# Akers v. State

> Court of Appeals of Maryland · February 19, 2025

URL: https://www.frixlaw.com/law-library/cases/10802091

## Case

- **Court:** Court of Appeals of Maryland
- **Decided:** February 19, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Booth
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- explaining that a reviewing court tests for legal error when considering whether evidence is legally relevant

## Opinion text

Moira E. Akers v. State of Maryland, No. 7, September Term, 2024, Opinion by Booth, J.

RELEVANCY—EVIDENCE OF INTERNET SEARCHES PERTAINING TO
ABORTION. A woman’s internet searches about terminating a pregnancy during a period
in which she would be able to legally obtain an abortion in this State were irrelevant as a
matter of law to show her intent to kill or harm a newborn many months later at birth. The
abortion searches were not probative of motive or intent to kill or harm a child. The
predicate fact—lawfully contemplating the termination of a pregnancy—does not support
the inferences advanced by the State—an intent, plan, or motive to kill or harm a person.

RELEVANCY—EVIDENCE OF A WOMAN’S LACK OF PRENATAL CARE. A
woman’s decision to forgo prenatal care, by itself, was not probative of motive or intent to
kill or harm a live child. Women forgo prenatal care for a variety of reasons, and the failure
to obtain such care is too speculative, ambiguous, and equivocal to support an inference
that she would be more likely to harm a live child or prevent a live child’s access to medical
care if care was necessary.

EXCLUSION OF PREJUDICIAL EVIDENCE—PERTAINING TO DISPARATE
PRENATAL CARE. To the extent that the State has argued before this Court for the first
time that a woman’s disparate prenatal care is relevant, given the argument was not raised
below, the Court declined to address it.
Circuit Court for Howard County
Case No.: C-13-CR-19-000367
Argued: September 9, 2024
IN THE SUPREME COURT

OF MARYLAND

No. 7

September Term, 2024

MOIRA E. AKERS

v.

STATE OF MARYLAND

Fader, C.J.,
Watts,
Booth,
Biran,
Gould,
Eaves,
Killough,

JJ.

Opinion by Booth, J.
Watts, J., concurs.
Biran and Gould, JJ., dissent.

Filed: February 19, 2025
Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2025.02.19
'00'05- 10:40:04
Gregory Hilton, Clerk
A woman’s right to terminate a pregnancy is one of the most divisive issues in this

country. Although abortion is a protected right in Maryland and a common event in many

women’s lives, it is highly stigmatized. In this case, we must consider whether evidence

of a criminal defendant’s internet searches on abortion in the early months of her pregnancy

was relevant to show her intent to kill or harm her newborn several months later at birth,

or, if marginally relevant, unfairly prejudicial.

The State of Maryland charged Petitioner, Moira E. Akers, in the Circuit Court for

Howard County with murder and child abuse resulting in the death of her newborn. The

charges arose in connection with Ms. Akers’ at-home delivery of the baby without her

husband’s knowledge that she was pregnant at the time. Ms. Akers was the sole witness

to the delivery. Ms. Akers maintains that the baby was stillborn, and the State contends

that the baby died of asphyxiation at Ms. Akers’ hands.

A jury convicted Ms. Akers of second-degree murder and child abuse resulting in

death. The trial court sentenced Ms. Akers to 30 years of imprisonment for murder and a

concurrent 20 years of imprisonment for child abuse resulting in death. The Appellate

Court of Maryland affirmed in an unreported decision.

This Court granted certiorari to determine whether evidence of Ms. Akers’ internet

searches about terminating a pregnancy during a period in which she would be able to

legally obtain an abortion in this State and her decision to forgo prenatal care are irrelevant

to an intent to kill or harm a newborn at birth, or, if marginally relevant, unfairly prejudicial.

We hold that the internet searches are irrelevant and that the trial court erred as a

matter of law in admitting them. We similarly hold that Ms. Akers’ bare decision to forgo
prenatal care was not probative of motive or an intent to kill or harm a live child. To the

extent that the State has asserted that evidence of disparate prenatal care was relevant,

given that this argument is being raised for the first time before this Court, we decline to

address it. In light of our holding on the inadmissibility of the abortion searches, we reverse

the judgment of the Appellate Court and remand this case to the circuit court for a new

trial. We provide some background facts as they were presented to the jury and the

procedural history that preceded this Court’s consideration of the case.

I

Ms. Akers and her husband, Ian Akers, lived in Columbia, Maryland, with their two

young children. Ms. Akers became pregnant in early 2018, and she initially disclosed her

pregnancy to her husband. At some point, she told her husband that the pregnancy was

ectopic and that it had ended.1 Ms. Akers did not tell anyone else that she was pregnant.

On November 1, 2018, at approximately 3:30 p.m., Ms. Akers delivered a baby

alone in her bathroom. When Mr. Akers returned home from the bus stop after picking up

their son, he found Ms. Akers in their bathroom bleeding profusely. Ms. Akers did not tell

Mr. Akers why she was bleeding. Mr. Akers called 911. Upon arrival, the first responders

found Ms. Akers sitting in her living room with her husband and two children. Ms. Akers

reported that she had been experiencing heavy vaginal bleeding for the past several hours.

She did not tell the first responders that she had just delivered a baby. She told them there

1
An ectopic pregnancy is a pregnancy that results from a fertilized female
reproductive cell implanting outside of the uterus. Erik Hendriks et al., Ectopic Pregnancy:
Diagnosis and Management, 101 Am. Fam. Physician 599, 599 (2020).
2
was no chance she was pregnant, and that she had an ectopic pregnancy some time ago.

When a paramedic asked if she wanted to go to the hospital, she said yes.

The first responders transported Ms. Akers to Howard County General Hospital.

She asked the staff not to share her medical information with her husband or her family. A

nurse met Ms. Akers in an examination room at the hospital; her clothing was saturated

with blood. Ms. Akers told the nurse about a purported pregnancy in May 2018. However,

she did not disclose that she had given birth that day until the nurse removed her clothing

and saw a severed umbilical cord protruding from Ms. Akers’ vagina. When questioned

by a hospital emergency room physician and an obstetrician who was on call at the time,

Ms. Akers finally admitted to delivering a baby at home. When asked about the baby’s

whereabouts, Ms. Akers told the doctors that it was in a closet at home in a plastic bag.

Hospital staff notified the first responders and law enforcement, who returned to the

Akers’ home in an effort to recover the baby. There was blood throughout the upstairs

hallway, bathroom, and bedroom. The first responders located the body of a male baby in

a bag with bloody towels. The baby was not breathing and had no pulse. Because the first

responders found no signs of life, they did not perform CPR.

In the meantime, hospital staff brought Ms. Akers to the labor and delivery unit to

deliver the placenta and repair her vaginal lacerations. Ms. Akers received a local

anesthetic and a narcotic intravenously, but she still could not tolerate the vaginal

examination. Ms. Akers was transferred to an operating room, where an anesthesiologist

administered intravenous sedation. The on-call obstetrician surgically repaired the vaginal

lacerations, and the surgery ended at 8:36 p.m.

3
A. Ms. Akers’ Post-Delivery Hospital Interviews

A little less than an hour after Ms. Akers awakened from the general anesthesia, she

was questioned by a detective assigned to the Family Crimes Division of the Howard

County Police Department and a Child Protective Services (“CPS”) social worker.2 The

following day, she was interviewed by the hospital’s perinatal social worker and

psychiatrist. During the interviews, she recounted her pregnancy and delivery.

1. Explanation of Pregnancy
Ms. Akers told the hospital’s perinatal social worker that she realized in late April

2018 that she may be pregnant and spoke to her husband about it. Their plans at that time

did not include a new pregnancy, and they discussed terminating it.

In May, Ms. Akers saw her doctor to confirm the pregnancy. The doctor told her

that the pregnancy was normal and that she was 15 weeks pregnant. According to Ms.

Akers, the doctor told her it was too late to terminate the pregnancy, although the medical

records reflect that the doctor provided her with information pertaining to clinics that

performed second-trimester abortions.

2
Prior to her criminal trial, Ms. Akers filed a motion to suppress statements that she
made to the detective while she was in the hospital. Ms. Akers argued that the court erred
in concluding that her statements to the detective were voluntary. The statements were
made within a few hours after Ms. Akers was placed under general anesthesia, which
involved the administration of midazolam, fentanyl, and propofol. On appeal, the
Appellate Court concluded, based upon the totality of the circumstances, that the State met
its burden of demonstrating by a preponderance of the evidence that Ms. Akers’ statements
were voluntary under both Maryland and federal law. Akers v. State, No. 0925, 2024 WL
338958, at *16 (Md. App. Ct. Jan. 30, 2024). In her petition for writ of certiorari, Ms.
Akers did not seek review of this issue. Accordingly, it is not before us.
4
Thereafter, Ms. Akers told her husband that the pregnancy was ectopic and that it

had ended. Ms. Akers explained to the detective that she failed to tell her husband that she

did not have the abortion for two reasons. First, she had decided to give up the baby for

adoption. Second, she told the detective that she was in “denial” over the pregnancy and

“[a]lmost” hoped something would happen so the pregnancy would go away. Still, she

never attempted to terminate the pregnancy.

Aside from initially disclosing the pregnancy to her husband, Ms. Akers did not tell

any family or friends that she was pregnant. Ms. Akers relayed to the detective that she

did not tell her family members about the pregnancy because they are Catholic, and she

would be stigmatized for considering an abortion or adoption.

For these reasons, Ms. Akers explained, she decided to use a safe haven for

newborns3 instead of giving “up the baby officially through adoption.” Ms. Akers similarly

described her safe haven plan to the hospital’s social worker, who reported that Ms. Akers

“identified significant denial and guilt in managing [the] pregnancy from June through

delivery yesterday but explains her plan at delivery was to bring the baby to the hospital or

fire department as a ‘Safe Haven.’”

On the day following the birth, Ms. Akers had a consultation with the hospital’s

psychiatrist, who noted the following:

[Patient] presented tearfully and emotional. She told me that she took a
pregnancy test in May because she was having [abdominal] pain and spotting

3
The “safe haven for newborns” statute that was in effect in 2018 provided that a
person who leaves an unharmed newborn with a responsible adult within ten days after the
newborn’s birth will have immunity from civil liability or criminal prosecutions. Md.
Code. Ann., Courts and Judicial Proceedings (“CJ”) § 5-641(a)(1) (2020 Repl. Vol.).
5
and found out that she was pregnant. She had to wait for her [obstetrical]
appointment x 2 weeks and at the appointment found out that it was too late
to terminate pregnancy. She told me that both her and her husband felt that
this is not a good time for them to have another child. She told husband that
she had an ectopic pregnancy and was given medication. She told me that
she was in denial. She told me that throughout the pregnancy she was not
showing at all and that only contributed to her denial of being pregnant. She
did not tell her family or friends and no one knew that she was pregnant.
Today [patient] reported that she feels mad and dissappointed [sic] with
herself that she “made stupid decisions.” She is worried that her family will
reject her because her sister is undergoing treatment for melanoma and may
not be able to have children at all.
2. Explanation of Delivery
In the hospital interviews, Ms. Akers consistently maintained that the baby was

stillborn. She stated that she had not felt the fetus moving inside of her for several days

and concluded “it had already passed.” She stated that she had not slept well the night

before the delivery because of the contractions. She continued to have contractions

throughout the day of her delivery and realized she was in labor. At the start of the day,

Ms. Akers dressed her son, made him breakfast, and packed lunch for him before resting

with her daughter. Her stomach began hurting, and she took a bath to try to make herself

feel better. Later in the day, she made lunch for her daughter and put her down for a nap.

She then began to rest, but the contractions started getting heavier, and her water broke.

She felt like she had to go to the bathroom, and, after trying to go to the bathroom for a

long time, she delivered the baby into the toilet.

Ms. Akers said she grabbed a nearby towel and immediately retrieved the baby from

the toilet. According to Ms. Akers, she detected no signs of life in the baby, which was

not moving, breathing, or crying. She stated that she was sad that the baby was stillborn.

She wrapped the body in a towel and carried the body from the bathroom to the bedroom.
6
Ms. Akers recounted that she heard no crying and saw no movement in the baby. She cut

the umbilical cord using cuticle scissors.

Ms. Akers explained that she did not know what to do, and that she did not ask for

help because she thought it was too late. She reported that she felt panicked, overwhelmed,

and scared. She placed the baby in a nearby plastic clothing bag and put the bag in the

closet under a blanket.

Although Ms. Akers’ husband was home throughout the day, he was meeting their

son at the school bus stop at the time of the delivery. Their daughter was still napping in

her crib. Ms. Akers was cleaning up blood in the bathroom when her husband found her.

She did not tell him that she had delivered the baby. Mr. Akers was overwhelmed by the

sight of the blood and called 911.

B. Criminal Investigation

Upon discovering the infant’s body in the closet, the police immediately treated the

Akers’ house as a crime scene. Police recovered a blood-soaked towel on the stairs and a

blood-soiled bathmat in the washing machine. Additionally, they recovered the pair of

scissors that Ms. Akers used to cut the umbilical cord. Police took Ms. Akers’ cellphone

and, upon inspection of the search history, discovered the self-help termination searches,

which had occurred between six and eight months before the delivery. We discuss the

termination searches in more detail below.

