia

Avenue at 5:08 p.m.

       That was the State’s case without the challenged evidence. At that point, there was

no firm linkage between the shooting and the revolver found in an alley about a block away.

But for wearing a hoodie, there was no linkage between the appellant and the shooting.

There was absolutely no linkage between the appellant and the revolver found in a backyard

in the alley. The appellant would have walked.

                        Hearsay To The Rescue, Ostensibly

       The bare bones of the State’s legally insufficient case, however, were soon fleshed

out by three rapid-fire infusions of hearsay evidence. These came from an unidentified

female caller as anonymous calls to 911 at 5:35 p.m., at 5:41 p.m., and at 5:49 p.m. in the

near aftermath of the shooting.

       As out-of-court assertions offered, and ultimately received, for the truth of the things

asserted, these anonymous calls were self-evidently hearsay. The appellant objected to

each. Each was admitted, however, as a well-recognized exception to the Rule Against

Hearsay, the first as an Excited Utterance, the second and third as Present Sense

Impressions.

       Call No. 1 came into 911 at 5:35 p.m., approximately 35 minutes after the shooting.

It was accepted as an Excited Utterance. Its substance was as follows:


                                              3
      Operator:     What’s the emergency?

      Caller:       I just wanted to report that I saw two guys come down the alley.
                    I heard somebody got shot right here on Reisterstown Road and
                    I saw two guys running up the alley. The alley is on Arcadia.
                    It’s right next to 3716[.] And they came down the alley, and
                    it’s about the third house to the left. It’s two empty yards, and
                    they threw -- they put something down in there. And one guy
                    had on a black hoodie with white on it, like a skeleton design
                    or something, and the other guy had a -- sort of a burgundy
                    jacket, but not a hoodie and --

      Operator:     Both black males?

      Caller:       Yes. Young, about 16/17.

      Operator:     Okay. And you said it’s the alleyway near 3716 Arcadia.

      Caller:       Yeah.

      Operator:     Okay, I will have someone to check out that location. You’re
                    not quite sure if it’s a gun or something or you just know that
                    they threw something back in there?

      Caller:       I just heard a shot and then I saw them running.

(Emphasis supplied).

      The second call followed, a bare six minutes later, at 5:41 p.m. This hearsay

declaration was accepted as a Present Sense Impression.

      Caller:       Well I just wanted you to tell the police. They checking the
                    rear[.] [T]hey going the wrong way. It’s on Cordelia.

      Operator:     Okay. So where was the police called?

      Caller:       Oh, it’s -- they were called because of the shooting. It was a
                    shooting around near Reisterstown Road somewhere.

      Operator:     Okay. You don’t know what cross street or which block?

      Caller:       I think -- no, I don’t. It must have been around there about the


                                            4
                   4900 block of Reisterstown Road but they looking in the wrong
                   direction.

      Operator:    Okay. Are they looking for anybody?

      Caller:      They’re looking for a gun.

      Operator:    Okay . . . did you see where anybody put the gun?

      Caller:      They . . . it was two guys. They threw it, more like buried it, in
                   the houses going along the rear. The police done came down
                   the alley, but they turned to the right. It’s the rear of the houses
                   on Cordelia.

      Operator:    Do you know what block of Cordelia?

      Caller:      Forty-eight and 49. It’s right there at the corner of Arcadia and
                   Cordelia.

      Operator:    Okay Arcadia at Cordelia, correct?

      Caller:      Yes. It’s a big white truck. [T]hey need to come down the alley
                   where the truck is right there parked[.] These -- people looking
                   in the wrong direction[.] She’s in the wrong yard.

      Operator:    And so is that police? It’s a police officer?

      Caller:      The female officer just went in there.

      Male Voice: What are you talking about? Which block of Cordelia is it?

      Caller:      (To another party) Over there. That’s the 49.

(Emphasis supplied).

      The third and final anonymous call came at 5:49 p.m. It was also admitted as a

Present Sense Impression.

      Caller:      They looking in the wrong direction. [W]ou1d you tell those
                   police officers . . . . They just left the alleyway where the gun
                   is.



                                            5
       Operator:     Okay. [S]o where were they at?

       Caller:       They came down the alley on the side of the 3716 Arcadia.
                     That’s the alley they should be looking down.

       Operator:     3716 Arcadia?

       Caller:       Yeah, they have a back, but the houses on Cordelia face up that
                     way. The backs face the backs. All I can say is that they left
                     out the alley where the guns, whatever it is they put it down
                     there. They need to come down the alley and look at the empty
                     houses on the left. It’s a vacant house with white [b]eige siding.

       Operator:     So, it’s a house with beige siding?

       Caller:       Yeah, look in that area. That’s where the gun is. That’s where
                     they put something down there, two guys. Okay. They’re
                     looking in there now. When I see those suspects, I’ll call back.

(Emphasis supplied).

                                       Initial Focus

       We direct our attention to the first of the anonymous 911 telephone calls, the one

admitted into evidence as an ostensible Excited Utterance. This by far was the most

important of the three hearsay declarations. It is, indeed, dispositive of this appeal.

       This out-of-court assertion narrated a large part of the trial evidence. The declarant

either heard a gunshot or “heard somebody got shot” and shortly thereafter “saw two guys

running up the alley.”2 The declarant established that the person in the hoodie and the



       2
          In this respect, the assertion is arguably ambiguous. Initially, it gives the
impression that the declarant heard a report from someone that there had been a shooting:
“I heard somebody got shot right here on Reisterstown Road.” Later, however, the
declarant gave a seemingly different version: “I just heard a shot.” Ipso facto, there is
thereby illustrated the value, indeed the necessity, of being able to cross-examine the source
of important information and to clarify what needs clarification.

                                              6
person in the burgundy jacket were accomplices, as they fled the crime scene together. The

declarant gave a description of how the two assailants were dressed, one wearing “a black

hoodie with white on it, like a skeleton design or something,” and the other wearing “sort

of a burgundy jacket, but not a hoodie.” This was by far the best description of the

assailants. It was the declarant, moreover, who described the fugitives as “black males”

and as “[y]oung, about 16/17.” It was the declarant who asserted that the fugitives had

thrown something (it turned out to be a .38 revolver) into a backyard in the alley.

       Had this declarant been on the witness stand and under oath, she would have been

unquestionably the star witness, the indispensable witness, of the entire State’s case. This

substantive evidence was absolutely critical. By contrast, any problem with the two Present

Sense Impressions is relatively small bore. Our focus is on the ostensible Excited

Utterance.

                               “My God, It’s A Cobra!”

       The late Irving Younger, a nationally recognized CLE lecturer on the law of

evidence, characterized an Excited Utterance in the following terms: “You will

immediately recognize an Excited Utterance when you hear one because It begins with

‘My God’ and ends with an exclamation point!” The caselaw, albeit more

prosaically, fully agrees.

       The starting point for analysis is Maryland Rule of Procedure 5–802. Hearsay rule.

              Except as otherwise provided by these rules or permitted by
       applicable constitutional provisions or statutes, HEARSAY IS NOT
       ADMISSIBLE.

(Emphasis supplied).


                                             7
       Rule 5–801(c), in turn, defines hearsay.

               (c) Hearsay. “Hearsay” is a statement, other than one made by the
       declarant while testifying at the trial or hearing, offered in evidence to prove
       the truth of the matter asserted.

       It is Rule 5–803 that then provides exceptions to the Rule Against Hearsay in

circumstances where the unavailability of the declarant is not required. Rule 5–803(b)(2)

lists as a recognized exception:

              (2) Excited Utterance. A statement relating to a startling event or
       condition made while the declarant was under the stress of excitement caused
       by the event or condition.

       In focusing in on the first anonymous phone call, received by the police at 5:35 p.m.,

the initial inquiry is that of to whom is allocated the burden of proof. This Court answered

that question definitively in Cassidy v. State, 74 Md. App. 1, 8, 536 A.2d 666, cert. denied,

State v. Cassidy, 312 Md. 602, 541 A.2d 965 (1988).

       When urging an exception to a rule of exclusion, . . . the burden is upon the
       proponent of the exception. The correct procedural posture is, “Hearsay will
       be excluded, unless the proponent demonstrates its probable
       trustworthiness.” Affirmative evidence of trustworthiness, moreover,
       contemplates something more than the absence of evidence of
       untrustworthiness. The likelihood of a motive to speak truthfully requires
       more than the unlikelihood of a motive to lie. Were it otherwise, the nothing-
       to-nothing ties on these issues would go to the exception rather than to the
       rule.

(Some emphasis supplied).

       What then is the declarant’s state of mind that will be offered as proof of probable

trustworthiness? The Court of Appeals described that state of mind in Mouzone v. State,

294 Md. 692, 697, 452 A.2d 661 (1982), overruled on other grounds by Nance v.

State, 331 Md. 549, 629 A.2d 633 (1993):


                                              8
       The essence of the excited utterance exception is the inability of the declarant
       to have reflected on the events about which the statement is concerned. It
       requires a startling event and a spontaneous statement which is the result of
       the declarant’s reaction to the occurrence. The rationale for overcoming the
       inherent untrustworthiness of hearsay is that the situation produced such an
       effect on the declarant as to render his reflective capabilities inoperative.

(Emphasis supplied; citations omitted).

       Dean Wigmore agreed. 6 Wigmore on Evidence Sect. 1747, at 195 (Chadbourn rev.

1976), explains the rationale for the Excited Utterance exception.

