Criminal Sexual Conduct Lawyer on New Michigan Supreme Court Case

Michigan Criminal Sexual Conduct cases may involve expert witnesses. A new ruling by the Michigan Supreme Court this month will help clarify when an indigent Defendant is entitled to have an expert appointed for their defense.

What Is an Expert Witness?

An expert witness is someone the lawyers in a case either call to testify in Court or consult with to help prepare their case regarding issues requiring specialized knowledge, skills, experience, training, or education in a particular field beyond what a layperson would have.

In Criminal Sexual Conduct (CSC) trials and other hearings, expert witnesses are called by both the Prosecution and Defense.

These experts help judges and juries understand topics like:

  • Psychology
    • Memory,
    • Suggestibility,
    • Delayed disclosure,
    • Etc.
  • Medicine
  • Other scientific evidence
    • DNA
    • Forensics,
    • Etc.

But if you are like most people accused of serious crimes like CSC, the Prosecutor's Office is most likely working with more resources than you. That can affect your ability to hire the expert witness or witnesses you need to mount an adequate defense.

New Michigan Supreme Court Decision Concerning Appointment of Expert Witnesses

On December 6, 2021, the Michigan Supreme Court decided the case of People v. Propp, Case No. 160551. The justices partially reversed a criminal conviction on two main grounds. One of which was that the trial Court had improperly denied the Defendant's request to have an expert witness appointed.

In its Opinion in People v. Propp, the Supreme Court stated that "[g]enerally, when requesting an expert to assist in confronting the prosecution's proof, a defendant must inform the court of the nature of the prosecution's case and how the requested expert would be useful. At a minimum, a defendant must inform the trial court about the nature of the crime and the evidence linking them to the crime."

While Propp was not a Criminal Sexual Conduct case, it certainly affects CSC cases. In Propp, the Defendant was found guilty of murdering his ex-girlfriend. However, he asserted in his defense that they were engaged in the practice of "erotic asphyxiation" during sex and her death was accidental. The murder he was charged with requires intent to kill, and an accident is the opposite of intent.

As you can see, the case did have a sexual component to it. If a Sexual Assault were alleged to have occurred while the alleged victim was being strangled or suffocated at the same time, the accused might be charged with First-Degree Criminal Sexual Conduct (MCL 750.520b) or Second-Degree Criminal Sexual Conduct (MCL 750.520c), on the theory that the CSC occurred "under circumstances involving the commission of any other felony."

More importantly, all of the reasoning behind the Court's decision would apply with equal force if the charge had been any of the multiple Michigan Degrees of Criminal Sexual Conduct.

Denial on the Grounds of Raising an Affirmative Defense

Before trial, Propp requested an expert witness be appointed and paid for at public expense (due to his indigence). He alleged that the expert would have been able to testify that the practice of erotic asphyxiation can be dangerous and deadly if not done correctly. In other words, he could have caused her death by restricting her airway but without any intent to kill.

The trial Court denied Propp's request for funds to hire an expert because it said that Propp's defense of an accident amounted to something called an "affirmative defense." Therefore, Propp failed to meet the requirement of showing a "substantial basis" for the accident defense.

An "affirmative defense" is essentially a defense that, instead of just negating something the Prosecution must prove (e.g., sexual contact, sexual penetration, intent, premeditation, etc.), introduces some outside circumstance making the act not a crime even if the Defendant did do it. Therefore, the Defendant actually bears the burden of establishing it.

If a financially indigent Defendant seeks money from the Court to help establish an affirmative defense, they must show a "substantial basis" for that defense. The Court needs to ensure that it is not wasting public funds on a defense that is unlikely to be viable in the first place.

After going to trial without an expert and being found guilty, Propp challenged his conviction on appeal – First to the Michigan Court of Appeals (which upheld his conviction) and then to the Michigan Supreme Court (which overturned the Court of Appeals in its decision this month).

In reversing the Court of Appeals, the Supreme Court determined that the trial Court was incorrect when it concluded that "accident" qualified as an "affirmative defense" to Propp's murder charge (there were other reasons for the Supreme Court's decision, having to do with certain evidence being allowed, and we may discuss that in a future article).

Again, the Prosecution must prove that the Defendant had the intent to kill. To say that something happened by accident is to say that there was no intent to kill (as opposed to saying, "Yes, I intended to kill, but it's still not a crime because of XYZ…"). Therefore, calling "accident" an "affirmative defense" and requiring the Defendant to meet the high standard of showing a "substantial basis" before granting funds for an expert was a mistake.

In making its decision in Propp, the Michigan Supreme Court referred to one of its earlier cases, People v. Kennedy, 502 Mich 206 (2018), reiterating that when the defense is not an "affirmative defense," the Defendant only needs to show "that there exists a reasonable probability both that the expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial."

In fact, the Michigan Supreme Court has even said that in certain types of CSC cases, it can amount to an ineffective assistance of counsel for the Defendant's Attorney to fail to at least consult with an expert. For example, in some types of Third Degree Criminal Sexual Conduct cases where the alleged victim is 16 years old and "suggestibility" may be a factor.

Click here to learn about Fourth-Degree Criminal Sexual Conduct (MCL 750.520E).

How Courts Decide a Defendant's Indigency

Defendants' circumstances vary. As such, many questions may arise as to whether an expert witness can be appointed for their case.

For instance, the Defendant might wonder:

  • Assuming I need an expert, can I ask the Court for expert witness funds even if my Attorney is not Court-appointed?
  • What if my family helped me hire my Attorney?
  • What if I hired my Attorney on my own, but my circumstances have changed, and I am out of money?

These are questions that must be answered on a case-by-case basis. That is how "indigency" (the inability to fund one's own defense) is determined. Someone must be deemed "indigent" in the first place before they can ask the Court for funds for their defense.

However, our Courts have said that just because a person has a privately hired Attorney does not automatically mean they will not qualify as financially indigent. The Court must look at the circumstances, and a person is to be judged based on their own resources, not those of family or friends.

Do You Always Need an Expert in a CSC Case?

In a CSC case, just because either side could use an expert doesn't necessarily mean that they should. This is a decision that experienced Attorneys need to make. Experts can be essential in the right case.

In the wrong case, an expert may:

  • Confuse a jury,
  • Overcomplicate issues,
  • Overemphasize trivial topics and distract attention from important ones, or
  • Merely provoke the opponent to make these same mistakes in return, turning the case into an unnecessary "battle of the experts."

RELATED: Do I Need an Expert Witness for My Defense in a CSC Case?

Contact an Experienced Attorney for Your Defense

Prain Law, PLLC, specifically concentrating on defending those accused of Criminal Sexual Conduct in Michigan, has the knowledge and experience to determine whether an expert is needed and make other judgment calls for your CSC case.

Michigan Criminal Sexual Conduct Attorney Brian J. Prain has been recognized with many awards, including:

For legal representation, contact Prain Law, PLLC at (248) 731-4543 or online.


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Prain Law, PLLC is focused only on the types charges featured on our website. This helps us deliver the decisive, effective advocacy for which our clients know us. We only serve individuals currently under investigation or who have a current case pending in court. Our firm does not represent injury victims, defendants who have already taken a plea or have been sentenced, or those seeking to expunge a criminal record. We do not respond to anyone who is not involved in a pending investigation or who has a court case for a type of charge we do not handle, but we wish you the very best of luck.