Expert Witness Testimony Issues in Criminal Sexual Conduct Cases
In a previous article, we addressed a common question raised in Michigan criminal sexual conduct (CSC) cases: Do I need an expert witness for my CSC defense? There, we explained what purposes a psychological expert witness can serve for your defense, and which types of cases may require them to preserve your Constitutional rights.
But in a CSC case, the prosecution may call an expert witness, even if the defense doesn’t. Thus, part of having the best defense includes being ready to cross-examine the prosecution’s expert witness, and knowing when to object if they attempt to violate your rights by testifying to something that increases your risk of a wrongful conviction.
A constant problem in Michigan CSC trials is that the prosecution calls an expert witness to testify, or “vouch,” for the credibility of the accuser by suggesting to the jury, either directly or indirectly, that the accuser is “telling the truth.”
This is a problem, because in the American justice system, the ultimate issue of credibility (i.e. whether someone is being truthful versus deliberately lying) is up to the jury to decide. It is typically inappropriate for any witness to give their opinion on whether another person is telling the truth or lying. This is particularly true in cases of first-degree criminal sexual conduct and second-degree criminal sexual conduct, where often the only actual “evidence” is the accuser’s claims alone.
RELATED: Can I be convicted of Criminal Sexual Conduct based only on hearsay?
Recently, the Michigan appellate courts have issued a number of decisions reaffirming the rule that an expert witness cannot vouch for the credibility of the accuser. The rule goes both ways – the defense cannot have an expert testify that the accuser is deliberately lying, either. Any mention of credibility is off-limits.
But the recent wave of cases from the Michigan appellate courts dealt with the recurring problem of prosecution experts in CSC cases testifying to things that enhanced the accuser’s credibility. Perhaps the most notable new case from the Michigan Court of Appeals right now is People v. Deleon, Docket No. 346952 issued April 30, 2020.
Dos and Don’ts of Expert Witness Testimony in CSC Cases
It is worth noting that while there is no official “list” of what an expert witness can or cannot testify to, and new types of testimony are generally possible if they meet something called the “Daubert” standard. Psychological expert witness testimony in CSC cases usually falls into one of two categories:
- The expert witness is offering testimony regarding whether or not the CSC allegations resulted from possible suggestibility/source monitoring error. This is most often the tape called by the defense or by the prosecution to hear about the defense expert.
- The expert witness is testifying about the behavior of sexually abused children. These types of experts are most commonly called by the prosecution. They are often called in an attempt to offer the jury some explanation of why the accuser is not behaving like they should if they truly were sexually abused. Prosecutors and their experts like to call this “non-intuitive victim behavior.“ Of course, the defense could call their own expert to rebut this.
This is not the entire scope of possible expert testimony and criminal sexual conduct cases, but these are the most relevant to our discussion.
People v. Deleon Case
The problem with the recent People v. Deleon case (mentioned at the beginning) was that the prosecution used an expert who is well-known for testifying for the government in a situation that falls under the second bullet point above. The prosecution’s expert testified to what the Court of Appeals deemed improper credibility “vouching.” Examples of such testimonies include the following:
- “[t]ypically, children are—who are fabricating abuse or . . . lying, are usually not going to make it through that level of scrutiny.”
- that in his (the expert’s)experience (as opposed to proof supported by scientific data, research, and studies –documented evidence) it is rare for children to lie about sexual abuse, occurring in less than 2% of cases.
- that with respect to nine- or ten-year-old children and fabricated claims of sexual abuse, “there needs to be a motivation to lie about something,” for example, by making a “particular person happy,” “getting out of trouble,” or “getting some . . . reward.”
- “[t]here needs to be a payoff to motivate the child to maintain something that they know is wrong.”
Ironically, a good expert would testify that the above claims simply aren’t true, and unfortunately, that’s not usually the case. The Court of Appeals found that even though the respective expert was only testifying about children in general, these statements nevertheless had the indirect effect of enhancing the accuser’s credibility in that particular case.
A direct example would be saying “In my opinion, Suzie was very truthful when she said the Defendant engaged in sexual contact with her.” But improper direct vouching also includes even more subtle statements, such as “[the accuser in this particular case] was very forthcoming,” or “her answers were very consistent.”
UPDATE (January, 2021): On January 28, 2021, the Michigan Court of Appeals reversed ANOTHER First Degree Criminal Sexual Conduct conviction based on the SAME EXPERT used by the Prosecution in the Deleon case above in the brand new case of People v. Eldred Lee Brooks, Unpublished Opinion of the Court of Appeals, No. 349955. The Court in Brooks even said that what the Prosecution's expert did read like a "what not to do" list, considering a previous holdings of the Michigan Supreme Court. This just goes to show how adamant these so-called "experts" are to help the Prosecution get convictions in CSC cases, even when the higher Courts have already told them not to do what they are doing. Brooks' conviction was reversed, and he's headed back to the Circuit Court for a new trial. We wish Mr. Brooks and his attorney, whomever that may be, fair and just proceedings.
Takeaways for Expert Testimony in Criminal Sexual Conduct Cases
Whether it is indirect or direct, the Court of Appeals made it clear that all of the above counts as improper “vouching,” and it leads to wrongful convictions for CSC. Another thing the Court of Appeals made abundantly clear is that the defense attorney has an obligation on their client’s behalf to strongly object whenever a prosecution expert tries to do anything like what the expert did in the Deleon case. Our knowledgeable and prepared criminal sexual conduct attorney is fully aware of this.
Perhaps the most important takeaway for you or your loved one when facing criminal sexual conduct charges in Michigan is that many cases end up in the Court of Appeals primarily because something went wrong, the defense attorney may not have done their job properly, and the accused was wrongfully convicted of CSC. The appeals process is lengthy and difficult, so rather than pay and pray on appeal, it’s best to get someone who knows how to do the job right the first time.
Prain Law, PLLC specifically concentrates his practice on defending those accused of Michigan CSC charges. Brian J. Prain has amassed an impressive string of trial victories boasting NOT GUILTY of criminal sexual conduct in a world where many attorneys think “you can’t win these cases, it’s too difficult, the defendant is out of luck…” Brian makes it happen and gives his clients their life back – all of it.
If you or someone you care about is accused of criminal sexual conduct in Michigan, contact Prain Law, PLLC immediately at (248) 731-4543.