       This general principle is based on the experience that, under certain external
       circumstances of physical shock, a stress of nervous excitement may be
       produced which stills the reflective faculties and removes their control, so
       that the utterance which then occurs is a spontaneous and sincere response to
       the actual sensations and perceptions already produced by the external shock.
       Since this utterance is made under the immediate and uncontrolled
       domination of the senses, and during the brief period when considerations of
       self-interest could not have been brought fully to bear by reasoned reflection,
       the utterance may be taken as particularly trustworthy (or at least as lacking
       the usual grounds of untrustworthiness), and thus as expressing the real tenor
       of the speaker’s belief as to the facts just observed by him; and may therefore
       be received as testimony to those facts.

(Emphasis supplied; footnote omitted).

       McCormick on Evidence Sect. 297, at 854–55 (E. Cleary 3d Ed. 1984), is in full

accord.

       First, there must be an occurrence or event sufficiently startling to render
       inoperative the normal reflective thought processes of an observer. Second,
       the statement of the declarant must have been a spontaneous reaction to the
       occurrence or event and not the result of reflective thought.

(Emphasis supplied).

       This Court spoke to the Excited Utterance exception in Marquardt v. State, 164 Md.

App. 95, 124, 882 A.2d 900, cert. denied, 390 Md. 91, 887 A.2d 656 (2005):



                                              9
               It is up to the proponent of a statement claimed to be an excited
       utterance to establish that the statement was spontaneous rather than a result
       of reflection. . . . . In making the determination of whether a statement is
       properly characterized as an “excited utterance,” we examine the “totality of
       the circumstances.”

(Emphasis supplied; citations omitted).

       In then assessing whether the necessary conditions for an Excited Utterance have

been met, timing is also a critically important factor. The initial excitement must not have

abated before the hearsay declaration is made. According to McCormick on Evidence Sect.

297, at 856 (E. Cleary 3d ed. 1984):

       Probably the most important of the many factors entering into this
       determination is the time factor. If the statement occurs while the exciting
       event is still in progress, courts have little difficulty finding that the
       excitement prompted the statement. But as the time between the event and
       the statement increases, so does the reluctance to find the statement an
       excited utterance.

(Emphasis supplied).

       In Harmony v. State, 88 Md. App. 306, 320, 594 A.2d 1182 (1991), this Court

emphasized that not only must there be an exciting event in the first instance but that the

declarant must still be in the throes of the exciting event when he or she makes the out-of-

court assertion in issue.

       So long as the declarant, at the time of the utterance, was still in the throes of
       the “exciting event” and therefore not capable of reflective thought, and
       sufficient foundation was laid to enable the trial court to reach this
       conclusion, the statement is admissible.

(Emphasis supplied).

       As we undertake our appellate review of the ostensible Excited Utterance in this

case, we must take note of one other factor that can influence that appraisal. The


                                              10
anonymous telephone caller, the hearsay declarant, in this case was unidentified. There is

in such cases a heightened burden on the proponent of the hearsay in proving its

trustworthiness. In Parker v. State, 365 Md. 299, 314, 778 A.2d 1096 (2001), Judge

Eldridge wrote for the Court of Appeals:

              An examination of the cases in other jurisdictions indicates that,
       where the identity of the hearsay declarant is unknown, the courts hold that
       the party seeking to introduce the excited utterance carries a heavy burden to
       prove the requisite indicia of reliability. It is held that the burden on the
       proponent is heightened, primarily because it is more difficult to establish
       personal observation and spontaneity where the declarant is unknown.

(Emphasis supplied). See also Cutchin v. State, 143 Md. App. 81, 87, 792 A.2d 359 (2002).

       Measured against these multiple and demanding criteria, the 5:35 p.m. call to the

police on 911 does not, we hold, qualify as an Excited Utterance exception to the Rule

Against Hearsay. Notwithstanding the clear burden on the State, as proponent of the

evidence, to make a case for an utterance being made in the throes of excitement, the initial

impression, from the opening words of the declaration itself, is that the declarant is

narrating past events, not expressing present excitement. The shooting was not later than

5:11 p.m. and about two blocks away from where the gun was ultimately tossed into a

backyard in the alley. The first 911 call was at 5:35 p.m., at the very least 24 minutes after

the shooting. The out-of-court assertion, moreover, was completely in the past tense.

       I just wanted to report that I saw two guys come down the alley. I heard
       somebody got shot right here on Reisterstown Road and I saw two guys
       running up the alley. . . . . And they came down the alley . . . . [A]nd they
       threw -- they put something down in there.

       ....

       I just heard a shot and then I saw them running.


                                             11
(Emphasis supplied). It did not take the “two guys” 24 minutes to run two blocks. The

wording of that declaration conveys neither a sense of immediacy nor a sense of emotional

distress.

       There was, moreover, an arguable unresolved ambiguity about the source of the

declarant’s proffered excitement. The opening reference was not apparently to anything

observed by the declarant, by any of her senses, but rather to a second-hand account. “I

heard somebody got shot.” That would give us a case of hearsay twice compounded, to wit,

hearsay within hearsay. Only later did the declaration assert, “I just heard a shot and then

I saw them running.” Which was it? At the hearing on admissibility, that arguable

ambiguity between hearing a shot and hearing about a shooting was never acknowledged,

let alone discussed. The State, as proponent of the evidence pursuant to the Excited

Utterance exception, never mentioned it. In the last analysis, no factfinding was ever made

as to whether the source of the declarant’s alleged excitement was hearing a shot or hearing

about a shooting. The Excited Utterance exception requires an exciting event. As Joseph

F. Murphy, Jr., Maryland Evidence Handbook Sect. 803(C) (4th ed. 2010), explains:

       [T]his exception obviously requires an exciting event, and then makes
       admissible those statements that (1) describe the event and (2) are made so
       close in time that the declarant remains under the influence of the excitement
       produced by the event. This exception does not apply to any statement made
       after the excitement subsides and, although an exciting event may trigger
       one’s recollection of an event long passed, it is supposed to be limited to only
       those statements that actually describe the particular event that produced the
       excitement.

(Emphasis supplied). The declaration here was not “limited to only those statements that

actually describe[d] the particular event that produced the excitement.” The declaration per



                                             12
se was not about the exciting event, whatever that exciting event may have been.

       Lest the State protest that the defense never raised the issue, we hasten to point out

that the defense was under no obligation to raise the issue. A party to whom is allocated an

affirmative burden of proof on an issue may never offer as an excuse for failing to satisfy

that burden that the opposing party failed to raise the issue. As Cassidy v. State pointed

out, 74 Md. App. at 8, it is for the proponent of the exception to demonstrate

trustworthiness, not for the opponent to establish untrustworthiness. The very allocation of

the burden tells us who loses the nothing-to-nothing tie.

       The hearing on the admissibility of the substantive content of the telephone calls

consumed 24 pages of transcript. It was essentially a quasi-adversarial exchange between

defense counsel, arguing against the admissibility of the hearsay, and the trial judge,

making the best case for admissibility. For the most part, the State sat quietly by. Assuming

that the anonymous caller “heard a shot” rather than was the recipient of a second-hand

account that “somebody got shot” on Reisterstown Road, the trial judge made the case that

“hear[ing] a shot” might have been more alarming and that that later version of the exciting

event was perhaps simply the declarant’s “clarification” of her earlier version.

               And then she says, “I heard shots, and then they ran.” And I agree
       with you, there’s a difference in the first paragraph and the third paragraph
       from the bottom. But as I said, maybe she was clarifying what she was saying
       to the operator. She was a little nervous and upset when she first spoke, and
       maybe she misspoke and she’s clarifying that.

(Emphasis supplied).

       Even that version of an emotional shockwave, however, does not ring a convincing

bell. We cannot accept that a single gunshot from two blocks away on Reisterstown Road


                                             13
deprived her of her ability to reflect and kept her thus deprived for no less than 24 minutes.

She was interested in what she had heard (or in what she had overheard). When she saw

two men running away from Reisterstown Road in the alley, she assumed the observation

post from which she could survey their movements along several blocks of alleyway. In

military language, she moved toward the sound of the guns, not away from it. She showed

tactical composure.

       The decision to call 911 and make a report to the police was a conscious and

reflective choice of a good citizen to help the police solve a crime. It was not an

uncontrolled emotional spasm in response to overpowering excitement. “I just wanted to

report that . . . .” The declarant’s narrative report of what she had seen was a calm and

coherent version of what she had observed, embellished by discerning detail of what the

two men were wearing and of the precise backyard into which they threw something.

       The very subject matter of the out-of-court declaration was not, as a true Excited

Utterance is supposed to be, a description of the exciting event and of the declarant’s

unreflective response to the emotional trauma of the excitement. It was a cool and

controlled narrative. If a fellow police officer had been in the declarant’s observation post,

he or she could not have done a better reporting job than the declarant did. This report was

an admirably unexcited utterance.

       In Eades v. State, 75 Md. App. 411, 426, 541 A.2d 1001 (quoting Mouzone v.

State, 294 Md. 692, 697, 452 A.2d 661 (1982)), cert. denied, 313 Md. 611, 547 A.2d 188

(1988), Judge Karwacki wrote for this Court:

       The essence of the excited utterance exception is the inability of the declarant


                                             14
       to have reflected on the events about which the statement is concerned. It
       requires a startling event and a spontaneous statement which is the result of
       the declarant’s reaction to the occurrence.

(Emphasis supplied).

       The two follow-up calls of 5:41 p.m. and 5:49 p.m., although they make no pretense

of being Excited Utterances, were of a piece with that first call of 5:35 p.m. In terms of

tone and of communicative purpose, they throw light on the first call. With respect to the

mental composure of the caller, nothing changed. The only slight display of emotion on

the part of the declarant was her exasperation that the police seemed unable to get their

investigative coordinates straight. Nothing else changed. Clearly, she was giving precise

directions, not responding to emotional shock.

