Phillips v. State , 451 Md. 180 ( 2017 )

Richmond D. Phillips v. State of Maryland, No. 7, September Term, 2016. Opinion by
Getty, J.
MOOTNESS — EFFECT OF PROSPECTIVE AMENDMENTS TO STATUTE —
A court’s interpretation of a statute is not rendered moot due to amendments to the statute
that took effect while case was on appeal and apply only prospectively. There is still an
existing controversy between the parties when the court must determine whether the State
satisfied the requirements of the statute as it existed at the time of trial, and the court can
still fashion an effective remedy by deciding on the proper interpretation of the previous
version of the statute.
CRIMINAL LAW — DNA ADMISSIBILITY STATUTE (COURTS & JUDICIAL
PROCEEDINGS § 10-915) — COMPLIANCE WITH DNA TESTING
STANDARDS — The previous version of the DNA Admissibility Statute provided that
DNA evidence is automatically admissible if the analysis was performed in accordance
with “standards established by TWGDAM or the DNA Advisory Board.” The Federal
Bureau of Investigation’s Quality Assurance Standards (“QAS”) are standards established
by the DNA Advisory Board. Thus, the Laboratory’s DNA analysis, performed in
accordance with the QAS, satisfied the DNA Admissibility Statute’s requirements and was
automatically admissible at trial.
Circuit Court for Prince George’s County
Case No. CT 11-1027X
Argued: October 6, 2016
IN THE COURT OF APPEALS
OF MARYLAND
No. 7
September Term, 2016
Richmond D. Phillips
v.
State of Maryland
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Getty
Battaglia, Lynne A.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Getty, J.
Filed: January 20, 2017
This appeal requires us to determine whether a deoxyribonucleic acid (“DNA”)
analysis conducted in accordance with the Federal Bureau of Investigation’s (“FBI”)
Quality Assurance Standards (“QAS”) qualifies for automatic admissibility under § 10-915
of the Courts and Judicial Proceedings Article (“CJP”) of the Maryland Code. Petitioner
Richmond Phillips argues that the DNA evidence is not admissible because the analysis
was not performed in accordance with standards established by one of the two entities
named in CJP § 10-915 (“DNA Admissibility Statute”), and because the methods of
analysis that were used are not generally accepted as reliable in the relevant scientific
community under Frye-Reed.1 The trial court and the Court of Special Appeals agreed
with Mr. Phillips that the DNA evidence did not qualify for automatic admissibility under
§ 10-915, but held that the evidence was nonetheless admissible under Frye-Reed. Mr.
Phillips now challenges the latter conclusion, while the State challenges the former.
For the reasons that follow, we hold that the DNA evidence was automatically
admissible under CJP § 10-915. Accordingly, the trial court should not have conducted a
Frye-Reed hearing to determine its admissibility, and we will not address Mr. Phillips’
contention that the trial court’s ruling at that hearing was erroneous.
BACKGROUND
1
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 (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 establish such general acceptance if the
admissibility of the evidence is challenged.
The State charged Mr. Phillips with the first-degree murders of his ex-girlfriend,
Wynetta Wright, and their eleven-month-old daughter, Jaylin Wright, which took place on
May 31, 2011. Wynetta died of a gunshot wound to the head. Her body was found in a
park near the Hillcrest Heights Community Center in Prince George’s County. Jaylin died
of hyperthermia as a result of being left in a hot vehicle for an extended period of time.
Her body was found in Wynetta’s car in a parking lot near the park. Mr. Phillips admitted
to meeting with Wynetta in the park in the early morning hours of May 31, but denied any
involvement in her death or Jaylin’s death.
The police obtained DNA samples from the crime scenes, the victims, and Mr.
Phillips, which were tested in June 2011 by forensic chemist Jessica Charak of the Prince
George’s County Police Department Crime Laboratory (“Prince George’s County
Laboratory” or “Laboratory”). Two samples are relevant to this appeal: a buccal swab2
from Mr. Phillips, and a sample obtained from the steering wheel of Wynetta’s car. Based
on Ms. Charak’s analysis, she concluded that the steering wheel sample was consistent
with Mr. Phillips’ DNA profile and, therefore, he could not be excluded as a contributor to
the sample. Ms. Charak found that the steering wheel sample also contained genetic
material from Wynetta, Jaylin, and at least two additional unknown contributors. Ms.
Charak calculated that “[t]he chances of selecting an unrelated individual from the random
population who would be included as a possible contributor to the mixed DNA profile
2
A buccal swab “is obtained by swabbing the cheek area inside a person’s mouth.” Derr
v. State, 434 Md. 88, 99 n.6 (2013) (quoting Young v. United States, 63 A.3d 1033, 1036
n.3 (D.C. 2013)).
2
obtained from the evidence sample . . . are approximately . . . 1 in 2.93 million individuals
in the African American population.”
Prior to trial, Mr. Phillips filed a motion in limine to exclude the State’s DNA
evidence and related expert testimony. Mr. Phillips argued that the Prince George’s County
Laboratory’s methods of analyzing complex, low-template DNA3 samples were not
generally accepted as reliable in the relevant scientific community, and thus the evidence
was inadmissible under Frye-Reed. The State responded that the DNA evidence and
related expert testimony were automatically admissible under CJP § 10-915, and thus a
Frye-Reed hearing was not necessary to determine admissibility.
The DNA Admissibility Statute in effect throughout Mr. Phillips’ proceedings
provided that DNA evidence “is admissible to prove or disprove the identity of any
person,” so long as certain conditions are fulfilled:
(a) Definitions. —
(1) In this section the following words have the meanings indicated.
