Expert Testimony in Criminal Sexual Conduct Cases: Early 2021 Update

At Prain Law, PLLC, we're not just a "general practice" criminal defense firm but rather a firm that specifically concentrates on defending those accused of criminal sexual conduct in Michigan (CSC, for short). That's why when our appellate courts issue rulings called "opinions" on CSC cases that are appealed, we pay extra close attention and do our best to make the public aware of these developments.

As we briefly mentioned in our blog article "Expert Testimony in Criminal Sexual Conduct Cases," the Michigan Court of Appeals decided a case in January of 2021, which pertains to the specific testimony in criminal sexual conduct cases under Michigan law.

In our past articles, we've written extensively about expert testimony in CSC cases. Those article topics typically answer the question of whether or not you need a psychological expert witness for your defense if you are charged with criminal sexual conduct in Michigan, such as criminal sexual conduct 1st degree, where your accuser is a minor who is "troubled and maladjusted,” as the Michigan Supreme Court said in a famous case from the '90s.

The issue in this new January 28, 2021, Unpublished Opinion of the Michigan Court of Appeals in the case of People v. Brooks, Docket No. 349955, is related but it actually deals with expert witnesses called by the prosecution against the defendant, and what they are and are not allowed to testify to under state law. The case technically has nothing to do with our firm’s law practice, as we did not represent Mr. Brooks, the defendant in the case. However, it affects our firm’s cases, including those involving a minor accusing someone of CSC.

The Case of People v. Brooks

Mr. Brooks was tried and convicted of first-degree criminal sexual conduct (MCL 750.520b) and second-degree criminal sexual conduct (MCL 750.520c). He was accused of sexually assaulting his girlfriend’s young cousin. Apparently, while the investigation was being conducted, a second young person accused Brooks of sexually assaulting him/her (CSC Opinions don't use names of alleged victims).

It is important to understand what happens when a second accuser surfaces in a criminal sexual conduct case. If you read the Brooks Opinion, you'll see that the defense faced some obstacles even without the expert issue. After a mistrial, the prosecution called 3 expert witnesses on retrial, who included:

  • A Licensed Master Social Worker (LMSW) and Chief Programming Officer at the YMCA of Western Michigan who offers treatment to individuals who say they've been sexually abused. This expert seems to be regularly called by prosecutors in Western Michigan as an expert in the behavior of sexually abused children and perpetrators of sexual abuse. This is the same expert who was the center of the controversy in the case of People v. Deleon, where the court reversed a CSC conviction because the witness testimony amounted to improper "vouching" for the credibility of the accuser (the "complainant").
  • A general practitioner pediatrician specializing in child abuse pediatrics, who'd performed a physical examination upon the complainant.
  • The (then) acting director of the Child Advocacy Center ("CAC"), who conducted the complainant’s forensic interview and referred the complainant for counseling and a medical examination afterward.

THE LMSW TESTIMONY

Aside from the general standard for admitting expert testimony in a trial, Michigan has specific rules for psychological expert testimony in criminal sexual conduct cases involving child complainants/allegations of child sexual abuse. These rules include:

  • an expert may not testify that the sexual abuse occurred;
  • an expert may not vouch for the veracity of [an alleged] victim; and
  • an expert may not testify whether the defendant is guilty.

Additionally, "expert witnesses may not testify that children overwhelmingly do not lie when reporting sexual abuse because such testimony improperly vouches for the complainant's veracity."

The problem in Brooks' case was not that this expert broke any of the rules above. Rather, the Court of Appeals found that the expert said things in his testimony that basically amounted to "vouching" for the credibility of the complainant, even without expressly doing so. The Court pointed out the fact that when there is no physical evidence and it is a "he said, she said" scenario, jurors will often want to "hang their hat" on the expert’s testimony, which is why experts’ testimonies need to be limited.