       In looking at the totality of the circumstances, as the caselaw directs us, we hold

that the 911 call of 5:35 p.m. cannot qualify as an Excited Utterance exception to the Rule

Against Hearsay. The trial court’s ruling on admissibility was as follows:

              Okay. Well, when I listen to the tape, I did think she was -- I did sort
       of pick up a little bit of nervousness in her voice as to the first call. Some
       people are just nervous, period, when they’re speaking to the police.

              But for excited utterance, as the State did say, we don’t have to have
       screaming and yelling -- as you know, [defense counsel]. I’m not telling you
       anything you don’t know.

               It’s subtle, but I find that it is admissible under that exception, which
       is call one. Calls two and three, of course, would fall under present sense.
       And I still think she’s a little on edge.

              It almost appears -- and I agree with you at some point -- it almost
       appears that she’s becoming more of a crime-watcher. I mean, she’s at her
       window, obviously, and she’s watching the whole thing from the time she
       sees whatever -- whoever she saw is running down the alley. And when the
       police arrive, she watches the whole thing.


                                              15
             I think it’s a close call, but I do think when I listen to the tape that she
       sounds a little nervous, upset, you know, startled. Because I think hearing
       gunshots could startle people. I don’t think she actually has to see it.

(Emphasis supplied).

       That, we hold, is a tenuously thin reed on which to hang a major part of the State’s

case. Without that hearsay, there was no linkage between the shooting and a revolver found

in a backyard two blocks away. Even if we allowed for the revolver to have been found

randomly, by sheer chance, there was nothing to link the revolver per se with the shooting

of Kevin Cannady. Without the hearsay and the revolver as a product of the hearsay, there

was no linkage between the appellant and the crime. Throughout the initial closing jury

argument by the State and the State’s rebuttal argument, the detailed assertions of the

hearsay declarant were heavily stressed as part of the substantive narration of what

happened in the immediate wake of the shooting. The declarant’s description of two men

running up the alley was engrafted seamlessly onto the videotape of two men running away

from the scene of the shooting.

       The court’s ruling that the 9:35 p.m. declaration was an Excited Utterance is doubly

problematic because of the teaching of Parker v. State, 365 Md. at 314, and Cutchin v.

State, 143 Md. App. at 87, that when, as in this case, the hearsay declarant is unidentified,

there is a “heightened burden” on the proponent of the hearsay to show inherent reliability.

To “pick up a little bit of nervousness in her voice” does not satisfy that heightened burden,

particularly in the face of a totality of circumstances all pointing the other way.

       Needless to say, this out-of-court declaration neither began with “My God” nor

ended with an exclamation point—nor constituted any doctrinal facsimile thereof. The


                                              16
appellant prevails on this first contention.

                               Present Sense Impression

       As various exceptions to the Rule Against Hearsay shed the label res gestae and

took on free-standing identities of their own, the last to do so was the Present Sense

Impression.3 The archetype was Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d

474 (1942). Following the lead of Federal Rule of Evidence 803(1) and 28 other states,

Maryland first recognized the Present Sense Impression as an independent exception in

Booth v. State, 306 Md. 313, 508 A.2d 976 (1986). It now appears as Maryland Rule 5–

803(b)(1):

       Rule 5–803. Hearsay Exceptions: Unavailability of declarant not required.

              The following are not excluded by the hearsay rule, even though the
       declarant is available as a witness:

       ....

              (b) Other Exceptions.

              (1) Present Sense Impression. A statement describing or explaining an
       event or condition made while the declarant was perceiving the event or
       condition, or immediately thereafter.

       3
         In the days prior to Mouzone v. State, 294 Md. at 696–97, in 1982, both the Excited
Utterance and the Present Sense Impression, as well as statements of the declarant’s present
state of mind or physical condition, were referred to by the much older and intellectually
awkward term of res gestae. As the generic term for spontaneous utterances of all sorts, res
gestae cases often explained that it was not the declarant himself who was speaking but
rather the triggering spontaneous event itself speaking through the declarant. For some
insight into the pre-1982 world of res gestae, see Cassidy v. State, 74 Md. App. at 9–16.
See also 2 McCormick on Evidence Sect. 268, at 351–353 (7th ed. 2013); 6 Wigmore on
Evidence Sects. 1745–57, at 191–240 (Chadbourn rev. 1976); Edmund
M. Morgan, Utterances Admissible as Res Gestae 31 Yale L.J. 229 (1922); Charles E.
Moylan, Jr., Res Gestae, Or Why Is that Event Speaking and What Is It Doing in this
Courtroom? 63 A.B.A. J. 968 (1977).

                                               17
      Lynn McClain, Maryland Evidence: State & Federal Sect. 803(1), at 435–36 (3d ed.

2013), explicated the Present Sense Impression:

              In order for a statement to be admissible as a present sense impression,
      there is no requirement that the declarant have been startled, excited, or upset
      about the event perceived. This is as it should be, because there is support for
      the position that unexcited statements tend to be more accurate than excited
      ones. Thus a sportscaster giving a “play by play” account is stating present
      sense impressions, as is a police officer speaking into a wire and describing
      what she is seeing.

            The statement must have been made either during the declarant’s
      perception of the event or condition in question or immediately afterwards.
      Anything more than a slight lapse of time between the event and the
      statement will make the statement inadmissible.

             Before a present sense impression will be admissible, there must be a
      showing that the declarant was speaking from first-hand knowledge. As the
      Maryland Court of Appeals has explained, “in some instances the content of
      the statement may itself be sufficient to demonstrate that it is more likely
      than not the product of personal perception, and in other instances extrinsic
      evidence may be required to satisfy this threshold requirement of
      admissibility.”

            A present sense impression may even be admissible if made by an
      unidentified declarant.

(Emphasis supplied; footnotes omitted).

      In a similar vein, McCormick on Evidence Sect. 298, at 860 (E. Cleary 3d ed. 1984),

observed:

      Although [present sense impression] statements lack whatever assurance of
      reliability there is in the effect of an exciting event, other factors offer
      safeguards. First, since the report concerns observations being made at the
      time of the statement it is safe from any error caused by a defect of the
      declarant’s memory. Second, a requirement that the statement be made
      contemporaneously with the observation means that there will be little or no
      time for calculated misstatement.

(Emphasis supplied; footnotes omitted). See also State v. Jones, 311 Md. 23, 30, 532 A.2d


                                            18
169 (1987); Hunt v. State, 312 Md. 494, 504 n.4, 540 A.2d 1125 (1988); Washington v.

State, 191 Md. App. 48, 92–95, 990 A.2d 549, cert. denied, 415 Md. 43, 997 A.2d 792

(2010).

       In the present case, both the second call of 5:41 p.m. and the third call of 5:49 p.m.

were admitted as Present Sense Impression exceptions to the Rule Against Hearsay.

Neither counsel made any argument with respect to those two calls and the ruling was brief:

“Calls two and three, of course, would fall under present sense.”

       Indeed, those two supplemental calls neither added to nor subtracted from the

State’s case. We have already held in favor of the appellant with respect to this omnibus

hearsay contention, but brief comment on the Present Sense Impression is nonetheless

appropriate for future guidance.

       The second call, that of 5:41 p.m., consisted of nine statements by the declarant. The

first was legitimately a Present Sense Impression. The other eight were not. The first

statement was:

       Well I just wanted you to tell the police. They checking the rear[.] [T]hey
       going the wrong way.

The remaining eight statements consisted largely of a question and answer exchange

between the declarant and the officer taking the call, as the declarant narrated past events

in order to bring the officer up to date. “There was a shooting.” “They’re looking for a

gun.” “[I]t was two guys. They threw it, more like buried it[.]” None of these is remotely a

Present Sense Impression. As Joseph F. Murphy, Jr., Maryland Evidence Handbook Sect.

803(B) (4th ed. 2010), clearly explained:



                                             19
               If the declarant is speaking in past tense, he is unlikely to be stating a
       present sense impression. The rule against hearsay is based upon our belief
       that the factfinder should observe each witness in order properly to evaluate
       perception, memory, narration, and sincerity. The present sense impression
       becomes inadmissible hearsay when the declarant stops talking about what
       he is now observing and starts talking about what he observed at some time
       in the past.

(Emphasis supplied).

       The third and final call, that of 5:49 p.m., consisted of four statements by the

declarant. The first might arguably have been largely a Present Sense Impression as it said,

in effect, “I can see the police searching a backyard—but it’s the wrong backyard.” The

narrative then reverted to reiterating what had earlier been said in the 5:35 p.m. call and it

had been in the past tense even then. “That’s where the gun is. That’s where they put

something down there, two guys.”

       But for the relatively venial sin of overemphasis, these two additional calls did not

add much of substance to the State’s case. They do illustrate, however, how easy it is for a

seemingly simple declaration to wander randomly back and forth between present

impression and past narration.

                            An Alternative Holding:
                  The TrueAllele Modality Of DNA Identification

       With our holding that the admission against the appellant of the hearsay telephone

messages was reversible error, it would become unnecessary to address the appellant’s

second contention. Yet we shall. That contention is that the appellant was erroneously

denied his constitutional right to present a meaningful defense against a DNA identification

made of him. Significantly, what is involved is a new and still controversial modality of



                                              20
DNA identification testing known as TrueAllele. As of trial time, that new testing modality

had been used in Baltimore for approximately one year. It apparently had been used

nowhere else in Maryland. The actual merits of the testing techniques, moreover, have

never been analyzed by an appellate opinion in Maryland. Because this is a case of first

impression and because of the inevitably growing importance of this forensic technique in

future cases, it behooves us to engage in a full analysis of the contention and to render an

alternative holding in this case.