(2) “Deoxyribonucleic acid (DNA)” means the molecules in all
cellular forms that contain genetic information in a chemical structure
of each individual.
3
A “complex” DNA sample is defined as a mixture “with more than two contributors.”
President’s Council of Advisors on Science and Technology, Report to the President:
Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison
Methods 75 (Sept. 2016),
https://www.whitehouse.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_sci
ence_report_final.pdf [https://perma.cc/862G-P9C4]. “Low-template,” “low-copy-
number,” “touch,” or “trace” DNA analysis all refer to “testing minuscule amounts of DNA
that fall below the (somewhat amorphous) stochastic threshold—around 100 picograms or
less.” United States v. Davis, 602 F. Supp. 2d 658, 669 (D. Md. 2009).
3
(3) “DNA profile” means an analysis of genetic loci that have [sic]
been validated according to standards established by:
(i) The Technical Working Group on DNA Analysis Methods
(TWGDAM); or
(ii) The DNA Advisory Board of the Federal Bureau of
Investigation.
(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 or the DNA Advisory Board is sufficient to
admit a DNA profile under this section.
(c) Purposes. — In any criminal proceeding, the evidence of a DNA profile
is admissible to prove or disprove the identity of any person, if the party
seeking to introduce the evidence of a DNA profile [complies with specified
notice requirements].
CJP § 10-915 (1998) (emphasis added) (amended 2016). Ms. Charak’s report contained
the following statement of validation: “The DNA profiles reported below were determined
by procedures which have been validated according to the Federal Bureau of
Investigation’s Quality Assurance Standards for Forensic DNA Testing Laboratories.”
(Emphasis added.)
The trial court conducted two hearings to determine the admissibility of the DNA
evidence. First, the trial court held a hearing to determine whether the Prince George’s
County Laboratory was in compliance with the DNA Admissibility Statute, which would
render the evidence automatically admissible without the need for a Frye-Reed hearing. At
this initial hearing, the trial court determined that the Laboratory was not in compliance
with the Statute, and therefore the DNA evidence was not automatically admissible. Next,
the trial court conducted a Frye-Reed hearing to determine whether the Laboratory’s
methods of analysis were generally accepted as reliable within the relevant scientific
4
community. The trial court concluded that the Laboratory’s methods satisfied this
standard, and therefore the DNA evidence would be admissible at trial.
Mr. Phillips was tried before a jury beginning on January 14, 2013. The trial court
admitted into evidence the analysis of the buccal swab and steering wheel sample, and Ms.
Charak testified regarding her conclusions. On January 17, 2013, the jury convicted Mr.
Phillips of the first-degree murders of Wynetta and Jaylin, and related charges. On March
22, 2013, the trial court sentenced Mr. Phillips to two consecutive terms of life
imprisonment without the possibility of parole. Mr. Phillips appealed, and the Court of
Special Appeals affirmed the convictions. Phillips v. State, 226 Md. App. 1, 4 (2015). Mr.
Phillips then petitioned this Court for a writ of certiorari, requesting review of whether the
lower courts erred in holding that the DNA evidence was admissible under Frye-Reed.4
The State filed a conditional cross-petition, requesting review of whether the lower courts
4
Mr. Phillips presented the following questions in his petition for writ of certiorari:
1. Under the Frye-Reed standard (“the basis of [a scientific] opinion must be
shown to be generally accepted as reliable within the expert’s particular
scientific field”) what is “generally accepted as reliable” in analyzing and
interpreting complex mixtures of low template “touch” DNA?
2. In this case, was the Prince George’s County Crime Lab’s methodology,
which lacked any protocols for the analysis and interpretation of complex
mixtures of low template DNA, including a stochastic threshold, use of a
non-validated filtration technique, and misuse of an inclusion probability
calculation, “generally accepted as reliable” in the relevant scientific field?
3. Did the Court of Special Appeals improperly deviate from Frye-Reed by
reaching a conclusion without considering evidence from the relevant
scientific community, other than the two opinions expressed at a pretrial
hearing?
5
erred in holding that the DNA evidence did not qualify for automatic admissibility under
CJP § 10-915.5 We granted both the petition and the cross-petition on March 25, 2016.
Phillips v. State, 446 Md. 704 (2016).
STANDARD OF REVIEW
The trial court’s determination that the Prince George’s County Laboratory was not
in compliance with the DNA Admissibility Statute, to the extent that this is a factual
finding, will not be set aside unless clearly erroneous. See Bottini v. Dep’t of Fin., 450 Md.
177, 187 (2016) (“We give due regard to the trial court’s role as fact-finder and will not set
aside factual findings unless they are clearly erroneous.” (quoting Breeding v. Koste, 443
Md. 15, 27 (2015))). However, “[w]hen the trial court’s decision involves an interpretation
and application of Maryland statutory and case law, our Court must determine whether the
[trial] court’s conclusions are legally correct.” Id. (second alteration in original) (quoting
Breeding, 443 Md. at 27).
DISCUSSION
Mr. Phillips argues that the trial court erred in admitting the DNA evidence at trial
because the State did not establish at the Frye-Reed hearing that the methods used by the
Prince George’s County Laboratory in conducting its analysis are generally accepted as
reliable within the relevant scientific community. Before we can address that argument,
5
The State presented the following question in its conditional cross-petition:
Did the Court of Special Appeals err in holding that compliance with Section
10-915 of the Courts and Judicial Proceedings Article required certification
of meeting a nonexistent standard neither party advocated?
