Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  July 31, 2019                                                                  Bridget M. McCormack,
                                                                                               Chief Justice

                                                                                      David F. Viviano,
                                                                                      Chief Justice Pro Tem
  156458
                                                                                    Stephen J. Markman
                                                                                         Brian K. Zahra
                                                                                   Richard H. Bernstein
                                                                                   Elizabeth T. Clement
  PEOPLE OF THE STATE OF MICHIGAN,                                                 Megan K. Cavanagh,
                                                                                                    Justices
            Plaintiff-Appellee,

  v                                                      SC: 156458
                                                         COA: 332734
                                                         Eaton CC: 15-020176-FH
  JAMES DAVID URBAN,
           Defendant-Appellant.

  _________________________________________/

          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
  1
    Because neither party argues Coy should be overruled, we do not address whether it is
  the appropriate standard and simply apply it here.
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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
                                                                                                              3

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.




                        I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                  foregoing is a true and complete copy of the order entered at the direction of the Court.
                        July 31, 2019
       s0730
                                                                            Clerk