C. Pre-Trial Motions

Before trial, Ms. Akers filed a motion in limine asking the circuit court to exclude

evidence about the termination searches and her lack of prenatal care as irrelevant and

7
unfairly prejudicial. Ms. Akers pointed out that Maryland law prohibits the State from

interfering with a woman’s decision to abort a non-viable fetus.4 Ms. Akers also argued

that the State could not prove guilt by introducing evidence that a person was

contemplating exercising a constitutionally protected right.5 Regarding forgoing obstetric

prenatal care, Ms. Akers argued that there is no legal obligation to seek prenatal care and

that a pregnant woman cannot be prosecuted for failure to act with regard to her own fetus.

The prosecutor did not present any argument on the relevance of Ms. Akers’ lack of

prenatal care and instead focused exclusively on arguments related to the admissibility of

the termination searches. The prosecutor explained that the State intended to introduce

evidence that from March 2018 through May 2018, Ms. Akers “performed internet

searches on her phone and visited websites relating to how to cause a miscarriage and

abortion[,]” and that the searches included “inquiries regarding medicine for causing an

abortion.” The prosecutor argued that Ms. Akers’ abortion searches were “highly relevant

and probative of the elements” of the charges of murder and first-degree child abuse. The

prosecutor stated:

We must prove, Your Honor, that the Defendant intended to kill her baby.
And to prove the child abuse, we must prove that the Defendant caused
serious injury or death and that it was intentional, either to commit the acts
of abuse or failure to act. The fact that she was seeking to end her pregnancy

4
Md. Code Ann., Health-Gen. (“HG”) § 20-209(b)(1) prohibits the State from
interfering with a woman’s decision to terminate a pregnancy before the fetus is viable.
5
At the time of Ms. Akers’ trial, abortion was a federal constitutional right under
Roe v. Wade, 410 U.S. 113, 153 (1973), and Planned Parenthood v. Casey, 505 U.S. 833,
846 (1992). The Supreme Court decided Dobbs v. Jackson Women’s Health Organization,
597 U.S. 215, 232 (2022), after Ms. Akers’ trial.
8
is most highly relevant to proving her intent to kill the baby once it was born,
and her intentional failure to obtain care for her child after the child was born.

Also, the prosecutor argued that abortion evidence was relevant to Ms. Akers’ credibility:

Your Honor, additionally, after denying her pregnancy and the birth of her
baby to EMTs and then to hospital personnel on November 1st, the doctors
observed the umbilical cord and placenta. At which time, the Defendant
provided statements that the baby was stillborn. Your Honor, she advised
hospital personnel that she had been told it was too late to seek an abortion
in May of 2018.

The evidence regarding her prior seeking of an abortion and the searches
about abortion go to prove directly to her credibility, with respect to the
information that she provided, and her intent at the time she committed these
acts. Where, as here, Your Honor, you have the only witness to the birth as
the Defendant, and she says the baby is stillborn. The evidence that she is
lying certainly is relevant and probative, regarding her ability and wish to
terminate her pregnancy. And, you know, she had that ability to do so
legally, and chose not to do so in May of 2018. So, all of that goes to the
relevance of what her intent was when she delivered this child in November
of 2018, and then, as we are seeking to prove to the jury, killed that child.
Notwithstanding the fact that the prosecutor did not present any argument pertaining

to the admissibility of the lack of prenatal care, the trial court denied Ms. Akers’ motion in

full, ruling that “both the researching the abortion issue and the lack of prenatal care, once

the Defendant understands that she is expecting, are relevant to the issue of intent that the

State’s required to prove for their suggestion that it was a killing.” Also, the trial judge

stated that he “[did] not find that its prejudicial effect outweighs its probative value.”

D. Jury Trial

Ms. Akers’ jury trial occurred over eight days in April 2022. Given that the central

question presented for our review involves the admissibility of evidence related to Ms.

9
Akers’ termination searches and her lack of prenatal care, we provide only a cursory

overview of the other evidence for context.

1. General Overview of the Evidence

The central focus of the State’s case was on whether Ms. Akers’ pregnancy ended

with a live birth or a stillbirth.6 The State’s theory was that Ms. Akers killed her baby after

he was born alive. The defense maintained that Ms. Akers delivered a stillborn, who never

took a breath. To support its position of a live birth, the State called Dr. Nikki Mourtzinos,

the medical examiner who performed the autopsy. In the process of completing her

investigation and report, Dr. Mourtzinos performed tests and analyzed data to determine if

the fetus died in utero or after being born alive.7 Based upon these tests and her analysis,

6
To prove the crimes charged against Ms. Akers, the State needed to prove that Ms.
Akers’ delivery resulted in a “live birth,” as defined by HG § 4-201(n), i.e., a baby that
“breathes or shows any other evidence of life[.]” By contrast, Ms. Akers’ defense was that
her delivery resulted in a stillbirth or “fetal death,” i.e., a death in which, after “expulsion
or extraction” from the mother, “the fetus does not breathe or show any other evidence of
life[.]” HG § 4-201(h).
7
The tests and analysis conducted by Dr. Mourtzinos included examining the baby’s
body via x-ray, conducting a visual and tactile examination of the lungs, checking for
maceration, and searching for abnormalities, infection, and bacterial invasion of the baby’s
body and the placenta. In addition to these tests, Dr. Mourtzinos conducted a hydrostatic
float test (“HFT”), commonly known as the “floatation test” or “lung float test,” which is
used to determine if an infant’s lungs had been aerated prior to death. Dr. Mourtzinos
opined that, when in utero, the fetus’s lungs are filled with liquid, not air; as the child is
born and breathes, the lungs become aerated and inflate. The HFT involves removing the
lungs, ensuring that air has not been artificially introduced into them, and placing them in
water. If the lungs float, they have been aerated. If the lungs sink, they have not been
aerated. Dr. Mourtzinos testified that the results of the HFT indicated that the infant’s
lungs had been aerated, there was no evidence of air being introduced by means other than
breathing, and that those results were consistent with a variety of different tests which, in
her opinion, were also indicative of a live birth.

10
she opined that the baby was born alive, and that the cause of death was homicide resulting

from asphyxia and exposure.

The defense called Dr. Gregory Davis, a board-certified forensic pathologist, who

testified that based upon his review of the evidence, he could not determine one way or

another whether the baby died in utero and was therefore stillborn, or whether the baby had

been born alive. The defense also presented the testimony of Dr. Richard Margolis, a

board-certified specialist in obstetrics and gynecology and a practicing clinician for over

50 years. Over the course of his career, Dr. Margolis delivered an estimated 50 stillbirths.

Dr. Margolis explained that the autopsy revealed clotted blood over approximately 30% of

the placenta, indicating a partial abruption. He testified that the partial placenta abruption,

in conjunction with the acute infections and severe inflammatory processes in the umbilical

cord, placenta membranes, and placenta, would likely decrease oxygen flow to the fetus

and lead to a stillbirth.

Prior to trial, defense counsel filed a motion in limine challenging the reliability of
the HFT. The circuit court initially conducted a Frye-Reed hearing. The State and defense
each called witnesses who testified as to the reliability of the HFT test. During the
pendency of the case, this Court decided Rochkind v. Stevenson, 471 Md. 1 (2020), which
adopted Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), for purposes of
applying Md. Rule 5-702. At the second hearing, by agreement of the parties, the court
incorporated the testimony from the prior hearing. The court gave the parties the
opportunity to present additional arguments and testimony. Thereafter, the trial court ruled
that Dr. Mourtzinos could present testimony concerning the HFT test. On appeal, Ms.
Akers challenged that evidentiary ruling. See Akers, 2024 WL 338958, at *2–6. The
Appellate Court held that the circuit court did not abuse its discretion in admitting Dr.
Mourtzinos’ testimony regarding the HFT test under Rule 5-702. Id. at *6. Ms. Akers did
not seek review of this issue in her petition for writ of certiorari. Accordingly, that issue
is not before us.
11
In addition to the expert testimony concerning whether the pregnancy ended in a

live birth or a stillbirth, the State presented several other witnesses. Two first responders

testified about the events they witnessed while responding to Mr. Akers’ 911 call, including

Ms. Akers’ condition upon their arrival and statements she made prior to transport to the

hospital. The first responders also recounted their return to the Akers’ home after Ms.

Akers admitted to hospital personnel that she had delivered a baby at home. They also

testified about discovering the infant’s body in the closet and the condition of the body.

An emergency room physician and a nurse involved in Ms. Akers’ care when she

arrived at the hospital each testified concerning the examination of Ms. Akers, as well as

statements Ms. Akers made during the examination. Additionally, an on-call obstetrician

testified about her examination of Ms. Akers on November 1, the medical procedure she

performed, and her observations concerning the condition of the placenta and umbilical

cord. A perinatal social worker employed by the hospital testified concerning her

interactions with Ms. Akers in her hospital room on November 2. A detective with the

Howard County Police Department testified concerning the statement Ms. Akers made

following a medical procedure on November 1. The State also called Mr. Akers. Although

Mr. Akers asserted spousal privilege, the trial court ruled that his testimony fell within a

statutory exception, and he was therefore required to testify.8 The trial court also ruled that

the State could consider Mr. Akers a hostile witness and permitted leading questions. Mr.

8
CJ § 9-106(a)(1)(i) provides that “[t]he spouse of a person on trial for a crime may
not be compelled to testify as an adverse witness unless the charge involves . . . [t]he abuse
of a child under 18[.]”
12
Akers recounted the events of November 1 and confirmed that he learned that Ms. Akers

had delivered a boy from the hospital personnel that evening.

The State’s exhibits included Ms. Akers’ medical records from the May 14, 2018

obstetrical appointment, the EMT reports, the medical records from Howard County

General Hospital related to Ms. Akers’ hospital admission, the 56-minute audio-recording

of Ms. Akers’ hospital interview with the detective, as well as a transcript of the interview,

photographs taken when the first responders discovered the baby in the closet, the autopsy

report and photographs, and the internet searches that were extracted from Ms. Akers’

cellphone between March and May 2018.

2. The State’s Evidence and Arguments Pertaining to the Termination
Searches

The prosecutors called Joshua Lapier, a detective with the Howard County Police

Department in the Digital Forensics Unit, to testify concerning the extraction analysis he

performed on Ms. Akers’ cellphone and the search history pertaining to the pregnancy

termination searches that was compiled in connection with his analysis. The court admitted

two extraction reports into evidence as exhibits. One extraction report contained a

summary of terms that were searched by the user of the cellphone. The other extraction

report contained a summary of web and browser history. The exhibits consisted of a total

of 15 pages. The extraction reports revealed the following searches during the time period

in which Ms. Akers could have lawfully terminated her pregnancy:

• March 4, 2018: “rue tea for abortion”
• March 4, 2018: “does rue extract cause you to miscarry”
• March 4, 2018: “over the counter pills that cause miscarriage”
13
• March 8, 2018: “miscarriage at 7 weeks”
• March 8, 2018: “miscarriage at 7 weeks do i need a d&c”
• May 4, 2018: “how to treat ectopic pregnancy naturally”
• May 4, 2018: “how to end a ectopic pregnancy”
Additional searches included “planned parenthood,” “scheduling an abortion,” and a search

for “Misoprostol in Midtrimester Termination of Pregnancy: Oral and Vaginal in of” on

eBay. Ms. Akers also visited a website titled “woman resort to over-the-counter remedies

to end pregnancy” on March 14, 2018. After admitting the extraction reports into evidence

over defense counsel’s objection, the trial court allowed Detective Lapier to summarize the

searches for the jury.

The prosecutor also introduced into evidence Ms. Akers’ discussion with her

obstetrician, Dr. Danielle Waldrop, about the termination of the pregnancy.9 According to

Ms. Akers’ medical records and Dr. Waldrop’s testimony, Ms. Akers visited her

obstetrician on May 14, 2018. Dr. Waldrop ordered an ultrasound, and the medical record

states: “Ultrasound Complete (> 14 wks) (In-House).” Dr. Waldrop’s notes reflect that

Ms. Akers was very emotional during the appointment, needed to be consoled, and was

unable to complete the exam. Dr. Waldrop discussed the possibility of terminating the

pregnancy with Ms. Akers, and the medical records indicated that the office gave her

information for local clinics that perform second trimester abortions.

9
Dr. Waldrop’s testimony and medical records reflected that she discussed with Ms.
Akers the possibility of terminating her pregnancy and that her office provided Ms. Akers
with information about local abortion clinics. This evidence was admitted without objection.
Ms. Akers’ petition for writ of certiorari asked us to consider only the admissibility of the
internet searches related to termination of a pregnancy. Accordingly, our discussion
concerning the admissibility of abortion evidence is limited to the internet searches.
14
The prosecutor’s narrative throughout the trial was that Ms. Akers’ contemplation

of abortion showed that she intended to kill the child at birth and was untruthful about her

“safe haven” plan. The prosecutor began her opening statement by asserting that Ms.

