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 (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. 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 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 defendant's 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 victim's DNA did so within a frequency of no fewer
than 1 in 53.85 octillion (53.85 × 1027) and the
defendant's 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 defendant's
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 prosecutor's expert that the DNA match
here was supported to a "reasonable degree of scientific
certainty" breached People v Coy, 243 Mich.App.
283, 302 (2000), given that the genetic analysis in this case
revealed that the blood that matched the victim's DNA did
so within a frequency of no fewer than 1 in 53.85 octillion
people and the blood that matched defendant's DNA did so
within a frequency of no fewer than 1 in 18.62 nonillion
people. As concluded by the Court of Appeals, the
expert's 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
(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-Webster's Collegiate Dictionary
(11th ed) (defining "qualitative" as "of,
relating to, or involving quality or kind"). Moreover,
as recognized by Maryland's 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." Young v State, 388 Md 99, 119-120
(2005) (emphasis added).
Zahra,
J., joins the statement of Markman, J.
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Notes:
[1] Because neither party argues
Coy should be overruled, we do not address whether
it is the appropriate standard and simply ...