       Once the jettisoned revolver was found in a nearby backyard, there ensued a very

different type of legal wrangle. With this second contention, we find ourselves in a new

and largely unexplored corner of DNA identification science. Once the anonymous

telephone caller and the police began reading off the same navigational page, the pertinent

backyard was soon located. Officer George Githara was a member of the team searching

the alley behind Cordelia Avenue for a handgun. He described the total search time as

consuming approximately 30 minutes. Near the end of that time, a telephoned direction

caused the officers to switch their search area from behind the 4800 block of Cordelia

Avenue to the rear of 4907 Cordelia Avenue. Officer Githara there spotted the handgun

near the bottom of a tree stump, right inside the alley fence. The officers stood watch over

the weapon until it was taken into custody by Kelly Figueroa, a technician with the

Baltimore City Police Crime Lab. At the crime lab, the gun was first dusted for fingerprints.

None were found. The handgun was then swabbed for possible traces of DNA.

       The key witness for the State was Thomas Heibert, the DNA analyst for the

Baltimore City Police Department. Mr. Heibert was accepted as an expert in forensic DNA


                                             21
analysis. He analyzed the swab of DNA taken from the handgun and compared it with a

DNA sample taken from the appellant (oral swabs). That initial comparison, received as

State’s Exhibit No. 22, was inconclusive. Mr. Heibert described it:

             Q. And what were your findings when you added [the appellant’s]
       swabs to the comparison?

              A. [The appellant] could neither be included nor excluded. And what
       that means is there was a likelihood ratio, a positive indication, that he was
       present, but not at a level that I could say that he is definitely included.

(Emphasis supplied).

       A subsequent comparison, received as State’s Exhibit No. 23, made an adjustment

in the comparison. Instead of comparing the appellant’s DNA, one on one, with the sample

taken from the gun, the adjusted comparison assumed that there were two contributors to

the DNA sample taken from the gun and that the appellant was simply a minor contributor.

Apparently it takes less of a match to list one as a minor contributor than it does to make a

match generally. Mr. Heibert described the critically different result.

             Q. Okay. So after you put in that information regarding Heather Ladd,
       what determination did you make from TrueAllele?

              A. The match score between [the appellant] and the minor contributor
       increased to the point where I could say he was included.

(Emphasis supplied).

       The statistical difference was decisive as the “match score . . . increased to the point

where I could say he was included.” Also decisive was the role of Mr. Heibert in

interpreting the shift in the match score. These factors will be significant when we consider

the vital role of statistical analysis in DNA testing infra. In any event, this second DNA



                                              22
comparison involving the appellant was, for all intents and purposes, the State’s entire case

against the appellant. Without this test result labeling the appellant as a minor contributor

to the DNA on the gun, there was no meaningful linkage between the appellant and the

crime.

         At this point, our focus turns to the subject of DNA testing, especially to the

particular DNA test employed in this case, and to the variable factors that may enter into

the conducting of the test in issue. Most significantly, our analysis focuses 1) on the

opportunity of the defendant to challenge the very utilization of the particular test employed

in the first place, 2) on the circumstances that went into the conducting of such a test, and

3) on the dispositive statistical interpretation of the ostensible test results.

                       The Precise Target In The Crosshairs:
                     TrueAllele Specifically, Not DNA Generally

         As a forensic investigative technique, the use of DNA comparison is cutting edge

science. First used in a criminal case in the United Kingdom in 1986, it was adopted in the

United States by the FBI in 1988. Maryland cases abounded with the first wave. This Court

recognized the validity of DNA matches for identification purposes in Cobey v. State, 80

Md. App. 31, 559 A.2d 391, cert. denied, 317 Md. 542, 565 A.2d 670 (1989). DNA testing

received the imprimatur of the Court of Appeals in Judge Raker’s landmark opinion in

Armstead v. State, 342 Md. 38, 673 A.2d 221 (1996). It has regularly been recognized over

the course of the intervening years. See Phillips v. State, 451 Md. 180, 152 A.3d 712

(2017); Varriale v. State, 444 Md. 400, 119 A.3d 824 (2015); Young v. State, 388 Md. 99,

879 A.2d 44 (2005); Gross v. State, 371 Md. 334, 809 A.2d 627 (2002); Williams v. State,



                                               23
342 Md. 724, 679 A.2d 1106 (1996); Phillips v. State, 226 Md. App. 1, 126 A.3d 739

(2015); Diggs and Allen v. State, 213 Md. App. 28, 73 A.3d 306 (2013), aff’d, Allen v.

State, 440 Md. 643, 103 A.3d 700 (2014).

       What is before us in this case, by contrast, is a new development in DNA law that

has never yet been analyzed, nor even recognized, in the Maryland caselaw. It is a new and

still controversial matching technique known as the TrueAllele test. It is, by definition, a

less reliable DNA test, but one necessary to resort to by the police when the circumstances

do not permit a more reliable test.

       An accepted expert on DNA analysis and the DNA analyst for the Baltimore City

Police Department, Thomas Heibert, testified at the pre-trial suppression hearing. He

explained that TrueAllele is resorted to when the DNA sample to be tested is

problematically small or has been contaminated or where there are multiple donors of the

DNA in question.

             Q. You indicated that the lab just started using TrueAllele about a year
       ago. Do you know why the lab started to use TrueAllele?

              A. Our previous interpretation methods were not sufficient for the
       types of samples we were receiving. So we were getting a lot of samples that
       we could not interpret manually, so we needed the assistance of a computer
       program.

(Emphasis supplied).

       The revolver in this case presented just such problems, problems that precluded

more reliable manual testing and necessitated reliance on TrueAllele.

              A. The revolver was a low-level mixture with a lot of uncertainty
       within the profile.



                                            24
       ....

              Q. And what do you mean when you have a low-level mixture?

             A. So there’s not a lot of DNA there, and there’s DNA from more than
       one person.

              Q. Now, do you have parameters set on when you can use TrueAllele
       on, for instance, a low-level mixture?

              A. The parameters for TrueAllele are really up to the analyst to decide.
       So if they feel they cannot do the sample manually, then they would put it
       into TrueAllele.

(Emphasis supplied).

       The analyst always looks first to see if more reliable manual testing is possible and

only resorts to TrueAllele when manual testing is not feasible.

              Q. So in regards to the swabs from the revolver -- you indicated that
       you used TrueAllele. Can you explain that process to the judge, what exactly
       you did?

              A. So I will receive the raw data. I will review it manually to
       determine whether or not I can make a manual determination. If I cannot,
       then I will upload it to the TrueAllele system.

(Emphasis supplied).

       Mr. Heibert acknowledged that there was “so little DNA there” that it was difficult

to determine whether even that little bit had suffered degradation.

              THE WITNESS: It’s possible that there is some degradation. It’s
       difficult to determine because it’s such a low-level profile. So, there’s so little
       DNA there, it’s hard to determine whether it’s degraded or whether it’s just
       due to the low amount of DNA.

(Emphasis supplied).

       The TrueAllele technique is on the far periphery of DNA testing and has never been



                                               25
the subject of analysis in any Maryland reported opinion. This is truly a case of first

impression.

                             Admissibility Versus Weight

       The trial in this case began on Monday, January 23, 2017. On the last working day

before that, on Friday, January 20, 2017, the Court of Appeals filed its opinion in the case

of Phillips v. State, 451 Md. 180, 152 A.3d 712 (2017). That filing dramatically changed

the schedule. Over the course of that intervening weekend, the midnight oil was burned

and trial strategies were drastically revamped. A case that had been destined to be primarily

a strategic battle royal over the threshold admissibility of TrueAllele evidence turned,

instead, into a tactical battle over how a defendant might challenge and diminish the weight

and persuasiveness of such evidence. The anticipated test case did not involve TrueAllele

testing specifically. That testing modality had not yet been significantly recognized. The

expected battle was over the admissibility of DNA testing generally.

       The defense argument in the Phillips case was that DNA test results generally should

not be admitted into evidence unless the proponent could, on a case by case basis, satisfy

the rigorous demands of a Frye-Reed hearing.4 The State, on the other hand, argued that


       4
         In Phillips v. State, 451 Md. at 184–85 n.1, Judge Getty provided a concise
explanation of a Frye-Reed hearing.

       Frye-Reed refers to Maryland’s standard for determining the admissibility of
       scientific evidence. “[B]efore a scientific opinion will be received as
       evidence at trial, the basis of that opinion must be shown to be generally
       accepted as reliable within the expert’s particular scientific field.” Reed
       v. State, 283 Md. 374, 381, 391 A.2d 364 (1978) (citing Frye v.
       United States, 293 F. 1013 (D.C. Cir. 1923)). A Frye-Reed hearing is the
       pretrial hearing at which the proponent of the scientific evidence must

                                             26
DNA evidence was automatically admissible under Maryland Code, Courts and Judicial

Proceedings Article (“CJP”), Sect. 10–915.

       The case concerning admissibility initially came before the Court of Special

Appeals in Phillips v. State, 226 Md. App. 1, 126 A.3d 739 (2015).5 As of that time, CJP,

Sect. 10–915(b) provided:

              (b) In general.—A statement from the testing laboratory setting forth
       that the analysis of genetic loci has been validated by standards established
       by TWGDAM [The Technical Working Group on DNA Analysis Methods]
       or the DNA Advisory Board is sufficient to admit a DNA profile under this
       section.