Akers’ contemplation about abortion revealed her choice not to let the newborn live:

She chose to not let that baby live.

As early as March of 2018 when she would have been approximately five
weeks along, she at least suspected she was pregnant. She made Internet
searches for brew extracts that would cause termination. She Googled
[ectopic] pregnancies. And she waited until May 14th of 2018 to go see her
OBGYN. At that time[,] she was fifteen weeks along. She went to see her
doctor at that time [after] having waited those ten weeks, to discuss
termination.
. . . .

She has six months from that time of her appointment until the time of his
birth to think about what she was going to do when he came into this world.
To think about alternative ways that he could live. That she did not want
him, but that others would. Six months of choices.
In closing argument, the prosecutor told the jury that Ms. Akers wanted to terminate the

pregnancy and that contemplating abortion was proof of her later intent to kill a child:

Perfect, beautiful Baby Boy Akers was born and died on November 1st, 2018.
He lived only a few moments, taking a few breaths, before his mother, the
defendant, snuffed out his life. Why? Because she didn’t want another child.
She wanted to terminate this pregnancy and when she chose not to, she took
matters into her own hands upon his birth that afternoon[,] at around 3:30 on
November 1st of 2018.

The prosecutor emphasized that “[s]he intended his death, ladies and gentlemen. She had

a plan to terminate the baby.”

15
3. The State’s Evidence Pertaining to Lack of Prenatal Care

Unlike the termination searches, which were prominently featured in the

presentation of the State’s case, there was very little evidence presented on Ms. Akers’ lack

of prenatal care. The evidence consisted of: (1) two references in the medical records; (2)

one reference in the interview between the detective and Ms. Akers that was admitted into

evidence, which the detective also referenced in her testimony; and (3) one reference in the

testimony of the hospital nurse when she described Ms. Akers’ medical history that Ms.

Akers provided upon her arrival at the hospital. The State did not discuss this evidence or

mention Ms. Akers’ lack of prenatal care in either opening or closing arguments.

The jury found Ms. Akers guilty of second-degree murder and child abuse resulting

in death. The jury acquitted her of first-degree murder. The trial court sentenced Ms.

Akers to 30 years of imprisonment for murder and a concurrent 20 years of imprisonment

for child abuse resulting in death.

E. The Appellate Court of Maryland

Ms. Akers timely appealed her conviction to the Appellate Court of Maryland. The

Appellate Court affirmed her conviction. Akers v. State, No. 0925, 2024 WL 338958 (Md.

App. Ct. Jan. 30, 2024).10 Pertaining to the issues presented here—the admissibility of the

10
In her appeal to the Appellate Court, Ms. Akers raised several issues that are not
part of this Court’s review. In addition to the issues described in notes 2 and 7 supra, Ms.
Akers challenged the legal sufficiency of the evidence, asserting that the evidence did not
establish that the baby was born alive. Akers, 2024 WL 338958, at *17. The Appellate
Court concluded that “the record evidence was sufficient for a rational jury to find that
[Ms. Akers’] child was born alive, and that her actions caused his death.” Id. at *18.
Accordingly, the Appellate Court concluded that there was sufficient evidence for the jury
16
evidence of Ms. Akers’ lack of prenatal care and internet searches related to abortion—the

Appellate Court held that both types of evidence were relevant and that the trial court did

not abuse its discretion in admitting the evidence. Id. at *8–13.

Regarding the lack of prenatal care, the Appellate Court determined that the State’s

relevance argument was “bolstered by evidence” that Ms. Akers “had previously sought and

received prenatal care for prior pregnancies and had attended an appointment with an

OBGYN to confirm” this pregnancy. Id. at *9. Turning to the potentially prejudicial effect

of the evidence, the Appellate Court acknowledged that “pregnant women do not always

receive prenatal care for a variety of reasons, including the accessibility of such care,” and

agreed with Ms. Akers that “prejudice could arise due to gender-based stereotypes and biases

regarding the ways in which pregnant women are expected to behave.” Id. The Appellate

Court also recognized “that electing not to seek prenatal care is both a legally protected

activity in Maryland,” and “that as a general principle, a lack of prenatal care is typically

either irrelevant or minimally probative of a mother’s intent to subsequently harm her child

after birth.” Id. That said, the Appellate Court held that the trial court did not abuse its

discretion in admitting this evidence because “the facts of this case are far from typical.” Id.

With respect to the evidence of internet searches related to abortion, the Appellate

Court “note[d] at the outset” that its decision “should be read narrowly, and in strict

accordance with the specific facts of this case.” Id. at *10. The Appellate Court considered

the chain of inferences relied upon by the State and concluded that “in the context of other

to return guilty verdicts on both counts. Id. These issues also were not part of Ms. Akers’
petition for writ of certiorari and are not before us.
17
admitted evidence,” Ms. Akers’ actions made it “more probable that she intended to

prevent others from discovering her pregnancy or child at any point.” Id. The Appellate

Court concluded that such conduct “in turn permits an inference that she would be inclined

to harm or cause the death of the child to keep the pregnancy and birth secret.” Id. The

Appellate Court also determined that the evidence was relevant to Ms. Akers’ credibility.

Id. at *12.

Although the Appellate Court recognized “that abortion and other forms of

reproductive healthcare carry with them the potential risk of unfair prejudice,” the Appellate

Court was unable to determine that the circuit court abused its discretion in admitting the

evidence in the context of the other evidence presented in this case. Id. at *13.

II

Our review of the trial court’s decision to admit evidence involves a two-step

analysis. First, we determine whether the evidence was relevant, which is a conclusion of

law that we review de novo. Montague v. State, 471 Md. 657, 673 (2020) (citing Portillo

Funes v. State, 469 Md. 438, 478 (2020)).11 “While trial judges are vested with discretion

11
The Dissent points out that earlier cases have stated that we review a trial judge’s
determination of relevance for abuse of discretion. Dissent Slip Op. at 16 n.10. See, e.g.,
Young v. State, 370 Md. 686, 720 (2002) (“This Court reviews a trial court’s determination
of relevance under an abuse of discretion standard.”); Thomas v. State, 301 Md. 294, 317
(1984) (“Decisions on the relevance of evidence rest in the sound discretion of the trial
court and will not be reversed absent a showing that such discretion was clearly abused.”).
In Ruffin Hotel Corp. of Maryland, Inc. v. Gasper, 418 Md. 594, 620 (2011), we stated that
“[w]hile the ‘clearly erroneous’ standard of review is applicable to the trial judge’s factual
finding that an item of evidence does or does not have ‘probative value,’ the ‘de novo’
standard of review is applicable to the trial judge’s conclusion of law that the evidence at
issue is or is not ‘of consequence to the determination of the action.’” (Citations omitted).
Other cases over the past several years have consistently stated that relevancy
18
in weighing relevancy in light of unfairness or efficiency considerations, trial judges do

not have discretion to admit irrelevant evidence.” State v. Simms, 420 Md. 705, 724 (2011);

see also Parker v. State, 408 Md. 428, 436–37 (2009) (explaining that the de novo standard

of review is applicable to the trial judge’s conclusion of law that the evidence at issue is or

is not “of consequence to the determination of the action” (quoting Md. Rule 5-401));

Pearson v. State, 182 Md. 1, 13 (1943) (noting that “the rule [of discretion] will not be

extended to facts obviously irrelevant as well as prejudicial to the defendant”).

If we determine that the evidence in question is relevant, we proceed to the second

step—whether the evidence is inadmissible because its probative value is outweighed by

the danger of unfair prejudice, or other countervailing concerns as outlined by Maryland

Rule 5-403. In connection with this second inquiry, “we consider whether the trial court

abused its discretion by admitting relevant evidence which should have been excluded as

unfairly prejudicial.” Montague, 471 Md. at 673. The second inquiry—the trial judge’s

determinations are reviewed de novo. See, e.g., DeLeon v. State, 407 Md. 16, 20 (2008)
(“The determination of whether evidence is relevant is a matter of law, to be reviewed de
novo by an appellate court.”); Ford v. State, 462 Md. 3, 46 (2018) (“An appellate court
reviews without deference a trial court’s conclusion as to whether evidence is relevant.”);
Santiago v. State, 458 Md. 140, 160–61 (2018) (explaining that a reviewing court tests for
legal error when considering whether evidence is legally relevant); Williams v. State, 457
Md. 551, 563 (2018) (“When the circuit court determines whether a piece of evidence is
relevant, that is a legal conclusion, which is reviewed without deference.”); Gonzalez v.
State, 487 Md. 136, 166 (2024) (“An appellate court reviews de novo a trial court’s
determination as to whether evidence is relevant.” (quoting Portillo Funes v. State, 469
Md. 438, 478 (2020))). To the extent that statements in earlier cases are inconsistent with
statements in more recent cases concerning the de novo standard of review, that issue has
not been briefed or raised by any party. Moreover, even if it were raised and the Court
determined that we should apply an abuse of discretion standard (notwithstanding our
repeated assertion that the standard is de novo), we would reach the same outcome with
respect to the trial court’s decision to admit this evidence.
19
discretionary ruling of the admissibility of evidence under Rule 5-403—is subject to the

abuse of discretion standard. Id. at 673–74; Simms, 420 Md. at 725.

III

A central evidentiary principle in our legal system is that only relevant evidence is

admissible. See Md. Rule 5-402 (“Evidence that is not relevant is not admissible.”). Trial

courts do not have discretion to admit irrelevant evidence. Ruffin Hotel Corp. of Md. v.

Gasper, 418 Md. 594, 620 (2011). While “[i]t is true that relevance is generally a low bar,”

relevance “is a legal requirement nonetheless.” Simms, 420 Md. at 727. Evidence is

relevant if it has a “tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” Md. Rule 5-401. Two characteristics of relevant evidence are: (1) materiality

and (2) probative value. Williams v. State, 342 Md. 724, 737 (1996) (quoting State v.

Joynes, 314 Md. 113, 119–20 (1988)).

Evidence is material if it bears on a fact of consequence to an issue in the case. Id.

at 736–37; see also Lai v. Sagle, 373 Md. 306, 319 (2003). “Materiality looks to the

relation between the propositions for which the evidence is offered and the issues in the

case.” Joynes, 314 Md. at 119; see also 1 McCormick on Evid. § 185, at 1106 (8th ed.

2020) (“Materiality concerns the fit between the evidence and the case.”). “If the evidence

is offered to help prove a proposition that is not a matter in issue, it is immaterial.” 1

McCormick on Evid. § 185, at 1106 (8th ed. 2020). A matter in issue is one that is “within

the range of the litigated controversy[.]” Id.

20
On the other hand, probative value “is the tendency of evidence to establish the

proposition that it is offered to prove.” Joynes, 314 Md. at 119. Evidence is probative if

it is “related logically to a matter at issue in the case[.]” Snyder v. State, 361 Md. 580, 591

(2000). In turn, for evidence to be “related logically” to a matter at issue, the court “must

be satisfied . . . that its admission increases or decreases the probability of the existence of

a material fact.” Id. The probative value inquiry—and therefore also the relevancy inquiry

as a whole—often depends upon how attenuated the evidence is to the material fact it is

intended to prove or disprove. Where the proffered evidence is several inferential leaps

removed from the consequential fact, or where it involves a speculative chain of inferences

to reach a determination, the less likely the evidence will make that fact more or less

probable. This means that the evidence is not probative and, therefore, is irrelevant.

Evidence also lacks probative value when its relevancy depends on attributing

meaning to actions too “ambiguous and equivocal” to support the proposition for which it

is offered. Snyder, 361 Md. at 596. When a person’s conduct is equivocal and therefore

equally consistent with multiple interpretations, it invites improper speculation by the

factfinder as to the meaning of that conduct. See, e.g., Weitzel v. State, 384 Md. 451, 456–

58 (2004) (holding that pre-arrest silence in the presence of the police was “too ambiguous

to be probative” of guilt because there are valid reasons for the innocent to refuse to speak

to police); Simms, 420 Md. at 731 (holding that filing a notice of alibi but not calling an

alibi witness was irrelevant as “too ambiguous and equivocal” because the conduct could

“support inferences other than an intent to create false exculpatory evidence”); Hunter v.

State, 82 Md. App. 679, 691 (1990) (finding that a search for legal counsel was irrelevant

21
to consciousness of guilt because a person seeking legal counsel “may just as well believe

himself entirely innocent or only partly culpable, or he simply may not know whether his

acts or omissions are in violation of the law”). Cases from this Court and the Appellate

Court highlight the application of these principles in undertaking our de novo review of

relevancy determinations by the trial court.

In Fuentes v. State, this Court upheld the trial court’s determination to exclude, on

the basis of relevance, a victim’s employment records as a housekeeper to establish that

she had the mental capacity to consent to the sexual conduct at issue in the case. 454 Md.

296, 326 (2017). We explained that whether the victim “was able to perform various

housekeeping duties was several inferential leaps removed from whether she was capable

of” consenting and understanding the nature of the sexual conduct. Id.

