# Derr v. State

> Court of Appeals of Maryland · August 22, 2013 · 434 Md. 88

URL: https://www.frixlaw.com/law-library/cases/7921143

## Case

- **Full name:** Norman Bruce DERR v. STATE of Maryland
- **Court:** Court of Appeals of Maryland
- **Decided:** August 22, 2013
- **Citations:** 434 Md. 88; 73 A.3d 254; 2013 Md. LEXIS 578; 2013 WL 4482447
- **Precedential status:** Published
- **Opinion:** Concurrence by McDonald
- **Judges:** Adkins, Eldridge, Greene, McDonald
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7921143

## How later opinions describe it (automated extraction)

- concluding that, under the Marks Rule, the narrowest holding of the Supreme Court’s decision in Williams v. Illinois, ___ U.S. ____, 132 S.Ct. 2221 , 183 L.Ed.2d 89 (2012), was the position representing the common point of agreement between the plurality and concurring opinions
- concluding that, under the Marks Rule, the narrowest holding of the Supreme Court’s decision in Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), was the position representing the common point of agreement between the plurality and concurring opinions
- explaining that the rights guaranteed under the Confrontation Clause only apply to testimonial statements made out-of-court being offered to prove the truth of the matter asserted
- finding serological and DNA testing reports introduced through lab supervisor’s testimony insufficiently formal to be testimonial because unsigned and no statements attesting to accuracy

## Opinion text

McDONALD, J.,
concurring.
On behalf of the majority, Judge Greene has taken on the unenviable task of deriving a rule from the splintered opinions in Williams v. Illinois, - U.S. -, 132 S.Ct. 2221 , 183 L.Ed.2d 89 (2012). I concur in the result reached in the majority opinion, but write separately because I question whether the rationale of the opinion will ultimately be embraced by the Supreme Court.
The majority opinion follows the direction of the Supreme Court as to how to construe one of its decisions when no single opinion commands a majority of that Court: find the narrowest rationale common to opinions endorsed by a majority of the justices. 1 Our majority adopts the suggestion of Professor Fisher that the narrowest holding to be derived from *140 Williams is that only “formal” or “solemn” statements qualify as “testimonial” and therefore subject to the Confrontation Clause. Majority Op. at p. 116 & n. 17, 73 A.3d at 270-71 & n. 17. Professor Fisher’s theory has been criticized as giving undue weight to Justice Thomas’ unique approach to the Confrontation Clause. 2 It appears to me that, instead of the narrowest holding, Professor Fisher has latched upon the narrowest definition of “testimonial hearsay,” which has the effect of broadly exempting forensic reports and other documents from the purview of the Confrontation Clause. It is not clear to me that this is the narrowest “holding” one can derive from the opinions in Williams. 3
Having said all that, I do not have an alternative unified theory to offer. It does appear to me, however, that the evidence at issue in this case is fairly indistinguishable from that at issue in Williams and that both the plurality in Williams and Justice Thomas would find it admissible. Accordingly, I concur in the judgment in this case and look forward to the next episode in the Supreme Court’s application of the Confrontation Clause to forensic lab reports.
. Marks v. United States, 430 U.S. 188, 193 , 97 S.Ct. 990 , 51 L.Ed.2d 260 (1977).
. See R.D. Friedman, Confrontation and Forensic Laboratory Reports, Round Four, 45 Texas Tech L.Rev. 51, 81 & n. 200 (2012). See also United States v. James, 712 F.3d 79, 95 (2d Cir.2013).
. See The Supreme Court 2011 Term, 126 Harv. L.Rev. 266, 276 (2012) (suggesting that the only “true holding” of Williams is the rejection by Justice Thomas and the dissenters of the plurality’s not-for-truth rationale).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7921143. Public record. Not legal advice.