934 N.W.2d 693
Mich.2019Background
- Consolidated Michigan Supreme Court review of two Allegan Circuit convictions for child sexual conduct: People v Thorpe and People v Harbison.
- Thorpe: Defendant convicted of three counts of CSC-II based on an alleged victim BG’s testimony; prosecution expert (Thomas Cottrell) — not an examiner — testified that only 2–4% of children fabricate sexual-abuse allegations. Defense objected at trial; objection preserved.
- Harbison: Defendant convicted of multiple counts of CSC based on complainant TH’s uncorroborated testimony; prosecution’s examining pediatrician (Dr. N. Debra Simms) testified she diagnosed “probable pediatric sexual abuse” despite no physical findings. No contemporaneous objection to that testimony.
- Both trials were essentially credibility contests: no direct physical evidence or eyewitnesses corroborating the complainants’ accounts.
- Supreme Court granted relief in lieu of leave: reversed both convictions and remanded for new trials because expert testimony in each case improperly vouched for complainant veracity or invaded the jury’s role.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert testimony that children rarely lie about abuse (2–4%) | Prosecution: testimony was responsive rebuttal after defense elicited that children can lie; admissible to explain credibility. | Thorpe: such testimony vouches for complainant, exceeds permissible scope under Peterson/Beckley/Smith. | Court: Exclusion required; testimony improperly vouched for veracity and likely affected outcome — reversal and new trial. |
| Admissibility of examining physician’s diagnosis of “probable pediatric sexual abuse” absent physical findings | Prosecution: doctor’s diagnosis based on accepted diagnostic categories and child’s clear, consistent history; admissible as expert medical opinion. | Harbison: diagnosis was based solely on complainant’s history, invades jury province, and violates Smith. | Court: Plain error — diagnosing ‘‘probable’’ abuse without corroborating physical findings improperly vouched for credibility and affected substantial rights — reversal and new trial. |
| Standard of review for evidentiary errors | N/A | N/A | Preserved nonconstitutional errors: harmless-error review under MCL 769.26 (defendant must show miscarriage of justice — more probable than not). Unpreserved errors: plain-error review requiring showing of affecting substantial rights and integrity of proceedings. |
| Scope of expert testimony about child sexual-abuse behavior | Prosecution: experts may explain typical symptoms/behaviors to rebut credibility attacks. | Defendants: experts may not express rates of fabrication or opine that a particular child was abused based solely on disclosure. | Court: Permits limited testimony about typical behaviors to explain otherwise misunderstood behavior, but forbids vouching (e.g., numeric fabrication rates or case-specific diagnoses based solely on history). |
Key Cases Cited
- People v Smith, 425 Mich 98 (examining physician may opine only when opinion rests on physical findings and medical history; cannot testify that abuse occurred solely because the victim told the doctor the truth)
- People v Beckley, 434 Mich 691 (syndrome/behavioral-evidence admissible narrowly to rebut inferences that victim’s behavior is inconsistent with abuse)
- People v Peterson, 450 Mich 349 (expert testimony may explain typical symptoms or rebut credibility attacks but experts may not vouch for victim veracity or testify about fabrication rates)
- People v Lukity, 460 Mich 484 (standard for reversal on preserved nonconstitutional error; miscarriage of justice / "more probable than not")
- People v Carines, 460 Mich 750 (plain-error standard for unpreserved constitutional errors; reversal only when error affects substantial rights and integrity of proceedings)