6
however, we must determine the threshold issue of whether Mr. Phillips was even entitled
to a Frye-Reed hearing regarding the DNA evidence.
In Maryland, scientific evidence can become admissible either by statute, “if a
relevant statute exists,” or by establishing general acceptance in the relevant scientific
community under Frye-Reed. Armstead v. State, 342 Md. 38, 54 (1996). Here, a relevant
statute exists—the DNA Admissibility Statute, CJP § 10-915. The DNA Admissibility
Statute provides that DNA evidence is admissible so long as certain notice requirements
are met and the analysis is accompanied by “[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.” CJP § 10-915 (1998) (amended 2016). “When
the General Assembly has enacted legislation rendering evidence admissible, ‘the only way
to contest the validity of the underlying principles involved would be to argue that the
statutes violate one’s right to due process of law.’” Armstead, 342 Md. at 57 (quoting L.
McLain, Maryland Evidence § 401.4(c), at 278 (1987 & 1999 Cum. Supp.)). Mr. Phillips
has not argued before this Court that the DNA Admissibility Statute violates his right to
due process.6 Thus, if the DNA evidence offered by the State at Mr. Phillips’ trial satisfied
the requirements of § 10-915, then Mr. Phillips was not entitled to a Frye-Reed hearing to
6
At the initial hearing in the trial court to determine whether CJP § 10-915 applied, defense
counsel argued that, even if the Statute did apply, Mr. Phillips would still be entitled to “a
hearing pursuant to the Due Process Clause, because ultimately what the State is seeking
to introduce is unreliable scientific evidence.” However, Mr. Phillips waived his due
process argument by failing to assert it either in his brief or at oral argument before this
Court. See Ricker v. Abrams, 263 Md. 509, 516 (1971) (holding that appellant’s failure to
make an argument in her brief or at oral argument constitutes waiver of the argument).
Accordingly, we will not address it.
7
determine its admissibility. Therefore, we must first determine whether the DNA evidence
introduced against Mr. Phillips qualified for automatic admissibility under CJP § 10-915.
A. The Parties’ Contentions and Lower Courts’ Rulings
Mr. Phillips argues that the DNA evidence was not automatically admissible under
CJP § 10-915 because Ms. Charak’s report was not accompanied by a statement that the
analysis had “been validated by standards established by TWGDAM or the DNA Advisory
Board,” as required by the Statute. Instead, the report was accompanied by a statement
that the Prince George’s County Laboratory’s procedures had “been validated according to
the Federal Bureau of Investigation’s Quality Assurance Standards for Forensic DNA
Testing Laboratories.” Mr. Phillips asserts that this statement of validation is not sufficient
for automatic admissibility under the Statute.
The State responds that the DNA evidence was automatically admissible under CJP
§ 10-915 because Maryland law requires state forensics laboratories to adhere to the QAS
for DNA testing. See Md. Code, Pub. Safety § 2-503(b) (requiring state laboratories to
comply with federal standards for inclusion in the Combined DNA Index System). The
two entities named in the Statute no longer exist, and the QAS are now the relevant
standards. Therefore, the State asserts, a statement of validation that the Prince George’s
County Laboratory’s procedures had been validated according to the QAS should be
sufficient for automatic admissibility under CJP § 10-915.
The trial court agreed with Mr. Phillips that the Prince George’s County
Laboratory’s statement of validation was not sufficient for automatic admissibility under
the Statute. Because TWGDAM and the DNA Advisory Board were no longer in existence
8
at the time the Laboratory performed its analysis, the court found that TWGDAM’s
successor, “SWGDAM[,] is now the entity that sets forth the standards for DNA testing.”
The trial court then interpreted the Statute by “substituting” SWGDAM for TWGDAM,
and held that compliance with SWGDAM guidelines was required for automatic
admissibility under CJP § 10-915. The court found that SWGDAM had guidelines for
interpreting complex DNA mixtures, which the Laboratory did not follow when it
performed its analysis. Thus, the trial court held that the Laboratory’s compliance with the
QAS was not sufficient for automatic admissibility under CJP § 10-915, and proceeded to
conduct a Frye-Reed hearing to determine whether the DNA evidence could be admitted
at trial. The trial court ultimately determined that the DNA evidence was admissible under
Frye-Reed, and the State introduced Ms. Charak’s report and testimony at trial.
Before the Court of Special Appeals, Mr. Phillips asserted that the trial court’s ruling
on the State’s noncompliance with § 10-915 was correct, but challenged the trial court’s
ruling on admissibility under Frye-Reed. In response, the State erroneously asserted that
the trial court had found that the Prince George’s County Laboratory’s statement of
validation was sufficient under the Statute, and therefore the court was precluded from
even holding a Frye-Reed hearing to determine the admissibility of the DNA evidence.
Neither party explicitly addressed how the appellate court should interpret § 10-915 in light
of the fact that the two entities named in the Statute no longer exist.
The Court of Special Appeals framed the issue as “decid[ing] what to do with a
statute that appears to be obsolete.” Phillips, 226 Md. App. at 3. The court then presented
a lengthy discussion of how to deal with obsolete statutes, id. at 8–12, an examination of
9
the legislative history of § 10-915, id. at 12–14, and a comparison of the current and
previous standards-setting bodies for DNA testing. Id. at 14–16. Following this analysis,
the Court of Special Appeals concluded that a DNA analysis would be automatically
admissible under § 10-915 if accompanied by a statement of validation “pursuant to
standards promulgated by SWGDAM.” Id. at 15. In contrast, the court concluded that a
DNA analysis conducted pursuant to the QAS would not be sufficient for automatic
admissibility under the Statute. Id. at 16. In other words, the Court of Special Appeals
agreed with the trial court’s interpretation of § 10-915, and held that the lower court was
correct in holding a Frye-Reed hearing to determine the admissibility of the DNA evidence.