In Snyder v. State, this Court held that the jury was improperly “asked to presume”

that the defendant’s failure to inquire into the status of an investigation of his wife’s murder

was probative of an absence of a loving relationship and then asked the jury to “speculate”

that this was “indicative” of a guilty conscience. 361 Md. at 596. In other words, the

evidence was not relevant because its probative value turned on a series of inferences that

“invite[d] the jury to speculate.” Id.

In Vitek v. State, this Court held that the evidence that a criminal defendant was poor

and unemployed was irrelevant in a robbery trial absent a specific link between the

defendant’s financial desperation and the crime. 295 Md. 35, 40–42 (1982). We explained

that without a specific link between the defendant’s poverty and motive, “the chain of

22
inferences is too speculative.” Id. at 45 (quoting United States v. Mullings, 364 F.2d 173,

175–76 (2d Cir. 1966)).

In Gupta v. State, the Appellate Court held that evidence that a witness carried a

camping knife “for protection” was irrelevant to show that she, and not the defendant, was the

perpetrator of a fatal stabbing. 227 Md. App. 718, 742–43 (2016). The Appellate Court noted

that “[t]he knife in question was not the murder weapon” and reasoned that “carrying a knife

and plunging it into the body of another are two very different propositions.” Id. at 743

(cleaned up). In other words, the court concluded, the fact that the witness “carried a knife

with her at some point [did] not make her more or less likely to have stabbed [the victim].” Id.

The trial court’s admissibility inquiry ends if the evidence is found to be irrelevant.

If the trial court determines that the evidence is relevant, the evidence may nonetheless be

excluded where the probative value of the relevant evidence “is substantially outweighed

by the danger of unfair prejudice.” Md. Rule 5-403. Against the backdrop of these

analytical principles guiding the admissibility of evidence, we turn to the specific

evidentiary rulings in question.

IV

Ms. Akers contends that evidence of her internet searches about terminating her

pregnancy between six and nearly eight months before delivery have no logical connection

to an intent to kill or harm a newborn at birth. Nor, according to Ms. Akers, does her

contemplation of a protected right to terminate a pregnancy during the period in question

make the later existence of a specific intent to kill the newborn or an adoption plan more

or less probable. Ms. Akers asserts that a woman’s consideration of an abortion is neither

23
contemplation of murder at birth nor impeachment of her desire to put a baby up for

adoption once it is born. Additionally, Ms. Akers argues that, even if the abortion searches

were relevant, the prejudicial effect of this highly inflammatory evidence far exceeded any

probative value.

The State argues that the termination searches were relevant to Ms. Akers’ motive

and intent to kill the baby once it was born. Specifically, the State asserts that the searches

evidenced her general desire not to have a child and helped establish her motive to kill the

baby even if it was born alive. According to the State, even if the jury did not ascribe an

intent to murder from the termination searches to support a first-degree murder conviction,

the searches helped establish that Ms. Akers had no plan if the baby was born alive, which

the State asserts would support a finding that she committed second-degree murder and

first-degree child abuse. Finally, the State contends that the termination searches were

relevant to undercut Ms. Akers’ credibility. The State points out that she conducted the

searches in early March and early May of 2018, and the dates of the searches make it

apparent that Ms. Akers knew then that she was pregnant and was considering ways to end

the pregnancy. The State notes that, during Ms. Akers’ hospital interviews with the social

worker and the detective, she stated that it was too late to terminate the pregnancy by the

time she learned she was pregnant. The State asserts that the timing of her termination

searches, together with the evidence that Dr. Waldrop had provided her with two referrals

for abortion clinics on May 14, disproves her assertion of timeliness.12

12
At oral argument, the State asserted that the Court should exercise its discretion
and conduct a harmless error analysis pursuant to its discretionary authority under
24
As part of our discussion of the admissibility of the abortion searches in this case, it is

instructive to discuss: (1) Maryland laws that protect women’s reproductive rights and reject

the concept of fetal personhood of a non-viable fetus; (2) some abortion-related statistics; and

(3) studies and research that discuss the abortion stigma prevalent in our country.

A. Maryland Laws Protecting Women’s Reproductive Rights

Maryland law recognizes the fundamental difference between a fetus and a baby

and rejects the concept of fetal personhood.13 See Md. Code Ann., Crim. Law (“CR”) § 2-

103(g) (2021 Repl. Vol.) (stating that, for the purposes of Maryland homicide law,

“[n]othing in this section shall be construed to confer personhood or any rights on the

fetus”); see also Kandel v. White, 339 Md. 432, 443 (1995) (refusing to recognize a cause

of action for the wrongful death of a nonviable fetus, and expressing agreement with the

New Hampshire Supreme Court’s reasoning that to hold otherwise would be “giving a

nonviable fetus a cause of action for negligence before it becomes a person, in the real and

usual sense of the word, by being born alive” (emphasis added) (quoting Wallace v.

Wallace, 421 A.2d 134, 136–37 (N.H. 1980))).

Maryland Rule 8-131(b). We decline to exercise our discretion in this case. The State did
not raise harmless error before the Appellate Court, nor did the State raise harmless error
in its answer to Ms. Akers’ petition for writ of certiorari or in its brief before this Court.
At oral argument, the State conceded that it had not briefed harmless error. Accordingly,
we consider that issue waived.
13
“Fetal personhood” is a legal theory that attempts to redefine a person or human
being as existing from the moment of fertilization of an egg and grants a fetus equal
protection under the law. See, e.g., When Fetuses Gain Personhood: Understanding the
Impact on IVF, Contraception, Medical Treatment, Criminal Law, Child Support, and
Beyond, Pregnancy Just., Aug. 17, 2022, at 3–4, available at https://perma.cc/PQ7A-5237.
25
Consistent with the recognition that non-viable fetuses are not persons, all women

in Maryland have a statutory and constitutional right to freely decide whether to terminate

a pregnancy.14 See Md. Code Ann., Health-Gen. (“HG”) § 20-209 (2023 Repl. Vol.).15

At the time of Ms. Akers’ trial, her constitutional reproductive rights were set
14

forth in Roe. Thereafter, in Dobbs, the United States Supreme Court eliminated the federal
constitutional protections for women’s reproductive freedom. 597 U.S. at 232. In 2023,
the General Assembly enacted the “Right to Reproductive Freedom Act,” which placed a
constitutional amendment before the Maryland voters that “confirms an individual’s
fundamental right to an individual’s own reproductive liberty” guaranteed by Maryland
law. 2023 Md. Laws, ch. 245. The amendment states that “every person, as a central
component of an individual’s rights to liberty and equality, has the fundamental right to
reproductive freedom, including but not limited to the ability to make and effectuate
decisions to prevent, continue, or end one’s own pregnancy.” The amendment was adopted
by the voters of Maryland on November 5, 2024.
15
The entirety of HG § 20-209 states:

(a) In this section, “viable” means that stage when, in the best clinical judgment
of the qualified provider based on the particular facts of the case before the
qualified provider, there is a reasonable likelihood of the fetus’s sustained
survival outside the womb.

(b) Except as otherwise provided in this subtitle, the State may not interfere with
the decision of a woman to terminate a pregnancy:
(1) Before the fetus is viable; or
(2) At any time during the woman’s pregnancy, if:
(i) The termination procedure is necessary to protect the life or health of
the woman; or
(ii) The fetus is affected by genetic defect or serious deformity or
abnormality.

(c) The Department may adopt regulations that:
(1) Are both necessary and the least intrusive method to protect the life or
health of the woman; and
(2) Are not inconsistent with established clinical practice.

(d) The qualified provider is not liable for civil damages or subject to a criminal
penalty for a decision to perform an abortion under this section made in good
26
The statutory right is broad and unequivocal, providing that prior to viability “the State

may not interfere with the decision of a woman to terminate a pregnancy[.]” HG § 20-

209(b). This Court has explained that Maryland law guarantees the right “to decide

whether to bear a child” and that Section 20-209 demonstrates “clear, strong, and important

Maryland public policy” to protect a person’s right to obtain an abortion. Lab Corp. of Am.

v. Hood, 395 Md. 608, 624–25 (2006) (quoting Reed v. Campagnolo, 332 Md. 226, 237

(1993)); see also Jocelyn P. v. Joshua P., 259 Md. App. 129, 173 n.10 (2023) (observing

that “under Maryland law, the ultimate decision whether to terminate or carry a pregnancy

to term is entrusted solely to the woman when a pregnancy has been established”).

The State’s criminal laws also recognize a woman’s right to be free from criminal

prosecution for exercising her reproductive rights. Specifically, although the State may

institute a criminal prosecution for murder or manslaughter of a viable fetus, the General

Assembly has made clear that the criminal statute: (1) does not apply to or infringe on a

woman’s right to terminate a pregnancy under state law; and (2) does not apply to an act

or the failure to act of a pregnant woman in regard to her own fetus. See CR § 2-103.

Furthermore, the criminal statute expressly states that “[n]othing in this section shall be

construed to confer personhood or any rights on the fetus.” Id. § 2-103(g).

In addition to the statutory protections associated with a woman’s right to engage in

her reproductive rights free from criminal prosecution, this Court has recognized the

importance of ensuring the State does not criminalize a woman’s behavior for actions that

faith and in the qualified provider’s best clinical judgment in accordance with
accepted standards of clinical practice.
27
she undertakes while pregnant that may ultimately cause harm to a child. In Kilmon v.

State, this Court rejected the State’s interpretation of Maryland’s reckless endangerment

statute as applying to the conduct of a pregnant woman, holding that her intentional

ingestion of cocaine could not form the basis for a conviction for the reckless endangerment

of the later-born child. 394 Md. 168, 170 (2006). We observed that the State’s

interpretation could subject a woman to criminal liability for “a whole host” of activity that

might reasonably be expected to endanger the life of a child, including “ordinary things

[such] as skiing or horseback riding.” Id. at 177–78. We also noted that “criminal liability

would depend almost entirely on how aggressive, inventive, and persuasive any particular

prosecutor might be.” Id. at 178.

B. Abortion—A Common Yet Highly Stigmatized Event

1. Some Statistics

Having an abortion is a common event in the reproductive lives of millions of

women in the United States. Nearly a quarter of women in this country will have an

abortion by age 45. Fact Sheet: Abortion in the United States, Guttmacher Inst. (June

2024), available at https://perma.cc/8J52-QDZB.16 Abortion is also common among

people who already have children—55% of women in the United States who have abortions

already have at least one child. Id.

16
See also Kate Cockrill et al., The Stigma of Having an Abortion: Development of
a Scale and Characteristics of Women Experiencing Abortion Stigma, 45 Persps. on Sexual
& Reprod. Health 79, 79 (2013) (stating that “[e]ach year, 1.2 million women in the United
States have abortions,” and “nearly one-third of women have an abortion during their
reproductive years”).
28
Women’s reasons for seeking an abortion vary. One 2013 study showed that the

most common reason for seeking an abortion was not being financially prepared to have a

child. M. Antonia Biggs et al., Understanding Why Women Seek Abortions in the US, 13

BMC Women’s Health, 13, 29 (2013). One-third of the study respondents cited

unsupportive or abusive partners, 19% felt that they were not emotionally or mentally

prepared to be a parent, 12% cited health-related issues, and 7% felt they were not

independent or mature enough for a baby. Id. Only 3% of the respondents said they

terminated the pregnancy because they did not want a baby. Id.

Many women who consider abortion do not ultimately have one. A 2018 study

looked at pregnant women aged 18 and over—including participants from Baltimore—

encountered at prenatal care facilities. Sarah C.M. Roberts et al., Consideration of and

Reasons for Not Obtaining Abortion Among Women Entering Prenatal Care in Southern

Louisiana and Baltimore, Maryland, 16 Sexuality Rsch. & Soc. Pol’y 476, 477, 479

(2018). Among the Maryland women, 34% had considered abortion, 21% considered an

abortion but took no further steps to obtain one, 13% called a clinic, and only 3% went to

the appointment. Id. at 482.

Not all abortions are performed in medical clinics. Self-managed abortions17 are

often performed within the privacy of a woman’s home. Common self-managed abortion

practices include self-sourcing medication, such as misoprostol, mifepristone, or a

17
A “[s]elf-managed abortion involves any action that is taken to end a pregnancy
outside of the formal healthcare system[.]” Nisha Verma & Daniel Grossman, Self-
Managed Abortion in the United States, 12 Current Obstetrics & Gynecology Rep. 70, 71
(2023).
29
combination of the two medications, or using herbs, plants, vitamins, or supplements.

Nisha Verma & Daniel Grossman, Self-Managed Abortion in the United States, 12 Current

Obstetrics & Gynecology Rep. 70, 71 (2023). Self-managed abortions are not

uncommon—one study notes that 10.7% of U.S. women will attempt to self-manage an

abortion during their lifetimes. Lauren Ralph et al., Self-Managed Abortion Attempts

Before vs After Changes in Federal Abortion Protections in the US, 7 JAMA Network

Open, 2024 7(7) e2424310, available at https://perma.cc/8Y55-5WBH.

