Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  March 6, 2015                                                                      Robert P. Young, Jr.,
                                                                                                Chief Justice

                                                                                      Stephen J. Markman
                                                                                          Mary Beth Kelly
  150191-2                                                                                 Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                   Justices
            Plaintiff-Appellee,
  v                                                       SC: 150191
                                                          COA: 313880
                                                          Macomb CC: 2012-000656-FC
  KOLIE LANAR MCADOO,
           Defendant-Appellant.

  _________________________________________/
  PEOPLE OF THE STATE OF MICHIGAN,
            Plaintiff-Appellee,
  v                                                       SC: 150192
                                                          COA: 313881
                                                          Macomb CC: 2012-003414-FH
  KOLIE LANAR MCADOO,
           Defendant-Appellant.

  _________________________________________/

        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
                                                                                                               2

       [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 issue is unpreserved and I am not
convinced that the defendant has demonstrated that he is entitled to relief given the other
evidence of guilt.

       BERNSTEIN, J., joins the statement of MCCORMACK, 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.
                         March 6, 2015
       s0303
                                                                             Clerk