Id. The Court of Special Appeals then held, in agreement with the trial court, that the DNA
evidence was admissible under Frye-Reed. Id. at 22. Mr. Phillips petitioned this Court to
review the lower courts’ rulings that the DNA evidence was admissible under Frye-Reed.
The State filed a conditional cross-petition, seeking review of the lower courts’
interpretation of § 10-915.
B. Mootness
After we granted certiorari on Mr. Phillips’ petition and the State’s cross-petition,
Mr. Phillips filed a motion to dismiss the State’s cross-petition as moot. Mr. Phillips argues
that this Court need not decide whether the Court of Special Appeals’ interpretation of §
10-915 is correct, because the version of the Statute that that court interpreted is no longer
in effect. During the 2016 Legislative Session, the General Assembly passed an
amendment to CJP § 10-915 so that the Statute now references the QAS, in addition to
TWGDAM and the DNA Advisory Board, as providing the DNA testing standards that
10
must be followed for automatic admissibility. See 2016 Md. Laws, ch. 570. These changes
to the statutory language were adopted directly in response to the Court of Special Appeals’
opinion below. The State maintains that its cross-petition is not moot because there is still
an existing controversy between the parties—namely, whether the State’s DNA evidence
was automatically admissible at Mr. Phillips’ trial under the previous version of § 10-915.
In addition, the State notes that the amended Statute applies only prospectively to offenses
committed on or after the effective date of October 1, 2016, see id., so this Court’s
resolution of how to interpret the previous version could potentially affect “many, many
other pending cases” involving DNA evidence.
“A case is moot when there is no longer any existing controversy between the parties
at the time that the case is before the [C]ourt, or when the [C]ourt can no longer fashion an
effective remedy.” Green v. Nassif, 401 Md. 649, 654 (2007) (quoting In re Kaela C., 394
Md. 432, 452 (2006)). The Court does not issue advisory opinions, and thus moot cases
are generally dismissed “without a decision on the merits.” Id. at 655 (quoting Dep’t of
Human Res., Child Care Admin. v. Roth, 398 Md. 137, 143 (2007)).
Here, there is still an existing controversy between the parties. The controversy is
whether the DNA evidence qualified for automatic admissibility at Mr. Phillips’ trial
pursuant to the previous version of § 10-915. Because § 10-915 was recently amended to
make explicit that compliance with the QAS is sufficient for automatic admissibility, the
parties’ dispute over whether the Prince George’s County Laboratory’s compliance with
the QAS was sufficient in this case would already be resolved if the offense had been
committed on or after October 1, 2016. However, because the 2016 amendments to the
11
Statute apply only prospectively, we still must determine whether the Laboratory complied
with the previous version of the Statute, which was in effect at all times relevant to this
proceeding: when the charged offenses occurred, when the Laboratory performed its
analysis, during the pre-Frye-Reed hearing, and during Mr. Phillips’ trial.
Additionally, this Court can fashion an effective remedy by deciding the proper
interpretation of the previous version of the Statute, and either affirming Mr. Phillips’
convictions or reversing them and remanding the case for a new trial (if we were to also
decide that the DNA evidence was not otherwise admissible, and that any error in admitting
it was not harmless).
Because there is still an existing controversy between the parties, and the Court can
fashion an effective remedy, we hold that the State’s cross-petition, regarding the proper
interpretation of § 10-915 before it was amended in 2016, is not moot. Accordingly, Mr.
Phillips’ motion to dismiss the State’s cross-petition as moot is denied.
C. Compliance with CJP § 10-915
Next, we address the merits of the State’s contention that the lower courts erred in
determining that the DNA evidence introduced against Mr. Phillips did not meet the
requirements for automatic admissibility under the DNA Admissibility Statute. As set out
above, CJP § 10-915(b) provided that “[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 is sufficient to admit a DNA profile under this
section.” The Prince George’s County Laboratory’s analysis was accompanied by a
statement that its procedures had “been validated according to the Federal Bureau of
12
Investigation’s Quality Assurance Standards for Forensic DNA Testing Laboratories.” We
must determine whether this statement of validation satisfies the requirement of § 10-
915(b).
Mr. Phillips maintains that the Prince George’s County Laboratory’s statement of
validation is insufficient because it does not explicitly state that the Laboratory’s analysis
had been validated by standards established by TWGDAM or the DNA Advisory Board.
In fact, Mr. Phillips asserts, the Laboratory’s analysis could not possibly include such a
statement because neither TWGDAM nor the DNA Advisory Board were in existence
when the Laboratory performed its analysis in June 2011. The State counters that since
TWGDAM and the DNA Advisory Board went defunct, state and federal law have required
forensics laboratories to adhere to the QAS. Therefore, the State concludes, although the
DNA Admissibility Statute does not explicitly mention the QAS, the Laboratory’s
compliance with those standards should be deemed sufficient for automatic admissibility
of the DNA evidence.
The trial court found as a matter of fact, and the Court of Special Appeals agreed,
that TWGDAM and the DNA Advisory Board were no longer in existence when the Prince
George’s County Laboratory performed its analysis in June 2011. See Phillips, 226 Md.