Given the large percentage of women who either have an abortion or consider it at

some point during their reproductive years, it is also unsurprisingly common for women to

search on the internet for information pertaining to abortion, including searches about ways

to self-manage an abortion outside of the medical system.18 Of the women who search

online for information about self-managed abortion, one study reflects that 28% follow

through with the process. Ushma Upadhyay et al., Barriers to Abortion Care and Incidence

of Attempted Self-Managed Abortion Among Individuals Searching Google for Abortion

Care: A National Prospective Study, 106 Contraception 49, 53 (2022). Individuals

consider self-managed abortions for a variety of reasons, including because of barriers to

clinic-based abortion care, such as the distance to a clinic, financial challenges, or a lack

of childcare availability. Id. at 52, 55. Additionally, some women may pursue self-

managed options because of stigma related to the circumstances of the pregnancy or of

18
For example, during a single month in 2017, there were “more than 200,000
Google searches for information regarding self-managed abortion in the United States.”
Opposition to the Criminalization of Self-Managed Abortion, Am. Coll. Obstetricians &
Gynecologists (July 6, 2022), available at https://perma.cc/UFF5-2XGW.
30
having an abortion, a desire to avoid detection by an abusive partner, or to have a more

private experience. See Abigail R. A. Aiken et al., Demand for Self-Managed Medication

Abortion Through an Online Telemedicine Service in the United States, 110 Am. J. Pub.

Health 90, 94–95 (2020).

2. Abortion Stigma

Notwithstanding that abortion is a common event in the lives of many women each

year, it remains one of the most emotionally charged and divisive issues in this country.

One study reflects that more than one-half of Americans aged 18 and older believe that

having an abortion is morally wrong. Kate Cockrill et al., The Stigma of Having an

Abortion: Development of a Scale and Characteristics of Women Experiencing Abortion

Stigma, 45 Persps. on Sexual & Reprod. Health, 79 (2013). A 2024 study conducted by

the Pew Research Center found that 36% of survey respondents say abortion should be

illegal in all or most cases. Public Opinion on Abortion, Pew Rsch. Ctr. (May 13, 2024),

available at https://perma.cc/774Z-8WDZ. Another study found that 47% of Americans

think a woman who has an unlawful abortion should face penalties and nearly 30% think

the penalties should include incarceration. Hanna Hartig, Wide Partisan Gaps in Abortion

Attitudes, But Opinions In Both Parties Are Complicated, Pew Rsch. Ctr. (May 6, 2022),

available at https://perma.cc/RC2V-YVMC. According to that study, 38% of people think

life begins at conception and fetuses have rights, and 35% think legal abortion leads to

carelessness with sex and contraception. Id.

Regardless of abortion’s legal status, studies report that women who have abortions

are frequently stigmatized, or fear such stigma. Indeed, “abortion stigma” is the topic of

31
considerable study, scholarship, and discussion.19 Abortion stigma ascribes “negative

attribute[s] . . . to women who seek to terminate a pregnancy[.]” Anuradha Kumar et al.,

Conceptualizing Abortion Stigma, 11 Culture, Health & Sexuality 625, 628 (2009). These

biases are even more acute with respect to self-managed abortion. Megan K. Donovan,

Self-Managed Medication Abortion: Expanding the Available Options for U.S. Abortion

Care, Guttmacher Inst. (Oct. 17, 2018), available at https://perma.cc/52L9-EV9S

(explaining that “[a]bortion stigma is heightened when it comes to self-managed abortion,

due at least in part to fear and misunderstanding about the process”).

Because abortion stigma is “concealable”—that is, it arises only when a woman

discloses her abortion—it can result in a woman engaging in secretive behavior, such as

concealing the abortion. The connection between abortion stigma and secrecy is well-

documented.20 With this background in mind, we turn to the issue of whether Ms. Akers’

termination searches were admissible.

19
See infra note 20.
20
See, e.g., Report of the APA Task Force on Mental Health and Abortion, Am.
Psych. Ass’n, 1, 85 (2008), http://www.apa.org/pi/wpo/mental-health-abortion-report.pdf
(reporting on a study that found that “over 45%” of women who had gotten an abortion “felt
a need to keep it secret from family and friends”); Franz Hanschmidt et al., Abortion Stigma:
A Systematic Review, 48 Persps. on Sexual & Reprod. Health 169, 173 (2016) (“Data from
four qualitative studies that investigated the effects of abortion stigma also consistently
highlighted restrictive disclosure behaviors and a need for secrecy in women with an abortion
history. Women cited anticipated negative judgment or treatment from friends, family,
community and society as the main reason for keeping their abortion a secret.”); M. Antonia
Biggs et al., Perceived Abortion Stigma and Psychological Well-Being Over Five Years after
Receiving or Being Denied an Abortion, 15 PLoS ONE 1, 3 (2020) (stating that “there is
ample evidence indicating that women keep their abortions secret” which is associated “with
perceived abortion stigma”); Kate Cockrill et al., supra, at 83 (“[P]revious research has
shown that abortion stigma leads to secrecy about abortion . . . .”).
32
C. Ms. Akers’ Abortion Searches Fail to Satisfy the Basic Relevancy
Threshold

Ms. Akers had a constitutionally and statutorily protected right to search for

information on how to terminate her pregnancy, including searching for options on how to

terminate the pregnancy through self-managed care. The record clearly reflects that the

prosecutor intended to, and did, in fact, link Ms. Akers’ exercise of her right to contemplate

the termination of her pregnancy with an intent to kill a newborn upon the delivery many

months later.

In arguing that the evidence was admissible, the prosecutor contended that the

abortion searches were “highly relevant and probative of the elements” of the charges of

murder and first-degree child abuse resulting in death and that “[t]he fact that she was

seeking to end her pregnancy is most highly relevant to proving her intent to kill the baby

once it was born, and her intentional failure to obtain care for her child after the child was

born.” The prosecutor also asserted that Ms. Akers’ “seeking of an abortion and searches

about abortion go to prove directly to her credibility, with respect to the information that

she provided, and her intent at the time she committed these acts.”

Once the trial court ruled that evidence of the termination searches was admissible,

the evidence prominently featured in the prosecutor’s opening statement, case-in-chief, and

closing arguments to establish Ms. Akers’ intent to kill a newborn at delivery. The

prosecutor told the jury in her opening statement that “[a]s early as March of 2018,” “she

at least suspected she was pregnant. She made internet searches for brew extracts that

would cause termination. She googled [ectopic] pregnancies.” The prosecutor then

33
highlighted that Ms. Akers “waited until May 14” “to go see her” obstetrician—suggesting

that the timing of her obstetrical visit had some bearing on her motive or intent to kill or

harm a living baby.

After the trial court admitted the internet searches over the objections of defense

counsel, Detective Lapier read into the record the search terms that were identified on the

exhibits. In her closing argument, the prosecutor once again linked Ms. Akers’

contemplation of terminating the pregnancy to an intent to kill a baby upon delivery. The

prosecutor told the jury: “What we do when we look back at the things that happened

[before the delivery] is to show what her intent and her plan and perhaps her motive are.”

The prosecutor argued that the “[baby] lived only a few moments, taking a few breaths,

before his mother, the defendant, snuffed out his life. Why? Because she didn’t want

another child. She wanted to terminate this pregnancy and when she chose not to, she took

matters into her own hands upon his birth[.]” The prosecutor concluded, stating that Ms.

Akers “intended his death, ladies and gentlemen. She had a plan to terminate the baby.”21

We hold that Ms. Akers’ termination searches months before she gave birth fail to meet

the basic threshold for admissibility. The termination searches were not probative of an intent

to kill or harm a baby at delivery many months later. Ms. Akers’ contemplation of a protected

right to terminate a pregnancy many months prior does not make the later existence of a

21
The State’s choice of words improperly conflated two legally distinct concepts,
evoked notions of fetal personhood, and muddied the water between Ms. Akers’ legally
protected right to terminate a pregnancy and homicidal intent. To obviate confusion and
unfair prejudice, care should be taken to avoid using terminology associated with
termination of a pregnancy to describe a person’s “plan” to kill a baby.
34
specific intent to kill or harm a newborn more or less probable. Simply put, the predicate

fact—lawfully contemplating the termination of a pregnancy—does not support the inferences

advanced by the State—an intent, plan, or motive to kill or harm a person. The State’s

argument begs the question of how Ms. Akers’ internet searches made it more likely that she

had a homicidal intent toward a living newborn, unless one assumes that a person who

researches abortion options is more likely to commit murder or harm a person.

According to the State, even if the jury did not ascribe an intent to kill or harm a

baby from the termination searches to support a first-degree murder conviction, the

searches helped establish that Ms. Akers had no plan if the baby was born alive, which the

State asserts would support a finding that she committed second-degree murder and first-

degree child abuse.22 On this point, the State’s relevancy theory is as follows: the fact that

22
On the count of second-degree murder, Ms. Akers’ jury was instructed as follows:

Second degree murder is the killing of another person while acting with an
extreme disregard for human life. In order to convict the defendant of second
degree murder, the State must prove:

(1) that Baby Akers was born alive;
(2) that the defendant caused the death of Baby Akers;
(3) that the defendant’s conduct created a very high degree of risk to
the life of Baby Akers; and
(4) that the defendant, conscious of such risk, acted with extreme
disregard of the life endangering consequences.

On the count of first-degree child abuse, the jury was instructed as follows:

The Defendant is charged with the crime of child abuse in the first degree.
In order to convict the defendant of first degree child abuse, the State must
prove:

(1) That the baby was born alive;
35
Ms. Akers did not want the baby, along with evidence of how she furtively managed the

pregnancy by keeping it a secret until its inevitable exposure, and her admission that her

approach was just to hope that the pregnancy would “go away,” tended to show that she

denied the pregnancy until she was no longer able to do so. The State argues that once the

baby was born alive, Ms. Akers decided to kill him. According to the State, the fact that

Ms. Akers searched for “rue tea for abortion” and how to obtain misoprostol to end

pregnancy shows that she was looking for ways to terminate the pregnancy undetected.

We disagree with the State’s relevancy argument for several reasons.

First, even assuming that the termination searches were material to a general

motive—in other words, the termination searches undertaken early in the pregnancy helped

to prove in a general sense that Ms. Akers did not want a third child, and therefore she

would be more likely to kill or harm a live baby or even simply fail to have a plan for the

baby upon delivery—the evidence is not probative and therefore fails the second part of

the relevancy inquiry. Ms. Akers’ internet searches conducted many months before

(2) That the defendant caused physical injury to Baby Akers as a result
of cruel or inhumane treatment or a malicious act;
(3) That at the time of the conduct, Baby Akers was under 18 years of
age;
(4) That, at the time of the conduct, the defendant was a parent of
Baby Akers;
(5) That, as a result of the defendant’s conduct, Baby Akers’ health or
welfare was harmed or threatened; and
(6) That defendant’s conduct resulted in Baby Akers’ death.

The failure to obtain medical assistance for a child may constitute cruel or
inhumane treatment. Under Maryland law, parents are required to obtain
necessary medical care for their minor children.
36
delivery do not make it any more probable that she failed to have a plan for a living child

after the child was born. Absent the false premise that it is more probable for a woman

who contemplates abortion in the early stages of her pregnancy to harm a live child or to

not have a plan for the child upon delivery, the State fails to establish a logical connection

between Ms. Akers’ early consideration of her reproductive right to terminate a pregnancy

and the absence of “a plan if the baby was born alive.”

Second, the chain of inferences that the State relies upon is too speculative,

ambiguous, and equivocal to support an inference that Ms. Akers had the specific intent to

kill or harm a live baby, or even that she generally did “not have a plan” if the baby was

born alive, simply because she researched abortion options many months prior to delivery.

