The most common type of expert witness that people associate with the Criminal Sexual Conduct (CSC) cases include DNA and other scientific evidence experts. However, surprisingly few CSC cases involve any of this type of evidence. Believe it or not, the typical prosecution for Criminal Sexual Conduct in Michigan simply involves the Prosecutor asking the jury to convict the accused based just on the word of the accuser alone, without any evidence to corroborate their allegations. In other words, it is not at all uncommon for a CSC jury trial to come down to a “he said, she said“ credibility contest.
For that reason, it should also be no surprise that sitting jurors on a Criminal Sexual Conduct case are left searching for something to "hang their hat on" in favor of one side or the other. Often, an expert witness, such as a clinical practitioner or academic-type in the field of psychology, adolescent brain development, memory and suggestibility, and the like provide the critical factor upon which the jurors' verdict will rest.
Under the Michigan Rules of Evidence, if there are issues for the jury to decide that require more than the common-sense knowledge offered by everyday life experience, either side may call to the stand a witness who has no actual relationship to the facts of the case, but who is qualified by way of specialized "knowledge, skill, experience, training, or education" in that particular field to help educate the jury in hopes of persuading them. This is what an "expert witness" is. When we think of expert witnesses, we see images of famous experts like criminalist Dr. Henry Lee, or forensic pathologist Dr. Michael Baden, both of whom testified in the 1995 trial of O.J. Simpson.
But what if you are facing a serious Michigan CSC charge, such as First Degree Criminal Sexual Conduct, Second Degree Criminal Sexual Conduct, or Third Degree Criminal Sexual Conduct, and you don’t happen to be a wealthy celebrity with enough resources to match those of the government when it comes to commandeering the top doctors, scientists, professionals, and academics? How can you possibly compete in order to get a fair trial? Even the guilty are entitled to a "fair trial," so just imagine the predicament from the viewpoint of a person who is actually innocent.
RELATED: Do I need an expert witness if I'm charged with Criminal Sexual Conduct?
Nobody plans on being accused of a Sex Crime, and If you’re like most people, you have access to some resources, but those resources are limited. If you're fortunate, you and your family may have the resources to hire an experienced, qualified Michigan Criminal Sexual Conduct Attorney to properly defend you, but even if that CSC Attorney significantly reduces their fee, can you afford to hire the expert who may play a key role in saving your life and future? This has long been a dilemma contemplated not just by those accused, but also by Attorneys who charge a fair fee considering the work they intend to put in, but also have to keep their operations running, their staff compensated, etc.
The accused can ultimately be left wondering how to divide their limited resources between the seemingly equally-compelling interests of having money to bond out (after Arraignment and before the Probable Cause Conference and Preliminary Exam), hiring a good CSC Defense Attorney, retaining the all-important qualified expert witness, and other things. Sometimes, an expert for the Defense is necessary, even if they aren't called to the stand, just to educate the Defense on how to effectively confront and cross-examine the Prosecution expert or experts.
If your Attorney is court-appointed because you are financially indigent, it has always been accepted that you are entitled to petition the Court for public funds to hire an expert if a proper showing of necessity (materiality) is made. But what if your situation is more like the one in the paragraph above? As many Public Defenders say, if you can afford to hire your own Attorney, you should. This is because the Public Defenders are working with limited time and resources, too.
But the question remains: Can a person accused of Criminal Sexual Conduct or any other crime who has retained their own Attorney request public funds for an expert? After all, if they can afford to hire their own Attorney, they can hire an expert, too, right?
This is obviously flawed logic, but it's an argument that Prosecutors have made, and therefore, it's an important issue that needs to be dealt with. This is especially true because, for those facing serious charges like Criminal Sexual Conduct, the very fact of being charged itself often causes a ripple effect that hits hard in the pocketbook for collateral reasons that have nothing to do with the CSC charge itself - things such as such as job loss, having to move, a divorce, and others.
Recently, in the case of The People of the State of Michigan v. Terry Lee Ceasor, Case No. 159948, decided March 5, 2021 by the Michigan Supreme Court, the Defendant's conviction and sentence were vacated because his Attorney (or "counsel" as they often say) did not request public funds for an expert. Although it was not a CSC case, Ceasor dealt with the same legal issues we're discussing here. The unique factor was that while many Defendants requesting public funds for an expert have court appointed Attorneys, the Defendant in this case had privately hired (or "retained") his own Attorney. Still, the Supreme Court said:
"[b]y failing to request public funds for an expert based on a mistaken belief that the defendant did not qualify for the funds because he had retained counsel, counsel performed deficiently."
Thus, even though the procedures and legal framework for how to request public funds for a Defense expert are different today than at the time Ceasor went to trial, as of 2021 when the case was decided, the Michigan Supreme Court seems to be sending a clear message that even where the Defense Attorney is retained, they apparently still should request public funds for an expert if necessary when, at the time of the request, the accused Defendant is financially unable to afford to hire an expert on their own.
This Michigan Supreme Court case (technically an Order, not an Opinion) is part of a recent wave of cases decided in early 2021 that strongly impact those charged with Criminal Sexual Conduct in Michigan.