App. at 8, 15. The trial court also found as a matter of fact, and the Court of Special
Appeals agreed, that the Scientific Working Group on DNA Analysis Methods, or
SWGDAM, is the successor entity to TWGDAM. Id. at 14. Then, after examining the
legislative history of the DNA Admissibility Statute, the Court of Special Appeals
determined “that the legislature intended to create a statute that would track cutting-edge
13
DNA science and ensure automatic admissibility only if the DNA techniques complied
with the standards promulgated by the most rigorous standards-setting body available.” Id.
Next, the Court of Special Appeals compared SWGDAM guidelines for DNA testing to
the QAS, just as the trial court had done. Id. The intermediate appellate court noted that
while SWGDAM guidelines represent “rigorous standards for cutting-edge DNA
technology,” id. at 15, the QAS are simply “older protocols that are ‘good enough.’” Id.
at 16. The Court of Special Appeals then concluded (as had the trial court) that while a
DNA analysis conducted in accordance with SWGDAM guidelines would be sufficient for
automatic admissibility under the Statute, one that was conducted in accordance with the
QAS was not. Id. at 15–16. Therefore, the Court of Special Appeals held that the
Laboratory’s statement of validation was not sufficient under CJP § 10-915(b). Id. at 16.
The arguments from both Mr. Phillips and the State, as well as the conclusions of
the trial court and the intermediate appellate court, appear to be premised on a
misunderstanding of the evolution of TWGDAM, SWGDAM, the DNA Advisory Board,
and the QAS, and the relationship between these entities and the DNA Admissibility
Statute. In order to resolve this confusion, we will examine the interrelated histories of
these standards-setting bodies, and view them in the context of the legislative history of
the DNA Admissibility Statute. In doing so, we begin by setting forth this Court’s well-
established rules of statutory construction.
This Court provides judicial deference to the policy decisions enacted into law by
the General Assembly. We assume that the legislature’s intent is expressed in the statutory
14
language and thus our statutory interpretation focuses primarily on the language of the
statute to determine the purpose and intent of the General Assembly.
We begin our analysis by first looking to the normal, plain meaning of the
language of the statute, reading the statute as a whole to ensure that no word,
clause, sentence or phrase is rendered surplusage, superfluous, meaningless
or nugatory. If the language of the statute is clear and unambiguous, we need
not look beyond the statute’s provisions and our analysis ends. Occasionally
we see fit to examine extrinsic sources of legislative intent merely as a check
of our reading of a statute’s plain language. In such instances, we may find
useful the context of a statute, the overall statutory scheme, and archival
legislative history of relevant enactments.
Douglas v. State, 423 Md. 156, 178 (2011) (quoting Evans v. State, 420 Md. 391, 400
(2011)).
The General Assembly enacted CJP § 10-915 in 1989 to eliminate the need for
costly Frye-Reed hearings in every case for which the State sought to admit DNA evidence.
Armstead, 342 Md. at 57. Rather than continually relitigating whether DNA evidence had
achieved “general acceptance in the relevant scientific community” under Frye-Reed, § 10-
915 provided that DNA evidence is automatically admissible, so long as certain conditions
are met. Id. at 58. The 1991 version of the Statute specifically allowed for the automatic
admissibility of DNA evidence that was analyzed according to the restriction fragment
length polymorphism (“RFLP”) method. CJP § 10-915 (1991) (amended 1997). But by
1997, the RFLP method had become outdated, and was superseded by a new technique
called the polymerase chain reaction (“PCR”) method. Jud. Proc. Comm., Bill Analysis:
House Bill 414 (1997). Because the 1991 Statute specified only that DNA evidence
analyzed using RFLP was automatically admissible, state’s attorneys seeking to admit PCR
15
DNA evidence were once again forced to establish its admissibility under Frye-Reed on a
case-by-case basis. Id.
The General Assembly again sought to eliminate the need for Frye-Reed hearings
for every piece of DNA evidence by amending the Statute to reflect the advancements that
had occurred in the field of DNA analysis. Id. Initially, the legislature proposed to do this
by simply inserting the PCR method into the Statute alongside the RFLP method, such that
an analysis conducted utilizing either method would qualify for automatic admissibility.
See House Bill 414 – First Reading, 1997 Leg., 411th Sess. (Md. Jan. 24, 1997) (“‘DNA
profile’ means an analysis that utilizes the restriction fragment length polymorphism
analysis OR POLYMERASE CHAIN REACTION of DNA resulting in the identification
of an individual’s [patterned] chemical structure of genetic information.” (capitalization in
original to show addition to existing law) (brackets in original to show deletion from
existing law)). Before the bill was passed, however, it was amended to define “DNA
profile” as “an analysis of genetic loci that have [sic] been validated according to standards
established by . . . (I) . . . TWGDAM; or (II) The DNA Advisory Board.” House Bill 414,
1997 Leg., 411th Sess. (Md. 1997). Additionally, a statement from the testing laboratory
that the analysis had been validated accordingly would be sufficient for automatic
admissibility. Id.
Thus, rather than replace the RFLP method with PCR or any other specified method
of analysis, the General Assembly chose to delegate the power to approve new DNA
analysis techniques to two national standards-setting bodies: TWGDAM and the DNA
Advisory Board. While the Bill File for House Bill 414 (1997) does not expressly state the
16
reasoning behind these amendments, we infer that, given the Statute’s history, legislators
had realized that the science of DNA analysis was rapidly evolving, and any attempt by the
legal system to keep up would inevitably fall short. In effect, the General Assembly
decided that if a new technique was good enough for approval by one of these two entities,
then it was good enough for automatic admissibility in Maryland courts.7
TWGDAM was a group of private and public sector forensic scientists convened by
the FBI in 1988 to establish guidelines for DNA testing in forensic laboratories throughout
the country. Dep’t Legis. Servs., Fiscal and Policy Note (Revised), Senate Bill 637, at 2
(2016 Session).8 These “guidelines became de facto standards and were recognized by
courts as minimum requirements for a quality forensic DNA analysis program.”