The admission of evidence regarding Ms. Akers’ termination searches invited the jury to

speculate about, among other things, why she sought this information and why she did not

obtain an abortion. The jury was then asked to infer that her reasoning was probative of

an intent to kill or harm a human being, or to not have a plan for a baby at delivery many

months later, even though many women consider obtaining an abortion for legal and

legitimate reasons, none of which make them more likely to formulate an intent to kill or

harm a live baby or fail to “have a plan” for a live baby upon delivery many months later.23

23
The Dissent places great emphasis on the relevance of Ms. Akers’ general
motive—“her desire not to have another child[.]” Dissent Slip Op. at 14. According to the
Dissent, the abortion searches provided the jury with insight into her behavior because
“[a]ll roads lead back to her desire not to have another child and, consequently, her
consideration of and desire to terminate the pregnancy.” Id. We disagree. Even if the
abortion searches were material to a general motive—that Ms. Akers was less likely to
want a child—the evidence clearly fails the probative value prong. That Ms. Akers
performed abortion searches many months before delivery does not increase the likelihood
37
The jury was also asked to draw unfavorable inferences from the type of termination

searches—specifically, those related to self-managed abortion—because those methods are

more likely to lead to an undetected termination of pregnancy. Neither the type of abortion

contemplated by Ms. Akers, nor the fact that a self-managed abortion may be less

detectable than a clinical one, make it any more probable that she intended to kill or harm

a live baby. Self-managed abortions, including the use of medication such as misoprostol

or herbal remedies such as rue tea, are common—but misunderstood—practices. Verma

& Grossman, Self-Managed Abortion in the United States, supra, at 71. Moreover, as

discussed above, many women search for ways to terminate pregnancies through self-

managed care—thereby enabling them to terminate their pregnancies undetected in the

privacy of their own homes and for a variety of reasons that are completely unrelated to

criminal behavior. Additionally, the studies are replete with evidence that most women

consider or experience abortion in secret to avoid societal or familial stigma, and not for

any criminal or nefarious reason. See note 20, supra. Simply put, unless we conclude that

a woman who researches abortion options is more likely to kill or harm a living child or to

“not have a plan” for a baby at delivery, adding adverse speculative inferences—which

themselves are laden with stigma—does not move the relevancy needle.24

that she would be motivated to kill or harm a child or even simply to not have a plan for
the baby at delivery.
24
The State argues that this case is unique and seems to acknowledge that the self-
help termination searches may lack relevancy in at least some circumstances by stating that
this case “would present a different appeal indeed” if it involved “the birth of a stillborn
baby.” The State loses sight of the fact that the defense’s theory of the case and
presentation of the evidence was that Ms. Akers did, in fact, deliver a stillborn. The State
38
We observe that other state appellate courts have similarly recognized that a

woman’s contemplation of termination of a pregnancy is not relevant to a specific intent to

kill a newborn of the same or different pregnancy. In Stephenson v. State, the State of

Florida charged a mother with manslaughter from neglect in the death of her 13-month-old

daughter. 31 So. 3d 847, 847 (Fla. Dist. Ct. App. 2010). The prosecutor questioned the

mother about her considering an abortion and seeking prenatal care late in her pregnancy.

Id. at 848–49. In closing argument, the prosecutor argued that “[s]he admitted at first she

was ambivalent about whether or not she wanted this baby at all.” Id. at 849. Even though

defense counsel did not object to the prosecutor’s statements, the Florida appellate court

reversed the conviction, explaining that a fundamental error occurred:

[N]ot only is there no permissible relevance to the mother’s consideration of
abortion to the legal issues at hand, but its only arguable relevance makes its
admission all the more inappropriate: it is apparently the thought that a
person who considers abortion is more likely to have killed the child not
aborted. This makes the familiar issue of the admission of prior convictions,
which is precluded because the jury may (probably correctly) conclude that
one who has been convicted before is guilty now, pale into insignificance.
Simply put, the evidence that [the mother], considered aborting her
pregnancy did not tend to “prove or disprove a material fact,” it tended to
prove only a very harmful immaterial one.

asks us to assume the very fact it needed to prove—that Ms. Akers’ delivery resulted in a
live birth.

Nor are we convinced that this case is unique. Approximately 1 in every 175 births
are stillbirths. Data and Statistics on Stillbirth, Ctrs. for Disease Control & Prevention
(May 15, 2024), https://perma.cc/A4LD-PAL4. In 2018—the year of Ms. Akers’
pregnancy—22,459 pregnancies in the United States ended in stillbirths, including 497 in
Maryland. About Fetal Deaths, 2005-2022, Ctrs. for Disease Control & Prevention,
https://perma.cc/P8LQ-MFBQ (last visited Nov. 4, 2024) (choose “Maryland” from
maternal residence dropdown and select “2018” from year dropdown; then select “Send”).
We envision other instances in which the State would attempt to use evidence pertaining
to abortion searches where the pregnancy outcome does not end in a live birth.
39
Id. at 851 (citation omitted); see also Wilkins v. State, 607 So. 2d 500, 501 (Fla. Dist. Ct.

App. 1992) (stating that evidence that the defendant and his wife considered having an

abortion of a baby-victim who was born and died later as “excludable . . . as . . . an

impermissible assault on the defendant’s character and was otherwise irrelevant and

inflammatory”); Minor Child v. State, 701 S.W.3d 751, 763 (Ark. Ct. App. 2024) (holding

that “[e]vidence of planning to terminate a pregnancy is not evidence of planning to abuse

a corpse. Whether a person medically induces an abortion is irrelevant to the charges

outside that action.”); Bynum v. State, 546 S.W.3d 533, 542–44 (Ark. Ct. App. 2018)

(reversing a conviction for “concealing birth” because the evidence that the defendant

sought a prior abortion and took labor-inducing drugs to end the pregnancy early was

irrelevant to motive, and its admission was highly prejudicial).25

25
Even assuming that the abortion searches were somehow relevant, we disagree with
the Dissent’s prejudice analysis. Dissent Slip Op. at 19–22. In undertaking its prejudice
analysis, the Dissent lumps all of the “abortion evidence” together and concludes generally
that this category of evidence did not rise to the level of reversible error. Id. We disagree
with the Dissent’s view that Ms. Akers’ termination searches overlapped with or were on par
with other evidence that: (1) she and her husband discussed abortion; and (2) a doctor
provided her with information pertaining to second-trimester abortions. As discussed supra,
Ms. Akers searched for information concerning self-managed abortions, which are
undertaken by thousands of women per year, but are nonetheless misunderstood and highly
stigmatized. Here, the prosecutor leaned into the stigma by emphasizing not only the fact of
the abortion searches, but by highlighting their type—suggesting that searching for self-
managed abortion options was more sinister or morally unacceptable than searching for
abortion options performed in a medical or clinical setting. To the extent we could have
concluded that the evidence had some relevance, the evidence was highly prejudicial.

We further note that courts in other states have held that admitting abortion evidence
is unduly prejudicial and therefore inadmissible. See, e.g., Billett v. State, 877 S.W.2d 913,
914–15 (Ark. 1994) (recognizing the controversial nature of abortion and approving of
decision not to admit evidence of witness’s prior abortions and defendant’s condemnation
40
Finally, the termination searches were not relevant to the collateral issue of Ms.

Akers’ credibility. She told the detective and social workers at the hospital that she

intended to give the baby to a safe haven. That Ms. Akers conducted termination searches

months before delivery did not make her safe haven plan less probable. In other words,

the fact that Ms. Akers searched for abortion options and elected not to have one does not

make it less probable that she intended to deliver her child and give it to a safe haven. Nor

of her to show bias, where bias had otherwise been shown and “any probative value was
clearly outweighed by the danger of unfair prejudice”); Hudson v. State, 745 So. 2d 1014,
1016 (Fla. Dist. Ct. App. 1999) (concluding “that the inflammatory evidence of two prior
abortions certainly contributed to [the defendant]’s conviction” and thus should not have
been admitted); Wilkins v. State, 607 So. 2d 500, 501 (Fla. Dist. Ct. App. 1992) (calling
evidence that the defendant and his wife considered having an abortion of the baby-victim
“excludable . . . as . . . an impermissible assault on the defendant’s character” and
“otherwise irrelevant and inflammatory”); Brock v. Wedincamp, 558 S.E.2d 836, 842–43
(Ga. Ct. App. 2002) (observing “even if evidence of the decedent’s abortions and adoptions
and sex life were somehow relevant, courts must consider whether ‘its probative value is
substantially outweighed by the risk that its admission will create substantial danger of
undue prejudice or of confusing the issues or of misleading the jury’”; the evidence of
abortion did not rebut the character of being a good mother) (cleaned up); People v. Ehlert,
654 N.E.2d 705, 710 (Ill. App. Ct. 1995), aff’d, 811 N.E.2d 620 (Ill. 2004) (finding that
the prejudicial effect of evidence about prior abortions and failure to seek prenatal care far
outweighed its probative value and that “[a]bortion with all its involvement is a particularly
fertile field for preconceived notions and prejudices”) (cleaned up); People v. Morris, 285
N.W.2d 446, 447–48 (Mich. Ct. App. 1979) (finding that it was reversible error for a trial
court to admit evidence of defendant’s prior abortions because “[t]he existing strong and
opposing attitudes concerning the issue of abortion clearly make any reference thereto
potentially very prejudicial”); Collman v. State, 7 P.3d 426, 436 (Nev. 2000) (agreeing that
information about abortion “was a collateral matter and the minimal value of it was
‘overwhelmingly outweighed’ by the danger of unfair prejudice, confusing the issues, and
misleading the jury”); Schneider v. Tapfer, 180 P. 107, 108 (Or. 1919) (testimony that
defendant had approved of abortion held irrelevant to issues involved and “was simply
evidence which tended to debase and degrade the defendant . . . . [C]ertainly none could
have been offered which was more likely to inflame and prejudice the minds of the jury
against the defendant”); Andrews v. Reynolds Mem. Hosp., 499 S.E.2d 846, 855 (W.Va.
1997) (evidence of the mother’s prior elective abortion was correctly excluded at trial
because of the highly prejudicial impact).
41
did the evidence pertaining to abortion searches that were conducted prior to the May 14

obstetrical visit provide a basis upon which to discredit Ms. Akers’ statement to the

detective that it was too late to have an abortion once she learned she was pregnant. To

the extent that the prosecutor attempted to discredit Ms. Akers’ statement that it was too

late to obtain an abortion, the prosecutor relied upon Dr. Waldrop’s testimony and medical

records from the May 14 office visit that were admitted into evidence without objection,

which reflected that Dr. Waldrop advised Ms. Akers on that day that terminating the

pregnancy was still an option.26

26
The Dissent sprinkles various relevance hypotheticals throughout its opinion that
are completely inapt. Dissent Slip Op. at 2–3, 14 n.8, 15 n.9.

With respect to the Dissent’s CEO murder hypothetical, the Dissent attempts to
equate our holding on the relevance of Ms. Akers’ abortion searches with a prosecutor
attempting to admit evidence that a criminal defendant on trial for murdering a CEO of a
business attended a rally protesting the business’s practices months before the murder. Id.
at 2–3. The Dissent believes that this is an apt analogy because the predicate conduct—
conducting abortion searches and attending a rally—is constitutionally protected. The
Dissent is wrong. Although we note in this opinion that Ms. Akers engaged in
constitutionally protected activity, that protection is not what makes this evidence
irrelevant.

The Dissent’s next hypothetical asks the reader to imagine that Mr. Akers engaged
in the internet searches instead of Ms. Akers. Id. at 14 n.8. Once again, the Dissent misses
the mark. The searches would not become relevant simply because Mr. Akers undertook
them instead of Ms. Akers. Other courts have reached a similar conclusion. See Wilkins,
607 So. 2d at 501 (stating that evidence that the defendant and his wife considered having
an abortion of a baby-victim who was born and died later as “excludable . . . as . . . an
impermissible assault on the defendant’s character and was otherwise irrelevant and
inflammatory”). Of course, if Mr. Akers was surreptitiously researching “rue tea” or other
substances in circumstances suggesting that he may have intended to cause Ms. Akers to
ingest them without her knowledge or consent, that would be an entirely different
hypothetical, and our holding in this case would have no application to the facts of that
case.
42
V

We turn to the second issue in this case—whether evidence that Ms. Akers did not

receive prenatal care was relevant, and, if relevant, whether the evidence was unduly

prejudicial. Ms. Akers asserts that, like abortion searches, a woman’s forgoing of prenatal

care is not probative of an intent to kill a person, nor does it reflect on one’s obligation to

provide medical care after birth for a living baby if such care becomes necessary. Nor,

according to Ms. Akers, is a lack of prenatal care impeachment evidence of a woman’s

plan for adoption. Ms. Akers further asserts that even if such evidence was minimally

The Dissent’s hypothetical attempting to equate Ms. Akers’ abortion searches with
evidence that Ms. Akers “expressed unbridled joy that a third child was on the way” to
establish her state of mind in a murder trial, see Dissent Slip Op. at 14 n.8, is simply
inapposite to the evidence presented in this case and our analysis of the same. As our case
law clearly reflects, the relevancy inquiry undertaken in each case is dependent upon the
facts, the party’s assertions of the basis of relevance, and other factors, including how
speculative, ambiguous, and equivocal the inferential links are in a chain of inferences.
See, e.g., Fuentes v. State, 454 Md. 296, 326 (2017); Snyder v. State, 361 Md. 580, 596
(2000); Vitek v. State, 295 Md. 35, 40–42 (1982). For the reasons set forth herein, the
abortion searches fail to meet the basic relevancy threshold. Whether hypothetical
statements made by Ms. Akers to a third party in which she expressed joy about a
pregnancy would satisfy a relevancy inquiry is not before us, nor would our holding in this
case address such a hypothetical.

Finally, we similarly conclude that the relevancy inquiry in this case is not
analogous to the Dissent’s hypothetical about a bank robber wearing a red shirt. See
Dissent Slip Op. at 15 n.9. Such a hypothetical does not involve the same speculative and
ambiguous chain of inferences present here. Again, unless one assumes that a woman who
researches abortion early in her pregnancy is more likely to harm or not have a plan for a
live baby many months later upon a baby’s delivery, it is simply not relevant.
43
probative of any material fact, it is prejudicial because it triggers unconscious biases that

shape the inferences that a person draws about a woman who forgoes prenatal care.