       This Court’s opinion, 226 Md. App. at 8, noted the very obvious initial problem that

neither of the validating agencies was, as of 2015, still in existence. We observed:

             The issue is made more complicated because neither TWGDAM nor
       the DNA Advisory Board remain in existence. Accordingly, compliance is
       impossible today.


       establish such general acceptance if the admissibility of the evidence is
       challenged.
       5
         Although the name “TrueAllele” was never used and the actual merits of such a
testing modality were never analyzed by this Court, the actual facts in the case bore some
resemblance to what is before the Court in the present case. The Prince George’s County
DNA laboratory was dealing with “interpretation of complex, low copy number DNA
samples.” Phillips v. State, 226 Md. App. at 5 n.3, further defined what the laboratory was
dealing with.

       A “complex” DNA sample refers to a DNA sample that includes genetic
       material from three or more individuals. “Low copy number” DNA analysis
       “involves testing minuscule amounts of DNA that fall below the (somewhat
       amorphous) stochastic threshold—around 100 picograms or less.”

(Emphasis supplied; citations omitted). Neither the opinion of this Court nor of the Court
of Appeals, however, was called upon to address the merits of the DNA testing under such
circumstances.

                                             27
(Emphasis supplied; citation omitted).

       After a thorough analysis of “The Problem of Obsolete Statutes,” this Court

concluded that automatic admissibility was not available and that a Frye-Reed hearing was,

therefore, necessary. The opinion then went on to hold, however, that the Frye-Reed

hearing conducted by the trial court fully satisfied all required criteria and that the DNA

test results in Phillips were, indeed, admissible.

       On certiorari, the Court of Appeals agreed with this Court that the DNA test results

were admissible. The Court of Appeals did disagree with the Court of Special Appeals,

however, on the subject of automatic admissibility. It agreed that the two validating

agencies expressly mentioned in the earlier version of CJP, Sect. 10–915(b) were, indeed,

no longer in existence. In a protracted analysis, however, it then concluded that the

standards promulgated by those agencies were still in existence, albeit enforced by other

institutions. Its conclusion was that validation requires only that the standards themselves

be satisfied, regardless of whether the agencies that promulgated the standards still existed

or not. Under the circumstances, the Court of Appeals held that the decision of this Court

that a Frye-Reed hearing was required was wrong. It did not disagree with this Court’s

assessment of the Frye-Reed hearing but simply held it to have been unnecessary. Both

Courts agreed, however, that the DNA evidence in the Phillips case was admissible.6

       In disposing of Phillips’s alternative argument, challenging the adequacy of the test


       6
         The problem is no longer so complicated. A 2016 amendment to CJP, Sect. 10–
915(b)(3) now provides expressly that validation by “The Federal Bureau of Investigation’s
Quality Assurance Standards for Forensic DNA Testing Laboratories” will satisfy the
statutory requirement.

                                              28
on “complex, low-template DNA,” the Court of Appeals held that, in the face of automatic

admissibility, the merits of such a test are irrelevant to the issue of admissibility.

               The trial court’s findings that the QAS [Quality Assurance Standards]
       did not address complex, low-template DNA and that the Prince George’s
       County Laboratory did not have any protocols for analyzing this category of
       DNA, are not clearly erroneous; however, those findings are not relevant to
       the admissibility of DNA evidence under CJP § 10–915. All that is required
       for admissibility under the Statute is “[a] statement from the testing
       laboratory setting forth that the analysis of genetic loci has been validated by
       standards established by TWGDAM or the DNA Advisory Board,” and
       compliance with the notice requirements. As we stated above, the Laboratory
       satisfied these requirements with respect to the DNA evidence admitted
       against Mr. Phillips. Therefore, the DNA evidence was automatically
       admissible under the Statute.

451 Md. at 205 (emphasis supplied).

       On one critical issue the Court of Appeals and the Court of Special Appeals were in

rock solid agreement. Resolving the admissibility issue, as a matter of law, does not end

the case. There still must be adjudicated the weight and persuasiveness of the DNA test

results, as a matter of fact. This Court recognized the distinction.

       Any challenges to the Prince George’s County DNA laboratory’s lack of a
       set stochastic threshold properly goes, and did go, to weight rather than
       admissibility.

226 Md. App. at 21 (emphasis supplied; footnote omitted).

                          “A Rose By Any Other Name . . . ”7

       The staging of this particular courtroom drama (the admissibility hearing scheduled

for Monday) turned out to be eccentric, particularly in the hastily improvised adaption of

its opening act. On Friday, yet unaware of the Court of Appeals opinion being filed that


       7
           William Shakespeare, Romeo and Juliet, Act II, Scene 2.

                                              29
afternoon, all parties were in final preparations for an impending Frye-Reed hearing on

Monday. The subject was to be the general acceptance in the scientific community of the

TrueAllele modality of DNA identification. By late Friday afternoon, however, Phillips v.

State had become the new controlling reality. The results of the DNA testing were

automatically admissible and no Frye-Reed hearing was appropriate. Would Monday’s

scheduled hearing be cancelled?

       The window for readjustment was tight. It was as if a bare weekend were available

for replanning the Invasion of Normandy. Forensic ingenuity, however, is not to be

disdained. If CJP, Sect. 10–915(b)(3) now proclaimed that a performance of Hamlet (Frye-

Reed) would not be held, a resilient cast was determined to deliver its well-rehearsed lines

nonetheless, but, in order to comply with the new statutory directive, it had to retitle the

play Macbeth. The “To be or not to be” soliloquy would simply be delivered by the Thane

of Cawdor. Lest this metaphor be deemed far-fetched, it represents precisely what had

happened to this case by the afternoon of Monday, January 23, 2017.

       The retitling of Monday’s pre-trial performance was accomplished relatively

painlessly. After a little hemming and hawing back and forth by both State and defense,

the judge announced that a Frye-Reed hearing would no longer be on the docket.

              THE COURT: Okay. So, then, there’s no need for a Frye-Reed
       hearing in this case. The DNA is automatically admissible in this case.

(Emphasis supplied).

       The admissibility battle would not be waged at Elsinore, as defense counsel deftly

shifted the ground of attack from Frye-Reed to due process. Defense counsel articulated



                                            30
the shift:

       There are statements in Armstead, which I can bring the Court’s attention to,
       and also in Phillips that says that the fact that the statute has been complied
       with does not inoculate the statute if the Defense is, in fact, asserting that the
       DNA analysis is inadmissible under due process grounds -- both procedural
       due process grounds and substantive due process grounds -- because the
       analysis is not reliable.

              What happened in Phillips, Judge, is he gave up that. He waived that
       assertion, that due process was not -- that due process was violated. Here,
       we’re not waiving that assertion, Your Honor.

               So basically what we’re saying is, under due process, the bottom line
       -- the Defense has the right both substantively and procedurally to ensure that
       the Defendant is not convicted under unreliable scientific evidence. That’s
       his substantive right under due process, Judge.

             Procedurally, we must have the opportunity to challenge from a due
       process standpoint -- pretrial, that is -- unreliable and inadmissible evidence.

(Emphasis supplied).

       The judge did briefly evidence some chagrin at the sudden and unexpected shift in

the court’s calendar, but ultimately went along with the due process hearing.

              THE COURT: Well, you didn’t -- were you -- when did you decide
       you were going to be proceeding on due process? Because you didn’t send
       any of this to my clerk or any of these cases.

(Emphasis supplied). It turned out to be simply a Frye-Reed hearing by another name.

       Although the name of the performance would be different (“due process hearing”

instead of “Frye-Reed hearing”), the theatre would not be dark that afternoon. The shift,

however, did give rise to an oddity that no one seemed to notice. In a Frye-Reed hearing,

it would be the State, as proponent of the TrueAllele testing modality, that bore the burden

of proof. In a constitutional due process attack on an already established procedure, on the



                                              31
other hand, it would be the appellant who bore the burden of proof to establish the due

process violation. In this case, inexplicably, it was the State which assumed the burden of

proof, just as if this were a Frye-Reed hearing. Indeed, in almost every respect, the

admissibility hearing in this case did proceed exactly as a Frye-Reed hearing would have

proceeded. Fortunately, there was no tie in ultimate persuasion and any misallocation of

the burden of proof, therefore, made no difference.

                       The Pretrial Hearing On Admissibility

       The pretrial hearing on the TrueAllele modality (whatever name we put on it)

consumed 222 pages of transcript. Each side called one witness. Thomas Heibert was

accepted as an expert witness for the State. His testimony consumed 100 pages of

transcript. Dr. Charlotte Word was accepted as an expert witness for the appellant. Her

testimony consumed 88 pages of transcript. The hearing explored in great depth both the

strengths and the substantial weaknesses in the relatively new TrueAllele modality. This

will ultimately take on significance when we explore the entitlement of the appellant to

expose those substantial weaknesses to the jury as he tried to challenge the weight to be

given to such evidence.

       At the conclusion of the hearing on Monday but before making her ruling on

Tuesday morning, the judge opined as to what the jury would probably have to do with the

controversial DNA evidence.

       [B]asically what this really comes down to is the battle of the two experts.
       And, you know, the jury will believe which expert they wish to believe, or
       they may not believe any expert, which is, you know, part of what I instruct
       them on.



                                            32
(Emphasis supplied). The assumption seemed to be that the trial on the issue would be a

recapitulation of the admissibility hearing. That assumed, of course, that the jury would

ultimately get to hear the same expert testimony that the admissibility hearing had enjoyed.