A qualified, psychological expert can testify to the reliability of a complainant's sexual assault allegation under circumstances in which the disclosure arose when reliability is in question. However, only a jury is legally allowed to judge the complainant's credibility (i.e. whether they are deliberately lying or telling the truth).

THE PEDIATRICIAN TESTIMONY

Just as with psychological expert testimony in CSC cases, certain rules limit medical testimony in a CSC case, such as:

  • An examining physician cannot give an opinion on whether a complainant had been sexually assaulted if the conclusion [is] nothing more than the doctor’s opinion that the victim told the truth;
  • When an examining physician’s testimony is based “solely on what the [alleged] victim had told him,” absent evidence qualifying her as an expert in assessing the credibility of the physician’s testimony, is objectionable because it lacks a “reliable foundation” since jurors are just as qualified to evaluate the victim’s credibility;
  • However, an examining physician — if qualified by experience and training in treating sexual assault complainants — can suggest whether a complainant had been sexually assaulted if the opinion is based on physical findings and the complainant’s medical history.

Additionally, "[W]here there are no physical findings a physician may not testify that the complainant suffered 'possible pediatric sexual abuse' or other phrases indicating a conclusion as to the likelihood that such abuse actually occurred. At the same time, however, a medical expert may offer the opinion that a lack of physical findings does not affirmatively establish that no abuse occurred."

As you can see, the courts want to avoid expert testimony sounding like "vouching" for the complainant's credibility based on things that aren't scientifically reliable. The problem with the doctor's testimony in Brooks' case was that the doctor testified that she "did confirm" suspected sexual abuse.

However, this supposed confirmation was nothing more than the doctor stating that she believed the complainant was being truthful because their actual, physical medical exam came back "normal." The doctor also testified based on a study stating that the majority of children who'd been penetrated were "normal" during a physical examination, but Michigan courts already ruled that relying on that particular study was "seriously misplaced."

Also, it is worth noting that the attorneys, not the judge, are responsible for objecting to improper evidence. In Brooks' case, his counsel did not object to many of these things at trial, so do not assume that the court did anything wrong merely because this testimony was heard by the jury.

THE CAC DIRECTOR/FORENSIC INTERVIEWER TESTIMONY

Concerning the forensic interviewer’s and director of the CAC’s testimonies, the court applied the same framework and rules as it applied to the LMSW above. Therefore, there is no need to restate those rules here.

The Court of Appeals found that certain parts of the CAC director's testimony were proper when examined separately, but the overall "thrust" of her testimony, when taken together, is that she was vouching for the credibility of the complainant. She was allowed to testify to the process and procedure of the forensic interview, as she was qualified to discuss that. However, the problem was that she characterized the forensic interview as a "truth-seeking" process that supposedly weeds out false allegations by using "alternative hypotheses." A good, qualified defense expert will explain why this is not possible.

The Court of Appeals said that the characterization combined with her testimony "strongly implied that she found [the Complainant] credible." For context, her testimony included that when someone discloses sexual abuse, she refers them for counseling and a physical exam, which she did in Brooks’ case.

Remember, just as with the LMSW, an expert witness does NOT have to expressly, specifically "vouch" for the complainant's credibility for it to become a problem. An expert can say and do things that improperly, indirectly "vouch" for credibility. This is such a big deal because a criminal sexual conduct conviction could be reversed, even then the defendant fails to object to the improper testimony at trial. As such, Brooks will be receiving another (third) trial.

Arrested for Criminal Sexual Conduct in Michigan?

If you or someone you know is accused of criminal sexual conduct in Michigan, don't hesitate to contact Prain Law, PLLC, as we concentrate on defending those accused of CSC and other sex crimes. Michigan criminal sexual conduct attorney Brian J. Prain has received high honors for his trial work, including "Best Criminal Defense Attorneys in Detroit" for 2021 by Expertise.com.

You can reach Prain Law, PLLC by calling us at (248) 731-4543 or by filling out our contact form.

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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.