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Recently, in January, 2021, we published our article covering two new Michigan Court of Appeals cases, People v. Deleon and People v. Brooks, where convictions for Criminal Sexual Conduct were reversed because the Prosecution's psychological expert (the same expert in both cases) testified in a way that amounts to "improper vouching." This is because his testimony had the effect of bolstering the accuser's claims when he alleged that only a small percentage of children lie about being sexually abused.
The Deleon and Brooks cases involved only psychological expert witnesses. But on August 13, 2021, in the case of People v. Ernesto Evaristo Uribe, Docket No. 159194, the Michigan Supreme Court issued an Order reversing a conviction for First Degree Criminal Sexual Conduct under MCL 750.520b where a medical doctor who'd examined the complainant testified as an expert and stated that sexual abuse was a medical diagnosis, and that in his opinion, the Complainant was in fact a victim of sexual abuse. The Supreme Court essentially found that this amounted to the doctor testifying that the Defendant was guilty.
The Supreme Court reaffirmed their previous rulings on expert testimony in Criminal Sexual Conduct cases, stating:
"We held that 'examining physicians cannot testify that a complainant has been sexually assaulted or has been diagnosed with sexual abuse without physical evidence that corroborates the complainant’s account of sexual assault or abuse because such testimony vouches for the complainant’s veracity and improperly interferes with the role of the jury.”
This is yet another case in a series of what seems to be fair to call a "crack-down" on improper vouching by expert witnesses in Criminal Sexual Conduct cases by the Michigan Courts. It is generally the function of the jury, not a witness, to decide the ultimate issue of guilt vs. innocence.
Essentially, there are two types of witnesses that testify at trials: regular witnesses, or “lay“ witnesses, and expert witnesses. An example of a lay witness would be a regular person who saw, heard, or knows about something relevant to the case fro their own personal experience, for example, someone who was present and watching with their own two eyes while some type of Assault was occurring.
An expert witness is someone with specialized training, skill, experience, or education about a topic that is relevant to the case, even though they don’t have any type of personal knowledge of any of the facts in the case, and who typically only becomes involved in the case as a witness well after the events in question.
For example, a DNA evidence expert may testify in a Criminal Sexual Conduct case regarding biological evidence, even though the know nothing about the events of the underlying case. While there is no general limitation on the different types of expert witnesses that could be called in a case, or the topics that could be addressed, experts in Criminal Sexual Conduct cases typically fall into one of a few limited categories, most notably:
- Psychological expert witnesses
- Medical expert witnesses, including pediatricians, other doctors, and SANE nurses
- DNA and biological evidence expert witness
The second category, medical expert witness testimony, which is what was at issue in the new Uribe case, are most often seen in cases of First Degree Criminal Sexual Conduct and Third Degree Criminal Sexual Conduct (MCL 750.520d), because by their nature, Criminal Sexual Conduct 1st Degree and Criminal Sexual Conduct 3rd Degree involve claims of "sexual penetration," rather than just sexual contact. The medical testimony is commonly offered to show some type of "personal injury," which is one of the "multiple variables," under the Michigan First Degree CSC law, for example.
RELATED: click here to visit our main page for Second Degree Criminal Sexual Conduct, a charge involving "sexual contact" but not penetration.
So can the Prosecution or Defense just call any expert witnesses to say anything, regardless of whether it is based on sound scientific principles that have been reliably applied to the facts of the case? Thankfully, the answer is "No."
The United States Constitution, Michigan constitution, Michigan Rules of Evidence, and the body of case law interpreting those authorities place special rules and limitations on what experts can testify about. Often times, these rules are specific to Criminal Sexual Conduct Cases.
One of those limitations is the rule against improper “vouching." "Vouching“ by an expert witness basically refers to a situation where the expert has moved beyond proper testimony about their scientific opinions and conclusions (i.e., what physical injuries, if any, did a forensic medical examination or SANE examination ("Rape kit") reveal?), and instead giving what sounds like an ultimate conclusion about guilt or innocence, such as testifying that they believe that the accuser is being truthful, or that the Defendant is guilty.
The expert doesn't necessarily have to say say something das direct as "in my opinion, she is a victim of sexual abuse" or other direct "guilt vs. innocence" type statements that create the "vouching" problem. As these Supreme Court and Court of Appeals CSC cases have shown us, "vouching" can come in the form of more subtle statements in the expert's testimony which may not use words like "guilty" or "victim," but which nevertheless essentially amount to that type of improper conclusion.