That, however, was not to be and that was reversible error.

        The trial judge ruled that the use of the TrueAllele methodology did not offend due

process of law and that the DNA evidence in this case was, pursuant to CJP, Sec. 10–915(b)

and Phillips v. State, 451 Md. at 180, admissible in evidence. The judge’s conclusions were

all with regard to admissibility, as a matter of law. The judge acknowledged, in passing,

that the various alleged flaws and weaknesses in the TrueAllele methodology would

appropriately be for the jury to consider as it then determined the weight to be given to

such evidence. What was proper evidence to challenge admissibility, as a matter of law,

should ipso facto be proper evidence to challenge the weight of evidence, as a matter of

fact.

               Maryland courts distill the principle that the essence of due process
        fundamental fairness inquiry is whether there is a balanced, fully-explored
        presentation of evidence. This balance, in turn, depends on the jury’s ability
        to weigh the evidence and the Defendant’s opportunity to challenge the
        evidence.

                This Court concludes that because the jury will be presented with both
        TrueAllele and manual calculations with full explanations of both methods,
        it will have the opportunity to weigh the contested evidence.

               This Court cannot say that the data is so unreliable on its face. Mr.
        Morten can attack the weight to be given to the DNA evidence based on the
        lack of accepted standard[s] for analyzing mixtures of low-level DNA
        samples by either cross-examining Mr. Heibert at trial or calling Dr. Word
        as a rebuttal expert, as he did in the motion hearing.

(Emphasis supplied). What was there anticipated, however, never came to pass.


                                             33
                   The Presumptive Significance Of The Hearing

       The ruling at the conclusion of the hearing on the admissibility of the DNA evidence

was not at all unexpected. That ruling is not in dispute. The hearing should nonetheless

have served as a very valuable dress rehearsal for the trial that followed. Whatever evidence

was competent to prove or disprove the very admissibility of the TrueAllele modality as

matter of law should ipso facto have been competent for the lesser task of adding to or

subtracting from its persuasive weight as a matter of fact. Whatever witness was competent

to prove or disprove the very admissibility of the TrueAllele modality as a matter of law

should ipso facto have been competent for the lesser task of adding to or subtracting from

its persuasive weight as a matter of fact. There was no apparent reason that all of the

evidence pertinent at the hearing should not have been equally pertinent at the trial proper.

Between the hearing and the trial proper, however, there occurred an inexplicable

disconnect. And therein lay the fatal trial error.

                 Qualifying And Disqualifying An Expert Witness

       The trial on the merits initially proceeded uneventfully. Thomas Heibert’s expert

testimony for the State essentially replicated his testimony at the pre-trial hearing on

admissibility. After the appellant’s motion for a judgment of acquittal was denied, the

appellant called Charlotte Word as his single witness. At that point, a discernible chill fell

over the trial. What had seemed to be a relatively free and open mood of receptivity

suddenly turned a lot stingier.

       The State’s entire case against the appellant depended on the jury’s acceptance of

the TrueAllele test results linking the appellant to the revolver found in the backyard of


                                              34
4907 Cordelia Avenue. The entire defense of the case, on the other hand, depended on

persuading the jury that the new and controversial TrueAllele testing modality was not

reliable enough to be worthy of belief, at least not worthy enough to support belief beyond

a reasonable doubt. It presumably would take a lot less to erode its ultimate persuasiveness

than to bar its very admissibility. Subject to challenge was not only the inherent reliability

of the TrueAllele testing modality itself but also the way in which it was administered in

this particular case. That defense, in turn, depended entirely on the testimony of Dr. Word.

       The testimony that Dr. Word gave at the pre-trial admissibility hearing would have

amounted to a strong case for the defense if repeated at the trial on the merits. The

appellant’s contention that his right to present a defense was erroneously undermined by

the exclusion of much of his evidence attacking the reliability of TrueAllele testing

amounts to the contention that Dr. Word was unduly prohibited from fully presenting her

views about TrueAllele testing.

       Although Dr. Word had testified as an expert witness without any limitation at the

pre-trial admissibility hearing and although her expert status at that earlier hearing

paralleled, if it did not surpass, that of Mr. Heibert, her re-qualification as an expert witness

at the trial proper turned into a virtual mini-trial. Her ultimate acceptance as an expert




                                               35
witness was grudgingly stingy and warily circumscribed.8

       She had received her Bachelor of Science degree in biology from William and Mary

and her Ph.D. from the University of Virginia, specializing in molecular biology and

immunology. She did post-graduate work in those specialties for three and one-half years

at the University of Texas Southwestern Medical School. She then served on the faculty of

the New Mexico School of Medicine for five and one-half years. At the time of trial, she

was employed as a consultant in the area of human DNA identification testing.

       She further explained that from 1990 to 2005, she worked for Cellmark Diagnostics

in Germantown, Maryland, a private laboratory doing human DNA identification testing

both for biological relationships and paternity and for criminal case work. Since 2005, she

has worked as a private consultant in the field of DNA identification testing.

       At Cellmark, one of Dr. Word’s major functions was as a technical reviewer of

casework. Dr. Word described the job of a technical reviewer.

       When samples come into the laboratory, the case and the samples get
       assigned to a DNA analyst who does all the physical work, does all the
       technical work, documents everything, generates the report, the data and
       writes the draft report. It’s required that a second person called the technical
       reviewer review all the work that’s been done, checks to see that the standard
       procedures were followed, that the documentation is appropriate, does a
       second independent interpretation of the data and then co-signs the report
       stating that that individual agrees with the results and conclusions as they’re
       reported in the report.

       8
         Why Thomas Heibert and Charlotte Word, having both been accepted as expert
witnesses for Monday’s hearing on admissibility, had to qualify all over again for the trial
proper is by no means clear. If anything, the bar for being accepted as an expert would
presumably have been higher at the earlier hearing, where admissibility could actually be
barred, as a matter of law, than at the trial proper, where persuasive weight need only be
arguably impugned, as a matter of fact. That issue is not before us, however, except to raise
an eyebrow.

                                             36
(Emphasis supplied).

       Dr. Word also described her experience in reviewing DNA data from other

laboratories.

       So one of my other job functions when I was at Cellmark was to do
       consultation work with attorneys to help them with cases where they had
       work done -- work performed by another laboratory. So this would be
       prosecutors and Defense attorneys who wanted a second opinion or
       additional information regarding a case. So since 1990 I -- and the whole
       time I was at Cellmark I did consulting work reviewing case work that had
       been done by other laboratories and providing my opinion on what I thought
       about the testing, how it was done, whether I agree with the data. And then
       since 2005, that’s been my major form of work. But along that as well I’ve
       done consulting work for crime labs and I have been hired as a contract
       technical reviewer for several different crime laboratories where I functioned
       in the same way that I did at Cellmark, doing the second review on their case
       work in their laboratory.

(Emphasis supplied).

       Dr. Word also explained that for the United States Department of Justice, she had

served on a subcommittee of the Commission on the Future of DNA Evidence, looking at

the new field of DNA testing and how it would be used in criminal courts. Dr. Word also

served on a subcommittee looking at the use of DNA testing in post-conviction testing.

       Dr. Word is also an associate editor of the Journal of Forensic Sciences and is a

reviewer for an international journal called Forensic Science International: Genetics. She

has reviewed “probably well over a million” DNA mixtures and delivered countless

lectures or training presentations on DNA mixture analysis. Dr. Word has provided DNA

training to judges. She has testified as an expert in the field of forensic DNA analysis in

over 300 cases. She had, moreover, been accepted as an expert in the field of statistical

frequency calculations.


                                            37
       On cross-examination, the State scrounged for some subset of the larger field in

which Dr. Word had not worked. In cross-examining Dr. Word about her expertise, the

State seized on the fact that she had not actually taken a TrueAllele sample all the way

through the testing process.

               Q. Dr. Word, at a previous hearing you indicated that you had never
       actually used any of the probabilistic genotype software such as STRmix or
       in this case TrueAllele; isn’t that correct?

               A. I haven’t taken a sample all the way through. I have a very tiny bit
       of experience on looking at data in the TrueAllele system a few years ago,
       but it’s minimal.

       When then asked if it accepted Charlotte Word as an expert, the State was carefully

circumspect in its agreement.

              THE COURT: Any objection?

              [THE STATE]: If she’s only designated in the field of forensic DNA
       analysis and interpretation the State has no objection.

               THE COURT: All right. The witness will be received as an expert in
       the field of forensic DNA analysis and interpretation.

(Emphasis supplied).

       To what extent, if any, that pinched and grudging acceptance might later inhibit Dr.

Word’s testimony was by no means yet clear.

                                A Hamstrung Defense

       After the voir dire examination of Charlotte Word to establish her qualification as

an expert witness had concluded, her remaining testimony at trial consumed 93 pages of

transcript. Her testimony was the appellant’s sole defense. Without that testimony, the

“black box” of DNA analysis proclaimed to the jurors that the appellant’s DNA was on the


                                             38
revolver, and there was no one to contradict the “black box.”

       Dr. Word’s testimony at the admissibility hearing on Monday, however, had been a

persuasive and cogent criticism of the TrueAllele testing modality and of its application in

this case in several regards. In Dr. Word, the “black box” had met its match. The jury was

entitled to all of the information that had been developed on Monday. The appellant,

moreover, was entitled to have that information presented to the jury.