The State asserts that a failure to obtain prenatal care was relevant in the context of

the “unique facts” of this case, namely, that the evidence related to the disparate prenatal

care between Ms. Akers’ first two pregnancies and this one. Although the State made a

general relevancy argument with respect to Ms. Akers’ lack of prenatal care in the

Appellate Court, 27 the State did not argue the relevance of disparate prenatal care at any

time prior to its brief in this Court—that characterization of the evidence made its debut in

the Appellate Court’s opinion. Before us, the State points out that Ms. Akers obtained

prenatal care for her pregnancies for her two children prior to this pregnancy, but she did

not do so with this pregnancy. The State asserts that the evidence of disparate prenatal care

between Ms. Akers’ pregnancies with her two children and this one tended to show that

Ms. Akers did not want another child, did not make plans for his arrival, and intended to

kill him if he was born alive. Before turning to the parties’ contentions, we make a few

observations.

First, there is no statutory obligation for a woman to seek obstetrical care, and a

woman’s forgoing of prenatal care is not a crime in Maryland. See generally CR § 2-103(f)

(prohibiting the application of the murder or manslaughter of a viable fetus offense to a

pregnant woman’s act or failure to act).

27
As discussed supra, the prosecutor did not make any relevancy argument with
respect to the prenatal care during the arguments pertaining to Ms. Akers’ motion to
exclude this evidence, and the State did not comment on Ms. Akers’ lack of prenatal care
during opening or closing arguments.
44
Second, we find instructive this Court’s comments in Kilmon, when the Court

rejected the State’s statutory interpretation of the reckless endangerment statute as applying

to a woman who was accused of ingesting cocaine while pregnant. 394 Md. at 170. In

rejecting the State’s statutory interpretation in that instance, we observed that it could

quickly lead to the policing of pregnant women through the criminalization of a “whole

host of intentional and conceivably reckless activity” that could be considered harmful or

reckless behavior, including:

consuming alcoholic beverages to excess, to smoking, to not maintaining a
proper and sufficient diet, to avoiding proper and available prenatal medical
care, to failing to wear a seat belt while driving, to violating other traffic laws
in ways that create a substantial risk of producing or exacerbating personal
injury to her child, to exercising too much or too little, indeed to engaging in
virtually any injury-prone activity that, should any injury occur, might
reasonably be expected to endanger the life or safety of the child. Such
ordinary things as skiing or horseback riding could produce criminal liability.

Id. at 177–78 (emphasis added). We cautioned that “[i]f the State’s position were to

prevail, there would seem to be no clear basis for categorically excluding any of those

activities from the ambit of the statute” and that “criminal liability would depend almost

entirely on how aggressive, inventive, and persuasive any particular prosecutor might be.”

Id. at 178.

Third, the unfortunate reality is that forgoing obstetrical care is not uncommon.

Prenatal care is not equally available to all women in this country. Persons of color, persons

with low-income, and persons living in rural areas are more likely to lack access to

obstetrical care. Rachel Treisman, Millions of Americans are Losing Access to Maternal

Care. Here’s What Can be Done, Minn. Pub. Radio News (Oct. 12, 2022), available at

45
https://perma.cc/LR8Z-LG6M. In Maryland, in 2021, 16.5% of women in Maryland

received no or inadequate prenatal care. See Jazmin Fontenote et al, March of Dimes,

Where You Live Matters: Maternity Care Deserts and the Crisis of Access and Equity in

Maryland 1, 3 (2023). A woman who does not obtain prenatal care may be the subject of

improper gender stereotypes and implicit biases arising out of societal views on how a

pregnant woman should act. With these observations in mind, we turn to the evidence and

arguments presented here.

We hold that evidence that a woman has forgone prenatal care, by itself, is ordinarily

irrelevant to an intent to kill or harm a live baby at birth. It is too ambiguous, speculative,

and equivocal to infer that a woman who forgoes prenatal care while pregnant is more

likely to kill or harm a live human being. Women forgo prenatal care for a host of reasons

that do not involve criminal conduct.

With respect to the State’s argument pertaining to the disparate prenatal care,

although we are not comfortable holding that evidence of disparate prenatal care would

never be relevant to any material issue in any case, given that this issue was not raised

before the trial court, we will not address it further in the context of the evidence presented

at Ms. Akers’ trial.

Before leaving this topic, we reiterate the concern we expressed in Kilmon over the

potential for state policing and prosecution of pregnant women for their conduct, including

drawing incriminating inferences from said conduct. Moreover, even if minimally

probative, the unfair prejudicial effect of such evidence may exceed any minimal probative

value. Given the frequency with which women forgo prenatal care or receive inadequate

46
prenatal care—which can be influenced by a variety of socioeconomic factors—and the

stigma and gender stereotypes occasioned by the admissibility of this type of evidence, a

trial judge should examine the evidence very closely, including the reasons for its

admissibility as well as any adverse immaterial inferences arising from gender stereotypes

and implicit biases, and carefully weigh any probative value against the potential

prejudicial and inflammatory effects.

VI

In conclusion, we hold that the evidence that Ms. Akers contemplated terminating

her pregnancy by conducting internet searches between six and nearly eight months prior

to delivery was irrelevant, and therefore inadmissible. The termination searches were not

probative of motive or intent to kill or harm a child. The predicate fact—lawfully

contemplating the termination of a pregnancy—does not support the inferences advanced

by the State—an intent, plan, or motive to kill or harm a person.

We similarly hold that, on these facts, evidence of Ms. Akers’ bare decision to forgo

prenatal care was not probative of motive or intent to kill or harm a live child. Women

forgo prenatal care for a variety of reasons, and without more, the failure to obtain such

care is too speculative, ambiguous, and equivocal to support an inference that a woman

would be more likely to harm a live child or prevent a live child’s access to medical care

if such care was necessary. To the extent that the State has argued before this Court that

Ms. Akers’ disparate prenatal care is relevant, given that this argument has been made for

the first time before this Court, we decline to address it. Although we cannot say that a

lack of prenatal care will never be relevant to any material issue, when presented with such

47
evidence, a trial judge should examine the evidence very closely, including the reasons that

the State seeks its admission, as well as any adverse immaterial inferences arising from

gender stereotypes and implicit biases, and carefully weigh any probative value against the

potential prejudicial and inflammatory effects.

We therefore reverse the judgment of the Appellate Court with instructions to that

court to remand this case to the circuit court for a new trial.

JUDGMENT OF THE APPELLATE
COURT OF MARYLAND REVERSED
WITH INSTRUCTIONS TO REMAND THE
CASE TO THE CIRCUIT COURT FOR
HOWARD COUNTY FOR A NEW TRIAL;
COSTS TO BE PAID BY HOWARD
COUNTY.

48
Circuit Court for Howard County
Case No. C-13-CR-19-000367

Argued: September 9, 2024
IN THE SUPREME COURT

OF MARYLAND

No. 7

September Term, 2024
______________________________________

MOIRA E. AKERS

v.

STATE OF MARYLAND
______________________________________

Fader, C.J.
Watts
Booth
Biran
Gould
Eaves
Killough,

JJ.
______________________________________

Concurring Opinion by Watts, J.
______________________________________

Filed: February 19, 2025
Respectfully, I concur. I join the majority opinion with the exception of footnote

11 on pages 18-19. I agree with the majority opinion’s holdings that Ms. Akers’s internet

searches about terminating a pregnancy during a period in which she would be able to

legally obtain an abortion in Maryland are not relevant and that Ms. Akers’s “bare decision

to forgo prenatal care was not probative of motive or an intent to kill or harm a live child.”

Maj. Slip Op. at 1-2. I do not join the Majority’s discussion in footnote 11, however,

concerning the standard of review for the determination of whether evidence is relevant.

Over the course of 17 years, this Court has concluded that a trial court’s

determination as to relevancy is reviewed de novo, i.e., that the standard of review for a

decision concerning whether evidence is relevant is the de novo standard of review. See,

e.g., DeLeon v. State, 407 Md. 16, 20, 962 A.2d 383, 385 (2008) (“The determination of

whether evidence is relevant is a matter of law, to be reviewed de novo by an appellate

court.” (Citation omitted)); Williams v. State, 457 Md. 551, 563, 179 A.3d 1006, 1013

(2018) (“When the circuit court determines whether a piece of evidence is relevant, that is

a legal conclusion, which is reviewed without deference.”). Recognizing that not all

relevant evidence is admissible, we have determined that the standard of review for the

admissibility of relevant evidence is the abuse of discretion standard. See, e.g., Williams,

457 Md. at 563, 179 A.3d at 1013 (“However, the circuit court’s decision to admit relevant

evidence is reviewed for an abuse of discretion.”).

In response to the Dissent, however, with the discussion of the standard of review

for a relevancy determination in footnote 11, the Majority weighs in on a matter that it

acknowledges was not raised by either party and is not necessary to be addressed for the
resolution of the case. 1 Since at least 2008, this Court has concluded that the standard of

review for a determination of relevancy is de novo with respect to the issue of whether the

proposed evidence is relevant. See DeLeon, 407 Md. at 20, 962 A.2d at 385. This

conclusion has been adopted in other cases, such as Fuentes v. State, 454 Md. 296, 325,

164 A.3d 265, 282 (2017), and Hall v. State, 214 Md. App. 208, 227, 75 A.3d 1055, 1066

(2013). The conclusion was not one that was reached casually. The consciousness of the

Court’s commitment to the de novo standard of review is demonstrated by the

circumstances involved in the issuance of the opinion in Williams, 457 Md. 551, 179 A.3d

1006. The Williams opinion was initially issued with language indicating that the standard

of review for a determination of relevance was an abuse of discretion standard. The Office

of the Public Defender filed a motion for reconsideration, which was granted. This Court

revised the Williams opinion and reissued it, describing the standard of review as follows:

Interpretation of the Maryland Rules presents a question of law, and

1
In a three-page footnote, the Dissent contends that there are “legitimate arguments”
supporting what it characterizes as “three [] standards of review this Court has applied to
relevance determinations over the years” and that the standard of review for a relevance
determination should be the abuse of discretion standard. Dissent Slip Op. at 16-19 n.10.
The Dissent disapproves of case law of this Court establishing the standard of review as de
novo and, by its own admission, makes an issue of something that is not before the Court.
See Dissent Slip Op. at 18 n.10 In the end, the Dissent concludes that the Majority is
correct that neither party has asked this Court to resolve “the tension in our case law on
this issue.” Dissent Slip Op. at 18 n.10. In my view, not every argument raised in a
dissenting opinion requires a response, let alone one that appears to validate the Dissent’s
point of view. This is particularly the case where the Dissent on its own initiative
challenges the validity of prior case law of this Court as resting on “shaky ground[,]” where
neither party has done so. Dissent Slip Op. at 17 n.10. I cannot join the Majority’s
discussion in footnote 11 which leans into the Dissent’s position that there is an issue with
or tension in this Court’s case law concerning the de novo standard of review for relevance
determinations.

-2-
are thus reviewed de novo to ascertain whether the trial court was legally
correct in its rulings. State v. Graves, 447 Md. 230, 240, 135 A.3d 376, 382
(2016); Lisy Corp. v. McCormick & Co., 445 Md. 213, 221, 126 A.3d 55, 60
(2015); Williams v. State, 435 Md. 474, 483, 79 A.3d 931, 936 (2013); State
v. Daughtry, 419 Md. 35, 46, 18 A.3d 60, 67 (2011); DRD Pool Serv., Inc. v.
Freed, 416 Md. 46, 62, 5 A.3d 45, 55 (2010); Khalifa v. Shannon, 404 Md.
107, 142, 945 A.2d 1244, 1264 (2008); Gray v. State, 388 Md. 366, 375, 879
A.2d 1064, 1068 (2005); Davis v. Slater, 383 Md. 599, 604, 861 A.2d 78,
80–81 (2004). See Cole v. State, 378 Md. 42, 56, 835 A.2d 600, 607 (2003)
(observing that the application of the Maryland Rules to a particular situation
is a question of law reviewed de novo). When the circuit court determines
whether a piece of evidence is relevant, that is a legal conclusion, which is
reviewed without deference. However, the circuit court’s decision to admit
relevant evidence is reviewed for an abuse of discretion. An abuse of
discretion occurs where no reasonable person would take the view adopted
by the circuit court. Fuentes v. State, 454 Md. 296, 325, 164 A.3d 265, 282
(2017); Alexis v. State, 437 Md. 457, 478, 87 A.3d 1243, 1254 (2014).
Therefore, we interpret the Maryland Rules de novo, and review the trial
judge's admissibility determinations for an abuse of discretion.

Id. at 562-63, 179 A.3d at 1012-13. These circumstances demonstrate that there is no

tension with respect to the Court’s view as to the standard of review for a relevancy

determination.

