Eaton
CC: 15-020176-FH
Bridget
M. McCormack, Chief Justice David F. Viviano, Chief Justice
Pro Tem Stephen J. Markman Brian K. Zahra Richard H.
Bernstein Elizabeth T. Clement Megan K. Cavanagh, Justices
Order
On
March 6, 2019, the Court heard oral argument on the
application for leave to appeal the August 31, 2017 judgment
of the Court of Appeals. On order of the Court, the
application is again considered and, pursuant to MCR
7.305(H)(1), in lieu of granting leave to appeal, we VACATE
that part of the Court of Appeals opinion holding that the
language used in the laboratory report that " it can be
concluded to a reasonable degree of scientific certainty that
the DNA profile ... is from the same individual, " met
the requirement from People v. Coy, 243 Mich.App.
283, 301, 620 N.W.2d 888 (2000), of "some analytic or
interpretive evidence concerning the likelihood or
significance of a DNA profile match ...." The
Coy standard requires that when DNA evidence is
introduced, it must be accompanied by some qualitative or
quantitative interpretation.[1] Id. at 302, 620
N.W.2d 888. The descriptive phrase, "to a reasonable
degree of scientific certainty" offers neither. The
phrase is a legally created term of art that is unused by
scientists outside of courtrooms. Kaye, The Double Helix
and the Law of Evidence (Cambridge: Harvard University
Press, 2010), p. 82. Because the phrase is meaningless and
potentially misleading, the United States Attorney General
has directed United States Department of Justice forensic
laboratories to ensure that it is not used in reports or
testimony. United States Department of Justice, Memorandum
for Heads of Department Components, Recommendations of
the National Commission on Forensic Science; Announcement for
NCFS Meeting Eleven (September 6, 2016), available at
< https://www.justice.gov/opa/file/891366/download>
(accessed July 18, 2019) [https://perma.cc/9JLK-ZGH9]; see
also National Commission on Forensic Science, Views on
the Commission— Use of the Term "Reasonable
Page 366
Scientific Certainty" (March 22, 2016),
available at <
https://www.justice.gov/archives/ncfs/file/839726/download>
(accessed July 18, 2019) [https://perma.cc/GK4P-K7J9]
(encouraging the Attorney General to abandon the phrase
because it has "no place in the judicial process"
for many reasons, including that it lacks scientific meaning,
is misleading, and is without any real-world significance to
the scientific fields represented by expert testimony).
We
nonetheless AFFIRM the result reached by the Court of Appeals
on this issue because we agree with its conclusion in the
alternative that admission of the DNA evidence did not affect
the defendants substantial rights and therefore does not
require reversal. The forensic expert performed a
quantitative analysis to generate the report she presented as
evidence. That analysis revealed that the blood that matched
the victims DNA did so within a frequency of no fewer than 1
in 53.85 octillion (53.85 × 1027) and the
defendants matched within a frequency of no fewer than 1 in
18.62 nonillion people (18.62 × 1030). The
defendant did not object to the admission of the report
summarizing that the match was "to a reasonable degree
of scientific certainty," and one reason may have been
because that description was less harmful than one showing
these quantitative probabilities. But even had he objected to
the lack of a supporting foundation for the DNA evidence as
required by Coy, the defendant could not show he was
prejudiced. The purpose of the DNA evidence was to confirm
that the defendant and the victim were at the scene of the
altercation and that both shed blood. The defendants theory
of the case admitted as much; during closing arguments, the
defense described the altercation as a "brawl" with
the victim. In all other respects, leave to appeal is DENIED,
because we are not persuaded that the remaining questions
presented should be reviewed by this Court.
Markman,
J. (concurring).
While
I would also affirm the result reached by the Court of
Appeals, I would not do so on the basis of the harmlessness
of the error asserted by the majority; rather, in my
judgment, no error occurred at all. In particular, I do not
believe that the report of the prosecutors expert that the
DNA match here was supported to a "reasonable degree of
scientific certainty" breached People v. Coy,
243 Mich.App. 283, 302, 620 N.W.2d 888 (2000), given that the
genetic analysis in this case revealed that the blood that
matched the victims DNA did so within a frequency of no
fewer than 1 in 53.85 octillion people and the blood that
matched defendants DNA did so within a frequency of no fewer
than 1 in 18.62 nonillion people. As concluded by the Court
of Appeals, the experts articulation fully satisfied the
requirement of Coy that either a "qualitative
or quantitative" interpretation of the evidence be
provided. People v. Urban, 321 Mich.App. 198,
203-205, 908 N.W.2d 564 (2017). Identifying the evidence in
this case as possessing a "reasonable degree of
scientific certainty" constitutes a fully compliant
description as it pertains exactly to the "quality or
kind" of the DNA match. See Merriam-Websters
Collegiate Dictionary (11th ed.) (defining
"qualitative" as "of, relating to, or
involving quality or kind"). Moreover, as recognized by
Marylands highest court: "When the random match
probability is sufficiently minuscule, the DNA profile may be
deemed unique. In such circumstances, testimony of a match is
admissible without accompanying contextual statistics ... [,
and] the expert may testify that in the absence of identical
twins, it can be concluded to a reasonable scientific
certainty that the evidence sample and the defendant
sample came from the same person."
Page 367
Young v. State,
388 Md. 99, 119-120, 879 A.2d 44
(2005) (emphasis ...