SWGDAM, About Us.9
The DNA Identification Act of 1994 authorized the creation of the DNA Advisory
Board to develop and revise, as appropriate, “recommended standards for quality
assurance, including standards for testing the proficiency of forensic laboratories, and
forensic analysts, in conducting analyses of DNA.” 42 U.S.C. § 14131(a) (1994). This
legislation also provided that, “[u]ntil such time as the advisory board has made
recommendations to the Director of the Federal Bureau of Investigation and the Director
7
The Statute was amended again in 1998 without substantive change, and that version
remained in force until October 1, 2016. See 1998 Md. Laws, ch. 21 (revising reference to
“Maryland Rules of Criminal Procedure” in subsection (e) to “Maryland Rules”).
8
http://mgaleg.maryland.gov/2016RS/fnotes/bil_0007/sb0637.pdf
[https://perma.cc/Q46R-BXYX].
9
http://www.swgdam.org/about-us [https://perma.cc/2ZYK-CB2A].
17
has acted upon those recommendations, the quality assurance guidelines adopted by the
technical working group on DNA analysis methods [(TWGDAM)] shall be deemed the
Director’s standards.” § 14131(a)(4).
Pursuant to this legislation, the FBI Director established the DNA Advisory Board,
which began developing standards for DNA testing in 1995. SWGDAM, History &
Evolution of DNA QA Standards 19 (2015).10 The DNA Advisory Board issued two sets
of standards for forensics laboratories to follow. In July 1998, the Board issued the Quality
Assurance Standards for Forensic DNA Testing Laboratories, effective October 1, 1998.11
Id. at 20. In April 1999, the Board issued the Quality Assurance Standards for Convicted
Offender DNA Databasing Laboratories, effective April 1, 1999. 12 Id. Collectively, these
two documents are known as the FBI’s Quality Assurance Standards, or the QAS.
Unfortunately, the General Assembly’s attempt to keep the law on pace with
scientific advancements encountered unforeseen complications. In 1999, TWGDAM was
renamed the Scientific Working Group on DNA Analysis Methods, or “SWGDAM.”
SWGDAM, History & Evolution of DNA QA Standards, supra at 3. In December 2000,
10
http://media.wix.com/ugd/4344b0_2a8cb7c430304940853bd73b18772f23.pdf
[https://perma.cc/2BHD-JQN9].
11
FBI, Quality Assurance Standards for Forensic DNA Testing Laboratories,
https://archives.fbi.gov/archives/about-us/lab/forensic-science-
communications/fsc/july2000/quality-assurance-standards-for-forensic-dna-testing-
laboratories [https://perma.cc/7BCV-GH3C].
12
FBI, Quality Assurance Standards for Convicted Offender DNA Databasing
Laboratories, https://archives.fbi.gov/archives/about-us/lab/forensic-science-
communications/fsc/july2000/codis1a.htm [https://perma.cc/UB4M-YP89].
18
the DNA Advisory Board expired at the end of its statutory term and transferred its
responsibility for recommending revisions to the QAS to SWGDAM. Id. at 22; see also §
14131(b)(4) (“The board shall cease to exist on the date 5 years after the initial
appointments are made to the board . . . .”). Thus, by December 2000, both of the
standards-setting bodies named in the DNA Admissibility Statute had ceased to exist, at
least under the names specified in the Statute.
Recognizing this discrepancy in the statutory language, the General Assembly twice
attempted to amend CJP § 10-915 between 2000 and 2015. In 2001, House Bill 857
proposed to amend the Statute by simply replacing all references to “TWGDAM” with
“SWGDAM.” House Bill 857, 2001 Leg., 415th Sess. (Md. 2001). DNA evidence would
remain automatically admissible under the Statute if the analysis had “been validated by
standards established by [TWGDAM] SWGDAM or the DNA Advisory Board.” Id.
(brackets in original to show deletion from existing law). The House Judiciary Committee
gave the Bill an unfavorable report, and no further action was taken. General Assembly of
Maryland, Bill Info – House Bill 857.13
In 2006, House Bill 274 proposed to amend the DNA Admissibility Statute by
replacing both of the named entities—TWGDAM and the DNA Advisory Board—with the
QAS. House Bill 274, 2006 Leg., 421st Sess. (Md. 2006). “DNA profile” would be
defined as “an analysis of genetic loci that have [sic] been validated according to national
13
http://mgaleg.maryland.gov/webmga/frmMain.aspx?tab=subject3&ys=2001rs/billfile/
hb0857.htm [https://perma.cc/GV7D-E4FM].
19
quality assurance standards issued by the Director of the Federal Bureau of Investigation.”
Id. Additionally, DNA evidence would remain automatically admissible if the analysis
had “been validated according to standards issued by the Director of the Federal Bureau of
Investigation.” Id.