       Dr. Word’s testimony at the trial on Wednesday, by contrast, turned out to be a

muddle. She need not even have been called to the stand. In the course of the direct

examination and the redirect examination of Dr. Word, there were 30 objections with 26

of them being sustained. By way of further interruption to the smooth flow of her

testimony, counsel were called to bench conference 18 times. Whereas Dr. Word’s attack

on the reliability of TrueAllele testing at the admissibility hearing had been one of

persuasive and convincing substance, what she was finally permitted to say at the trial

proper was very thin gruel. It was not a smooth read. If a hard read for appellate review, it

was an even harder audit for twelve lay jurors. In a word, there was no defense. The “black

box” über alles!

       Early on in the trial testimony of Dr. Word, she was asked to explain the process of

“using mathematical equations, mathematical algorithms that are put into a computer

process” and how “some predictive information is based on the date input and the

assumptions made on that date.” The limited nature of the State’s agreement to Dr. Word’s

qualifications as an expert witness became clear.

              [THE STATE]: Your Honor, at the motions hearing and even today


                                             39
       Dr. Word has indicated that she was never able to take a sample and put it all
       the way through a system like True Allele which is the problem. So I’m not
       sure how she can testify as an expert in this area and that’s why I indicated
       that I would only -- I would concede to the fact that she is an expert in the
       field of only forensic DNA analysis and interpretation.

(Emphasis supplied).

       After interminable wrangling, the State’s objection was sustained. In closing

argument to the jury, the State stressed that Dr. Word was not an expert on TrueAllele

testing.

              Now, the defense brought in Dr. Word and she’s an expert. She’s an
       expert in DNA analysis and interpretation and that’s all she’s an expert in.
       You hear her testify that she said that she has run conferences where she
       brings in Dr. Chroman, these other doctors who have created and run
       programs like TrueAllele and some of the other ones that were mentioned
       like STR Mix. But she also said, she never ran an entire sample all the way
       through. She did parts of one on a different system other than TrueAllele, but
       she has never actually run a sample. Even when she worked at Cellmark for
       15 years, she was in technical review. She never put samples through. Not
       like Mr. Heibert where that is his entire job is to run samples.

(Emphasis supplied).

       Shortly thereafter, the State returned to that theme.

              But yet, she is not an expert in that because she has never even ran a
       sample through. She can talk about it to say like it exists. Like I can talk
       about that Mars exists but I’ve never been to Mars. I can’t tell you what the
       ground looks like on Mars. I’m not going to be an expert in that. Just because
       I attend a couple of workshops and bring speakers in, essentially a
       coordinator, doesn’t make me an expert.

(Emphasis supplied).

       Between the admissibility hearing on Monday and the trial proper on Wednesday,

Dr. Word had somehow been stripped of her expertise on the most critical factor to be

considered by the jury—the reliability of TrueAllele testing. Would testimony that would


                                             40
have been competent to bar admissibility as a matter of law not have been competent to

raise a reasonable doubt as a matter of fact? Why would testimony that was competent on

Monday not have been equally competent on Wednesday on essentially the same issue?

                    Theoretical Reliability Versus Ad Hoc Reliability

          Any attack on the general admissibility of the testing procedure could obviously

also serve as a legitimate attack before the jury on the persuasive weight of the results

produced by the procedure. In that sense, the attack would be on the abstract or theoretical

reliability of basing the procedure on certain scientific principles. That, of course, is

reliability as it bears on the general admissibility of the procedure at an admissibility

hearing before a judge as a matter of law. The same theoretical reliability (or unreliability)

would, of course, be proper argument before the jury as it assessed the persuasive weight

of the test result.

          Also fair game before the jury on the question of weight, however, would be

reliability not in the sense of the general or theoretical reliability of the testing methodology

but ad hoc reliability in the way the test was performed on a particular occasion. In

Armstead v. State, 342 Md. at 66, Judge Raker pointed out that challenging “the manner in

which a particular test was conducted” is a valid attack on the persuasive weight of the test

result.

          The statute does, however, permit case-specific challenges to the manner in
          which a particular test was conducted. [T]hese particularized challenges
          ordinarily will go to the weight of the evidence rather than its admissibility[.]

(Emphasis supplied).

          In this case, there were two pertinent attacks not aimed at the abstract validity of the


                                                 41
test itself but, rather, at “the manner in which [this] particular test was conducted.” In this

case, the appellant’s attack on the quantitative DNA sample subject to the TrueAllele

testing was an attack on the performance of the test in this case, not an attack on the test in

a theoretical sense. The very pointed defense attack on the fact that Mr. Heibert chose,

subjectively, to program the computer with the assumption that there had been only two

contributors rather than three or more was just a limited attack on the performance of the

test on this particular occasion rather than an attack on the test in a theoretical sense.

       In that sense, these two ad hoc attacks on the performance of the test really had no

business being before the court at Monday’s admissibility hearing. They were not attacks

on the theoretical basis of TrueAllele testing. The most impeccable of testing procedures

could be performed on occasion in a shoddy manner, and the latter would not impugn the

former.

       By the same token, the court’s decision on admissibility generally decided nothing

with respect to the highly particularized attacks simply on the test performance. At the

admissibility hearing, the issue of ad hoc performance on this occasion would have been

irrelevant. With respect to these two sub-issues, therefore, for the judge to announce that

reliability had already been decided was simply wrong. Ad hoc reliability as to the manner

of the test performance had not been decided. A ruling that the test itself was admissible

was not a ruling that Mr. Heibert had performed it correctly.

                      Quantitative Insufficiency Of The Sample

       Quite aside from the general acceptability of the testing modality, there are obvious

questions about the actual application of the test to the particular DNA sample in the case.


                                              42
When there is an extremely small amount of DNA available, there is clearly the question

of whether there is enough DNA to permit valid testing.

      In Monday’s admissibility hearing in this case, there were repeated references by

both sides to the very small sample in this case. The State’s expert, Mr. Heibert, had

acknowledged:

             THE WITNESS: It’s possible that there is some degradation. It’s
      difficult to determine because it’s such a low-level profile. So there’s so little
      DNA there, it’s hard to determine whether it’s degraded or whether it’s just
      due to the low amount of DNA.

(Emphasis supplied).

      At one point in the trial proper, the trial judge sustained a State objection to Dr.

Word’s testimony in the following terms:

             THE COURT: . . . . Now she has testified in this case that interpreting
      the data that Mr. Heibert used using TrueAllele and she used the manual
      method, she felt with the low level of DNA that the manual was best. What
      you’re after now with her is to whether she thinks TrueAllele, is reliable on
      low level mixtures, That’s what you want her to say.

             [THE STATE]: Yes, based on what she knows about the program.

             THE COURT: Okay. I’m going to sustain.

(Emphasis supplied).

                          Two Minor Contributors Or More

      For DNA testing purposes, a mixed DNA sample is one where the total DNA sample

consists of contributions made by two or more persons. The DNA in this case was such a

mixed sample. The major contributor to the DNA swab in this case turned out to have been

one Heather Ladd, whose major contribution to the DNA swab had occurred some five



                                             43
years earlier and who is absolutely irrelevant to the issue before us. The pertinent issue is

that of whether there was one or more than one minor contributor to the mixed sample

found on the gun.

       The difference between programming the computer with the assumption of one

minor contributor and the very different assumption of two minor contributors would

produce dramatically different results because of probabilistic genotyping. The court

refused, however, to let the defense go into this.

               [DEFENSE COUNSEL]: I do believe that Dr. Word should be able to
       testify about her opinion about the reliability of probabilistic genotyping
       systems like TrueAllele and I believe she would state that under these
       circumstances that they have not proven these systems to be reliable for
       samples like the gun.

              THE COURT: Okay. I note your objection.

       ....

              THE COURT: Objection sustained. Let’s move on.

(Emphasis supplied).

       Permeating the entire recurring pattern of the State’s objecting and of the court’s

sustaining of the objections was the court’s position that Dr. Word was questioning

TrueAllele’s reliability and that the reliability issue had already been decided on Monday.

              [DEFENSE COUNSEL]: Based on what you know about
       probabilistic genotyping, what is your opinion as to whether or not it has
       been proven that probabilistic genotyping systems can appropriately
       (inaudible)?

               [THE STATE]: That goes to reliability, Your Honor. She’s already
       testified that --

              THE COURT: I really -- you know, [defense counsel], I think with


                                             44
       Dr. Word you’ve made your point and I think that -- and I have told you, I
       -- I made my ruling. This is why you presented all this before me on Monday.

              [DEFENSE COUNSEL]: Right.

              THE COURT: I’ve made my ruling on reliability of the -- I didn’t find
       that anything was so unreliable.

(Emphasis supplied).

       As the computer is programmed to make its TrueAllele DNA comparisons, the

assumption that is the key part of that programming may be critical as to the outcome of

the test. This is one of the inevitable consequences of what is called probabilistic

genotyping methodology. In this case, for instance, programming the computer with the

assumption that there were two contributors to the DNA swab on the revolver (Heather

Ladd as the major contributor and one other minor contributor) led to the result that the

appellant could probabilistically be considered the minor contributor. Programming the

computer with the assumption that there were three contributors (two minor contributors),

on the other hand, would not have identified the appellant as a likely minor contributor. He

would have been excluded.

       Determining the assumption or assumptions with which to program the computer is

a subjective decision made by the person conducting the TrueAllele test. It was, moreover,

an absolutely critical decision to have made in this case. At Monday’s admissibility

hearing, the acknowledgement of Mr. Heibert was revealing. The assumption he

programmed into the computer was that there were two contributors, one of them being the

minor contributor.

              A. The only thing to put in is how many contributors, how many


                                            45
       people, to look for and how long to run. So the longer you run, the more
       precise your results.

