Macomb CC: 2012-000656-FC, CC: 2012-003414-FH
Robert P. Young, Jr., Chief Justice Stephen J. Markman Mary Beth Kelly Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein, Justices
On order of the Court, the application for leave to appeal the August 28, 2014 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
McCormack, J. (concurring).
I concur in the order denying leave to appeal. I write separately to note my unease with the expert testimony regarding the toolmark evidence offered by the prosecution. In recent years significant doubt has been cast on the reliability and scientific foundation of that evidence. According to a 2009 forensic science report from the National Research Council of the National Academies, toolmark analysis lacks the empirical and statistical work that is needed to support conclusions regarding identity. The report noted that
[t]oolmark and firearms analysis suffers from the same limitations [as other types of] impression evidence. Because not enough is known about the variabilities among individual tools and guns, we are not able to specify how many points of similarity are necessary for a given level of confidence in the result. Sufficient studies have not been done to understand the reliability and repeatability of the methods. [National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward (Washington, DC: National Academies Press, 2009), p 154.]
The report also raised concerns regarding the subjectivity and error rate in toolmark analysis, as well as the lack of a precisely defined testing process. Id. at 155. Given these criticisms, I believe there are serious questions about whether such evidence has an adequate scientific foundation to allow its admission under MRE 702. See Gilbert v DaimlerChrysler Corp, 470 Mich. 749, 779-783 (2004) (discussing the trial court's role as "gatekeeper" for the admission of expert testimony). I concur in this Court's order denying leave to appeal, however, because this ...