The Fiscal and Policy Note accompanying House Bill 274 notes that “[t]he
Department of State Police advises that the changes are technical in nature and do not
change the standards for admissibility in court.” Dep’t Legis. Servs., Fiscal and Policy
Note, House Bill 274, at 2 (2006 Session).14 The Office of the Public Defender (“OPD”)
opposed the Bill, and proposed that SWGDAM, rather than the QAS, should replace
TWGDAM and the DNA Advisory Board in the Statute. OPD, Position on Proposed
Legislation – House Bill 274 (Feb. 15, 2006). OPD explained that “[t]he SWGDAM entity
is expected to exist for the foreseeable future, reflects the views of the national forensic
science community as opposed to only those of the Director of the FBI and is the only
logical set of guidelines on which to base this legislation.” Id. The Maryland State Bar
Association (“MSBA”) also opposed the Bill, and similarly stated that “while SWGDAM
communicates among its members and updates its scientific findings regularly, the FBI
does not do so. To subject DNA evidence to standards approved in 1998 and 1999 by the
FBI ignores scientific developments which have been discovered since that time.” MSBA,
Position on House Bill 274 (Feb. 22, 2006). The Bill passed the House and received a
14
http://mgaleg.maryland.gov/2006rs/fnotes/bil_0004/hb0274.pdf
[https://perma.cc/F6KY-HQ9Z].
20
hearing in the Senate Judicial Proceedings Committee, but no further action was taken.
General Assembly of Maryland, Bill Info – House Bill 274.15
Meanwhile, the QAS issued by the DNA Advisory Board in 1998 and 1999
remained in force as the minimum requirements for DNA testing in forensics laboratories
throughout the country. The DNA Identification Act requires all DNA laboratories that
are federally funded or operated, or participate in the National DNA Index System, to
demonstrate compliance with the QAS. FBI, Combined DNA Index System (CODIS).16
The FBI monitors laboratories’ compliance with the QAS through its annual audit process.
Every other year, forensics laboratories must undergo an external audit to ensure that their
procedures comply with the QAS. During in-between years, the laboratories are permitted
to undertake an internal audit, where the laboratories’ own scientists evaluate their
procedures for compliance with the QAS. At the pre-Frye-Reed hearing in this case, Ms.
Charak testified that the National Forensic Science Technology Center performed an
external audit on the Prince George’s County Laboratory in July 2010, and determined that
the Laboratory was in compliance with the QAS.
Also during this time, SWGDAM continued its duty of periodically recommending
revisions to the QAS to reflect scientific and technological advancements in DNA testing.
SWGDAM, About Us, supra. In 2007, SWGDAM submitted to the FBI Director its
15
http://mgaleg.maryland.gov/webmga/frmMain.aspx?tab=subject3&ys=2006rs/billfile/
hb0274.htm [https://perma.cc/3SB3-TZL9].
16
https://www.fbi.gov/services/laboratory/biometric-analysis/codis
[https://perma.cc/T9KU-QQ5C].
21
recommendation for substantial revisions to the QAS. The FBI Director adopted these
recommendations and issued the first revised QAS in October 2008, with an effective date
of July 1, 2009.17 SWGDAM, History & Evolution of DNA QA Standards, supra at 31. In
2011, SWGDAM submitted its recommendation for additional, minor revisions to the
QAS, which were approved by the FBI Director with an effective date of September 1,
2011. Id. at 38–39. Thus, the 2007 version of the QAS were the relevant standards when
the Prince George’s County Laboratory performed its analysis in this case (in June 2011),
and when it was audited by the National Forensic Science Technology Center (in July
2010).
This history makes pellucid that the lower courts were correct in finding that
TWGDAM and the DNA Advisory Board did not exist under those names at the time the
Prince George’s County Laboratory received its statement of validation, or at the time the
analysis in this case was performed. However, that finding is not dispositive of whether
the Laboratory’s analysis satisfied the requirement of CJP § 10-915(b). All that is required
for automatic admissibility under that provision 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.” § 10-915(b). The Statute does
not require that either of these entities remain in existence at the time the procedures are
17
FBI, Important Notice of Revised Quality Assurance Standards for Forensic DNA
(2008), https://ucr.fbi.gov/lab/forensic-science-
communications/fsc/oct2008/index.htm/standards/2008_10_standards01.htm
[https://perma.cc/AX56-2HJL].
22
validated, or when the analysis is performed. As long as the laboratory’s procedures have
been validated by standards previously established by one of these entities, and the analysis
is performed in accordance with those validated procedures, then the analysis qualifies for
automatic admissibility under the Statute.
Although the QAS are not explicitly mentioned in the DNA Admissibility Statute
(before the 2016 amendments), they are literally “standards established by . . . the DNA
Advisory Board.” As described above, the QAS are two sets of standards for DNA testing
and databasing promulgated by the DNA Advisory Board in 1998 and 1999, respectively.
And while the FBI Director revised the QAS in 2007 at the recommendation of SWGDAM,
we do not believe that these subsequent revisions, by an entity not explicitly named in the
statute, transform the 2007 QAS into something other than “standards established by . . .
the DNA Advisory Board.”
Furthermore, we view the General Assembly’s decision not to amend the Statute
between 2000 and 2015, despite multiple proposals, as an indication that legislators did not
view the Statute as “obsolete” or ineffective. To the contrary, this inaction illustrates that
the previous version of the Statute continued to serve its purpose of allowing for the
automatic admissibility of DNA evidence without the need for Frye-Reed hearings. It was
not until the Court of Special Appeals interpreted the Statute as “obsolete” that the General
Assembly decided to amend the Statute for clarification. The 2016 amendments made clear
that, although the standards-setting bodies named in the Statute no longer exist under those
names, the standards they promulgated remain in effect.
23
Therefore, we hold that the Prince George’s County Laboratory’s statement of
validation, that the DNA analysis in this case was “determined by procedures which have
been validated according to the Federal Bureau of Investigation’s Quality Assurance
Standards for Forensic DNA Testing Laboratories,” satisfies the requirement of CJP § 10-
915(b).