Nonetheless, in response to comments by the Dissent, the Majority states: “To the

extent that statements in earlier cases are inconsistent with statements in more recent cases

concerning the de novo standard of review, that issue has not been briefed or raised by any

party.” Maj. Slip Op. at 19 n.11. The Majority refers to our case law establishing that the

standard of review for relevancy is de novo as “our repeated assertion that the standard of

review is de novo[.]” Maj. Slip. Op. at 19 n.11. Rather than confirm that the standard of

review for relevancy is de novo, the Majority injects uncertainty into the area and, in the

process, undermines settled case law. Unlike the Majority, I would not characterize the

cases that use the de novo standard of review as having existed for just over “the past

-3-
several years” or as merely being “more recent cases” when DeLeon was issued 17 years

ago. Maj. Slip. Op. at 18-19 n.11. Nor would I imply that there is an issue with respect to

the standard of review for relevancy or refer to our case law concerning the de novo

standard of review as a repeated assertion.

The parties in this case did not raise an issue as to the applicable standard of review

or indicate that there was any discrepancy with respect to the standard. On brief, in

describing the applicable standard of review, Petitioner stated that appellate courts review

de novo a trial court’s determination as to whether evidence is relevant. For its part, the

State urged this Court to reject case law relied upon by Petitioner for the proposition that

the termination inquiry evidence at issue was not relevant and deem the disputed evidence

to be relevant. In reviewing the relevancy determination, the Majority could have simply

applied the de novo standard of review, which is not in dispute.

Instead, the Majority engages in a discussion indicating that to the extent that

“earlier cases” may be inconsistent with “more recent cases[,]” giving the impression that

there is credence to the Dissent’s view that the standard of review is uncertain, but

ultimately concludes that under either standard of review the outcome of the case would

be the same. In doing so, the Majority characterizes cases that use the de novo standard of

review as having existed for just over “the past several years” or as being “more recent

cases[,]” states that the “issue has not been briefed or raised[,]” and refers to case law

establishing that the standard of review is de novo as “our repeated assertion[.]” All of

this, albeit inadvertently, perhaps, creates needless uncertainty and weakens case law

concerning the de novo standard of review for relevancy, when neither party has indicated

-4-
that there is an issue.

Typically, this Court does not on its own with no controversy at issue undermine

our case law. Appellate courts do not generally, without request, look back and imply that

cases previously decided by the Court were decided wrongly. In this case, in response to

the Dissent, the Majority has done so, calling into question case law that has established

that the standard of review for a relevancy determination is de novo, rather than simply

reaffirming the established standard.

So, while I join the majority opinion’s holding in this case, I do not join its

discussion of the standard of review for relevancy in footnote 11 on pages 18-19.

-5-
Circuit Court for Howard County
Case No. C-13-CR-19-000367
Argued: September 9, 2024

IN THE SUPREME COURT

OF MARYLAND

No. 7

September Term, 2024
______________________________________

MOIRA E. AKERS

v.

STATE OF MARYLAND
______________________________________

Fader, C.J.,
Watts,
Booth,
Biran,
Gould,
Eaves,
Killough,

JJ.
__________________________________

Dissenting Opinion by Gould, J.,
which Biran, J., joins.
___________________________________

Filed: February 19, 2025
Motive is a relevant issue in a murder case, and no less so when the victim is a

newborn baby. Evidence of a motive is, therefore, relevant under Maryland Rule 5-401.

Here, the jury determined that Ms. Akers’ baby was born alive, and that Ms. Akers caused

her baby’s death. With those two findings in hand, the jury had to determine Ms. Akers’

state of mind. Whether Ms. Akers would be convicted of first-degree murder, second-

degree murder, or involuntary manslaughter hung in the balance.

A strong desire not to have another child—one that lasts from the beginning of the

pregnancy until the moment of birth—is a motive to kill a newborn. Not wanting another

child is also a reason to have an abortion. If a pregnant woman does not want another child,

both an abortion and killing the newborn are means to the same end, albeit radically

different means with different legal implications. When the abortion option is no longer

available, and the pregnant woman perceives a continuing need to keep her pregnancy

secret from everyone, including her husband, and she perceives no viable alternative due

to real or perceived stigmas and disapproval by family members, then killing the baby

immediately upon its birth becomes more probable. This is particularly so where the

pregnant mother’s hope that the pregnancy will terminate on its own—abetted by the

conscious decision to forgo prenatal care—is dashed.

To determine Ms. Akers’ state of mind on November 1, 2018, all the facts and

circumstances that led to her actions that day are relevant, including her contemplation of

an abortion, her and her husband’s joint desire for her to get an abortion, her failure to get

an abortion, her lie to her husband that the pregnancy was ectopic and had terminated, her

internet searches relating to self-help pregnancy termination, her need for secrecy, her
decision to forgo prenatal care, and her refusal to get help when she went into labor and

her water broke. Those facts and circumstances led to the decisions Ms. Akers made on

that fateful day.

Not so says the Majority. According to the Majority, evidence that Ms. Akers

contemplated an abortion is not relevant “unless one assumes that a person who researches

abortion options is more likely to commit murder[.]” Maj. Op. at 35. As the Majority sees

it, Rule 5-401 demands that, to be relevant, a piece of evidence must have a predictive

quality to it; here, that conducting research on abortions portends or indicates a proclivity

for murder.

The flaw in this logic is obvious when applied in a different context. Suppose the

CEO of a major corporation is shot and killed. Based on a suspect’s resemblance to a

surveillance photo as well as his possession of a firearm of the type that was used in the

killing, that suspect is arrested and charged with the murder. Later, it is discovered that six

months before the killing, the accused attended a demonstration protesting the

corporation’s business practices. The prosecution seeks to admit evidence that the accused

attended the demonstration. Attending a demonstration criticizing a corporation does not

make a person more likely to murder its CEO. But it does go to motive and would be

relevant under Rule 5-401, notwithstanding any First Amendment implications. Under the

2
Majority’s logic, however, a Maryland trial court would be constrained to exclude such

evidence. 1

To find that the abortion evidence was relevant to Ms. Akers’ state of mind, one

need not equate abortion to murder, put it on the same moral plane as murder, or find that

considering an abortion indicates a proclivity to commit murder. Nor does a finding that

such evidence was relevant undermine, in any way, the protected status in Maryland of a

woman’s right to choose. 2 This appeal is about a simple application of Rule 5-401. Here,

the trial court correctly applied this rule and the Appellate Court of Maryland, in a

thoughtful and measured opinion, properly affirmed.

Accordingly, I respectfully dissent.

I

Under Maryland Rule 5-401, “‘[r]elevant evidence’ means evidence having any

tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence.” This rule

1
The Majority states that I believe “this is an apt analogy because the predicate
conduct—conducting abortion searches and attending a rally—is constitutionally
protected.” Maj. Op. at 42 n.26. The Majority certainly emphasized the protected status of
a woman’s right to choose both now and when the events in this case occurred, so it seems
fitting to include a hypothetical that implicates other constitutionally protected rights. But
the purpose of this analogy is only, as stated at the outset, to illustrate the flaw in the
Majority’s articulation of the appropriate relevance test.
2
Regardless of the outcome here, by statute, Ms. Akers and every other woman in
Maryland will remain free to terminate a pregnancy without the State’s interference before
viability, or at any time thereafter if there is a risk to her life or if the fetus has a serious
deformity. MD. CODE ANN., HEALTH-GEN. § 20-209 (2023 Repl. Vol., 2024 Supp.). And
a woman’s right to an abortion is now protected by the Maryland Declaration of Rights.
MD. CONST. DECL. OF RTS. art. 48.

3
sets a “very low bar” for relevance. Williams v. State, 457 Md. 551, 564 (2018) (citing

State v. Simms, 420 Md. 705, 727 (2011)). As this Court, quoting McCormick on Evidence

verbatim, explained:

Under our system, molded by the tradition of jury trial[s] and predominantly
oral proof, a party offers his evidence not en masse, but item by item. An
item of evidence, being but a single link in the chain [of] proof, need not
prove conclusively the proposition for which it is offered. It need not ever
make that proposition appear more probable than not. Whether the entire
body of one party’s evidence is sufficient to go to the jury is one question.
Whether a particular item of evidence is relevant to his case is quite another.
It is enough if the item could reasonably show that a fact is slightly more
probable than it would appear without that evidence. Even after the probative
force of the evidence is spent, the proposition for which it is offered still can
seem quite improbable. Thus, the common objection that the inference for
which the fact is offered ‘does not necessarily follow’ is untenable, [as] it
poses a standard of conclusiveness that very few single items of
circumstantial evidence ever could meet. A brick is not a wall.

Smith v. State, 423 Md. 573, 590-91 (2011) (quoting 1 McCormick on Evidence § 185 (4th

ed. 1992)). Thus, “[r]elevance is a relational concept,” so a piece of evidence must be

related logically to a matter at issue in the case. Snyder v. State, 361 Md. 580, 591 (2000).

Individual details should not be considered separately. Spector v. State, 289 Md. 407, 434

(1981). And, standing alone, each piece of evidence does not have to meet a party’s burden

of proof. Snyder, 361 Md. at 591.

There are two aspects to relevance: materiality and probative value. Smith, 423 Md.

at 590. “Materiality looks to the relation between the proposition for which the evidence is

offered and the issues in the case[,]” and “[p]robative value is ‘the tendency of evidence to

establish the proposition that it is offered to prove.’” Id. (quoting 1 McCormick on Evidence

§ 185). In Rule 5-401, the materiality prong is reflected in the phrase “any fact that is of

4
consequence to the determination of the action[.]” Id. (quoting Md. R. 5-401); see also 5

Maryland Evidence, State & Federal § 401:1 (2024); Joseph F. Murphy, Jr., Maryland

Evidence Handbook § 501 (4th ed. 2010) (“Maryland Rule 5-401, like Rule 401 of the

Federal Rules of Evidence, uses the term ‘of consequence’ to deal with the concept of

materiality.”). A fact is material if its resolution will “somehow affect the outcome of the

case.” King v. Bankerd, 303 Md. 98, 111 (1985). “Substantive law dictates whether a

particular issue is or is not (in the words of Rule 5-401) ‘of consequence to the

determination of the action.’” Murphy, Maryland Evidence Handbook § 501. As explained

below, when determining the defendant’s state of mind in a murder case, the jury may

properly consider whether the defendant had a motive to kill. The existence or absence of

a motive is, therefore, a “fact that is of consequence” in a murder case.

McCormick offers two ways to think about probative value. In doing so, he uses E

to denote the evidence, and the fact or consequence that the evidence is offered to establish,

which is called the “hypothesis,” is denoted by H. The first way is to “simply ask ‘Does

learning of this evidence make it either more or less likely that the disputed fact is true?’”

1 McCormick on Evidence § 185 (8th ed. 2022). Put another way, the test can be framed

as whether the “probability of the hypothesis H given the evidence E is less than the

probability of H without considering E.” Id. McCormick illustrates this test with a

hypothetical defendant charged with assaulting his neighbor who wants to introduce

evidence of his reputation for being nonviolent. Id. McCormick explains: “Knowing that

someone has this reputation seems to make it less likely that he would commit an assault,

presumably because we accept the underlying generalization that a smaller proportion of

5
people with a reputation for nonviolence assault their neighbors than is the case for people

generally.” Id.

This first way of thinking about probative value seems to be the approach the

Majority applies here. In McCormick’s terms, the Majority seems to be saying something

like this: “Knowing that Ms. Akers conducted internet research on self-managed abortions

early in her pregnancy does not make it more likely that she would kill her baby

immediately upon its birth than if she had not conducted such research.”

But there is a drawback to this approach, as explained by McCormick:

Sometimes, however, this direct mode of reasoning about the probability of
an hypothesis will be more difficult to apply because the effect of E on the
probability of H will not be so apparent. A second approach considers the
probability of the evidence given the hypothesis, P(E | H). Evidence that is
more likely to arise when H is true than when H is not true supports H;
evidence that is less likely to arise under H than not-H supports not-H.
Evidence of either type is probative of H. But evidence that is just as likely
to arise when H is true as when H is false is of no use in deciding between H
and not-H—and is irrelevant.

Id. (footnotes omitted). Using a hypothetical assault charge to illustrate this approach,

McCormick explains that “it seems less probable that a person who committed the assault

would have such a reputation than that a person who did not commit the assault.” Id. This

is the approach that is appropriate here; I will return to it and apply it below.

A

The State charged Ms. Akers with first-degree murder, two counts of second-degree

murder, involuntary manslaughter, and first-degree child abuse. For each of the homicide

charges, the jury was instructed that the State had to prove that “Baby Akers was born

alive,” and that Ms. Akers “caused the death of Baby Akers.” The State won the battle of

6
the experts on the first issue, as the jury determined that Ms. Akers’ baby was, in fact, born

alive. The jury also credited Ms. Akers’ account of what she did with the baby upon his

birth in determining that she caused her baby’s death. 3 Without those two threshold

findings, the jury would not have even reached the issue of Ms. Akers’ state of mind. Thus,

our consideration of h

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10802091. Public record. Not legal advice.