                Q. And how many contributors did you tell TrueAllele when you ran
       it the first time?

               A. Two.

(Emphasis supplied).

       Mr. Heibert acknowledged, on Monday, that the assumption chosen was a

subjective determination.

       How did you come to that determination for two contributors?

              A. By looking at the profile, I determined that most likely it was two
       contributors. There is a possibility of a third, but I did not think that if there
       was a third it would be informative enough for TrueAllele to find a good
       profile.

(Emphasis supplied).

       On cross-examination, Mr. Heibert admitted, on Monday, that there could have been

three (or more) contributors, but that he did not ask the computer to make that additional

calculation.

               Q. Okay. So there could be two people. There could be three, correct?

               A. Yes.

               Q. And there could be more?

               A. Yes, but it’s unlikely that there’s any more than three.

               Q. Unlikely any more than three?

               A. Yes.

(Emphasis supplied).



                                              46
       The determination of how many contributors there were can be complicated by such

other factors as “drop in alleles” and “drop out alleles.”

             Q. And that’s an indication that this is a mixture of at least three
       people, not two people, correct?

              A. It’s possible that there are three people, but it’s also possible that
       one of those alleles could be drop in.

(Emphasis supplied).

       Mr. Heibert conceded, on Monday, that he could have ordered an additional test on

the assumption that there could have been three contributors but that he did not do so.

       But as I said, though I was uncertain of the exact number of contributors, I
       felt as though two contributors was the best assumption given the data I had.

              Q. But given the fact that there was evidence that this could be a three-
       contributor mixture, your SOP says let the computer assess the data under
       different assumptions. You never had the computer assess this data under the
       assumption of three contributors?

              A. No, I did not.

             Q. And you have no idea how the likelihood ratio would change had
       the computer assessed the data under that assumption?

              A. No, I can’t be sure.

(Emphasis supplied).

       On the critical question of which assumption to program into the computer, Dr.

Word, on the other hand, felt that a three-contributor assumption would have been

preferable to a two-contributor assumption. She testified on Monday:

               There’s clearly a low-level minor, one or more minor contributors.
       It’s not possible to know whether it’s two or three or four or five contributors
       in this mixture. We simply don’t know that.



                                             47
              It could be evaluated under those different scenarios, and there’s
       reasons to do it under those different scenarios. I think there’s a pretty high
       likelihood this is not a two-person mixture. It’s probably more likely a three
       or even more person mixture.

             THE COURT: So then what you’re saying based on the data -- you
       would have come to a different interpretation of it than Mr. Heibert did.

                THE WITNESS: Well, I don’t have the TrueAllele system available
       to me, so I suspect if I plugged in this data in the same way that he did into
       TrueAllele, based on what I know about the system, I would probably
       generate similar -- a similar likelihood ration. It could be a little higher or a
       little lower.

              But I’m not sure -- I don’t -- I’m not confident that only looking at a
       two -- using it as a two-person mixture is appropriate.

             THE COURT: Well, I guess that you’re saying -- he should have put
       in more than a two-person contributor?

               THE WITNESS: That’s correct.

               THE COURT: That’s what you’re saying.

               THE WITNESS: That’s correct.

(Emphasis supplied).

       Dr. Word’s conclusion would have excluded the appellant from being the minor

contributor.

              A. My conclusion is that there are genotypes present that are not
       consistent with Mr. Morten. Under the assumption of only two contributors
       with only one minor, he cannot be the minor. And he’s certainly not the major
       contributor. So he would be excluded under that set of assumptions as a
       contributor.

(Emphasis supplied).

       That absolutely crucial defense testimony, however, was before the admissibility

hearing on Monday but was not before the jury on Wednesday. When counsel attempted


                                              48
to explore on Wednesday the crucial mistake that could be made by programming the

wrong assumption into the computer about the number of contributors, that testimony was

precluded. She had been expert enough on Monday but was no longer expert enough on

Wednesday.

               [DEFENSE COUNSEL]: I think my question was tell us whether the
       likelihood ratio statistic would be affected if the computer assumed three
       rather than two contributors. And she’s been qualified as an expert on
       statistical analysis.

             THE COURT: Well, you don’t have to say all that, [defense counsel].
       What’s your objection?

              [THE STATE]: So one; leading and two; she was not qualified as an
       expert in statistical analysis. I specifically said that she was only qualified --

              THE COURT: Yeah, that’s true, she was not. So --

              [DEFENSE COUNSEL]: But she has experience.

               THE COURT: Well, no, she’s not qualified. She can’t give an expert
       opinion on that. You can rephrase that question to whatever you want, but
       the first one she’s right, you were leading and she’s not qualified as to
       statistical analysis. You offered her not as that.

(Emphasis supplied).

                          Reliability Is Both A Continuum
                       And Various Points On The Continuum

       Gertrude Stein to the contrary notwithstanding, it is not necessarily true that

reliability is reliability is reliability. Sometimes it is not. Reliability alpha must not be

confused with reliability beta. Reliability is protean.

       Reliability in the context of Monday’s general admissibility issue may have been

decided, but reliability in the very different context of jury persuasion had not been



                                              49
decided. Reliability alpha may have been decided but reliability beta had not remotely been

decided. Reliability is not a monolith.

       At that point, of course, the court was comparing apples and oranges. That

misconception as to what had or had not already been decided permeated Dr. Word’s entire

testimonial appearance at the trial proper on Wednesday. Monday’s legal decision should

not in any way have inhibited the purely evidentiary decision on Wednesday. The legal

decision on Monday, of course, had been that the DNA testing was automatically

admissible pursuant to Courts and Judicial Proceedings Article, Sect. 10–915(b)(3) and the

fact that the DNA testing has been validated by the Federal Bureau of Investigation’s

Quality Assurance Standards for DNA Testing Laboratories. That did not address in any

way its persuasive impact, or lack of impact, on the jury.

       Admissibility of a test result as a matter of law, however, does not in any way limit

the opponent of the evidence from challenging its persuasive weight as a matter of fact.

Even in the face of admissibility, the opponent of the evidence is fully entitled to challenge

the evidence by various means, as Judge Friedman had observed in Phillips v. State.

       This is not to say that Phillips could not challenge the DNA evidence on the
       basis of a lack of stochastic threshold. Rather, it is our view that the proper
       avenue to do so was either to cross-examine Charak or to call a rebuttal expert
       to attack the weight of the evidence.

226 Md. App. at 22–23 (emphasis supplied).

       For the Court of Appeals in its Phillips v. State, Judge Getty was in emphatic

agreement. The issue of admissibility is only the opening round. The defendant still enjoys

an inalienable right to expose the weaknesses of and to diminish the weight of the test



                                             50
results being offered against him. Threshold admissibility, as a matter of law, does not

establish ultimate persuasion, as a matter of fact.

              That the DNA evidence was automatically admissible under the
       Statute does not mean that Mr. Phillips was entirely unable to challenge such
       evidence. Mr. Phillips could have attacked the weight to be given the DNA
       evidence based on the lack of an accepted standard for analyzing complex,
       low-template DNA samples by either cross-examining Ms. Charak at trial or
       calling a rebuttal expert as he did at the pretrial hearings.

451 Md. at 207 (emphasis supplied).

       In instance after instance, Dr. Word was prevented on Wednesday from pointing out

before the jury many of the challenges to TrueAllele testing that she had voiced on Monday.

Throughout Dr. Word’s testimony on Wednesday, the trial judge made it repeatedly clear

that she believed that many of the attacks that Dr. Word was attempting to make on the

TrueAllele testing modality were attacks on the system’s reliability and that the court had

already ruled on reliability and that that settled the matter.

       Defense counsel attempted to get Dr. Word to explain that there were limits to the

system that had not yet been tested. The ruling again was that the question challenged

TrueAllele’s reliability and that reliability had already been ruled upon.

              [DEFENSE COUNSEL]: So I think that’s exactly what her opinion is
       going to be, that in fact, we don’t know the limits of the system and that’s
       the problem.

              THE COURT: But that goes to reliability.

              [DEFENSE COUNSEL]: Yes.

              THE COURT: And I’ve already ruled on that.

(Emphasis supplied).



                                              51
       At the close of Wednesday’s proceeding, the court went so far as to tell the defense

that it would not be permitted to argue the issue of TrueAllele’s reliability to the jury.

              [DEFENSE COUNSEL]: You asked me about relevance.

              THE COURT: We’re way past this reliability thing because I’ve
       already made that ruling and I told you --

              [DEFENSE COUNSEL]: So what I need to do then --

              THE COURT: -- that the Defense would not be arguing reliability to
       the jury.

              [DEFENSE COUNSEL]: Well, I think we have the absolute right to
       argue upon reliability.

              THE COURT: And I said you won’t.

(Emphasis supplied).

       Just before jury argument commenced, however, the judge ruled that defense

counsel would, indeed, be permitted to argue reliability to the jury on the ground that the

State had opened the door to the reliability argument. It was, however, a hollow victory.

Defense counsel could argue reliability, but defense counsel could only argue the limited

evidence that Dr. Word had been permitted to offer. Defense counsel may have been

permitted to fire away rhetorically, but the defense arsenal was effectively bereft of

ammunition. We hold that the appellant was at two or three critical junctions erroneously

prohibited from challenging the TrueAllele test results that linked him to the ostensible

murder weapon.




                                              52
JUDGMENT VACATED AND CASE
REMANDED      FOR       FURTHER
PROCEEDINGS; COSTS TO BE PAID BY
MAYOR AND CITY COUNCIL OF
BALTIMORE.




 53