D. Adequacy of the QAS
Alternatively, Mr. Phillips argues that even if compliance with the QAS is sufficient
for automatic admissibility under CJP § 10-915, it should not be sufficient to admit the
particular DNA analysis performed in this case because the QAS do not have standards
pertaining to complex, low-template DNA. The State responds that while the QAS do not
specifically address complex, low-template DNA, they also do not preclude analyses of
this category of DNA evidence. Therefore, the State asserts, because the Prince George’s
County Laboratory followed all applicable QAS when performing its analysis, the DNA
evidence qualifies for automatic admissibility under CJP § 10-915.
At the pre-Frye-Reed hearing, Ms. Charak—testifying for the State—and Dr.
Charlotte Word—testifying for Mr. Phillips—generally agreed that the QAS do not
specifically address complex, low-template DNA. Dr. Word testified that the QAS do not
distinguish between “two-person mixture[s], three-person mixtures, four-person mixtures,
good quality DNA, [or] low quality DNA.” Ms. Charak, when asked if she was “aware of
a standard that has been generally accepted within the scientific community for reliably
interpreting complex mixtures of low template DNA,” responded, “A standard? There is
no such standard.” Additionally, the trial court found that there were SWGDAM guidelines
24
“in place as of 2009” that dealt with complex DNA mixtures, but these guidelines had not
yet been adopted by the FBI Director and incorporated into the QAS. The trial court also
found that the Prince George’s County Laboratory was not following the SWGDAM
guidelines, and that it did “not have specific protocols as it relates to the complex mixtures
that are addressed in this case.”
The trial court’s findings that the QAS 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.
In essence, Mr. Phillips argues that mere compliance with the DNA Admissibility
Statute is not good enough for automatic admissibility when the DNA analysis at issue is
not covered by any applicable standards. However, the legislative history detailed above
and the recent amendments to the Statute make clear that CJP § 10-915 was not intended
to be a “best practices” statute. In 2006, both OPD and the MSBA opposed amending the
Statute to state that compliance with the QAS is sufficient for automatic admissibility.
Both organizations asserted that SWGDAM was the proper standards-setting body because
25
their guidelines reflect ongoing scientific development, whereas the QAS do not. See OPD,
Position on Proposed Legislation – House Bill 274, supra; MSBA, Position on House Bill
274, supra. Similarly, at the Senate Judicial Proceedings Committee hearing on the 2016
proposed amendments to the Statute, Stephen Mercer, Chief Attorney of the Forensics
Division of OPD,18 testified that the Statute should be amended such that compliance with
SWGDAM guidelines is required for automatic admissibility. Evidence – Admissibility of
DNA Profile – Definition and Validation of DNA Profile: Hearing on Senate Bill 637
Before Senate Committee on Judicial Proceedings, 2016 Leg., 436th Sess. (Md. 2016)
(statement of Stephen Mercer, Chief Attorney, Forensics Division, OPD). 19 Mr. Mercer
noted that the SWGDAM guidelines apply to “cutting-edge” DNA technology, while the
QAS do not. Id.
Despite these objections, the General Assembly passed and Governor Hogan signed
Senate Bill 637, which made explicit that compliance with the QAS is sufficient for the
automatic admissibility of DNA evidence. See 2016 Md. Laws, ch. 570. The current
Statute does not mention SWGDAM. We view this as an indication that CJP § 10-915 was
not intended to be a “best practices” statute, such that only DNA evidence that has been
analyzed in accordance “with the standards promulgated by the most rigorous standards-
setting body available” would qualify for automatic admissibility. See Phillips, 226 Md.
18
Mr. Mercer represented Mr. Phillips throughout the pretrial proceedings and at trial.
19
http://mgahouse.maryland.gov/mga/play/ec1ad150-0f06-4f22-863e-
a35337cd142b/?catalog/03e481c7-8a42-4438-a7da-93ff74bdaa4c&playfrom=12450000
[https://perma.cc/5542-DPUM].
26
Ohio App. at 14. Instead, the DNA Admissibility Statute allows for the admission of any DNA
evidence, both cutting-edge and traditional, without the need to establish its general
acceptance and reliability under Frye-Reed, so long as the analysis was performed in
accordance with the minimum requirements promulgated by the FBI. The Prince George’s
County Laboratory’s analysis complied with these minimum requirements; that the federal
standards do not specifically address analyses of complex, low-template DNA samples is
immaterial to admissibility under the Statute.
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. In fact,
defense counsel did cross-examine Ms. Charak regarding her qualifications to perform this
type of analysis and questioned the legitimacy of some of the methodologies she employed.
However, Mr. Phillips did not present his rebuttal expert, Dr. Word, to fully explain the
alleged issues with the analysis that Ms. Charak performed. As the Court of Special
Appeals noted, “[w]e find it telling that [Mr.] Phillips chose not to do so.” Id. at 23.
CONCLUSION
We hold that the statement of validation that accompanied the Prince George’s
County Laboratory’s analysis of the DNA evidence introduced against Mr. Phillips
satisfied the requirement of CJP § 10-915(b), and therefore the DNA evidence was
automatically admissible. The trial court erred in conducting a Frye-Reed hearing to
27
determine the admissibility of the DNA evidence, but that error was harmless because the
trial court ultimately reached the correct conclusion that the DNA evidence was admissible.
Accordingly, we affirm the judgment of the Court of Special Appeals.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS TO BE PAID BY PETITIONER.
28