7.5Expert Testimony in Childhood Sexual Abuse Cases
In childhood sexual abuse cases, “the prosecution may present evidence, if relevant and helpful, to generally explain the common postincident behavior of children who are victims of sexual abuse.” People v Peterson, 450 Mich 349, 373 (1995). “The prosecution may, in commenting on the evidence adduced at trial, argue the reasonable inferences drawn from the expert’s testimony and compare the expert testimony to the facts of the case.” Id. However, “‘courts should be particularly insistent in protecting innocent defendants in child sexual abuse cases’ given ‘the concerns of suggestibility and the prejudicial effect an expert’s testimony may have on a jury.’” People v Musser, 494 Mich 337, 363 (2013) (holding that a detective who was not qualified as an expert witness was still subject to the same limitations as an expert because he “‘gave . . . the same aura of superior knowledge that accompanies expert witnesses in other trials,’” and because, as a police officer, jurors may have been inclined to place undue weight on the officer’s testimony), quoting State v Cordova, 137 Idaho 635, 641 (2002).
In childhood sexual abuse cases:
“(1) an expert may not testify that the sexual abuse occurred,
(2) an expert may not vouch for the veracity of a victim,[1] and
(3) an expert may not testify whether the defendant is guilty.” People v Peterson, 450 Mich 349, 352 (1995) (emphasis added).2
See People v Garrison (On Remand), 187 Mich App 657, 659 (1991) (the expert witness improperly vouched for the child-victim when he testified that based on his experience, the victim’s reaction to the anatomically correct dolls “demonstrated that [the victim] had indeed been sexually abused”).
In childhood sexual abuse cases, “an expert may testify in the prosecution’s case in chief regarding typical and relevant symptoms of child sexual abuse for the sole purpose of explaining a victim’s specific behavior that might be incorrectly construed by the jury as inconsistent[3] with that of an actual abuse victim[.]” People v Peterson, 450 Mich 349, 352 (1995). See also People v Sattler-VanWagoner, ___ Mich App ___, ___ (2024), citing Peterson, 450 Mich at 352, and People v Thorpe, 504 Mich 230, 258 (2019).
In addition, “an expert may testify with regard to the consistencies between the behavior of the particular victim and other victims of child sexual abuse to rebut an attack on the victim’s credibility.” Peterson, 450 Mich at 352-353.4 However, testimony regarding a child-victim’s “consistent” behaviors may only be admissible in the following two circumstances:
•when a defendant raises the issue of the child victim’s post-incident behavior; or
•when a defendant attacks the child victim’s credibility. People v Lukity, 460 Mich 484, 501 (1999), citing Peterson, 450 Mich at 373-374.
See People v Draper (On Remand), 188 Mich App 77-79 (1991) (testimony from two experts that indicated the victim had been sexually abused went “beyond merely relating whether the victim’s behavior [was] consistent with that found in other child sexual abuse victims”; rather, “[t]hey [were] opinions on an ultimate issue of fact, which is for the jury’s determination alone”).
Before admitting any expert testimony regarding the child’s behaviors, the court must determine its relevance and probative value under MRE 401 and MRE 403. See Peterson, 450 Mich at 374-375.
In Lukity, 460 Mich at 486-487, the defendant was convicted of CSC-I against his 14-year-old daughter. The victim testified that the defendant had sexually assaulted her more than 40 times during two years, and that after she reported her father’s conduct to a teacher (a year after the last reported incident of abuse), the victim attempted suicide. Lukity, 460 Mich at 487. The defendant argued that his daughter had serious emotional problems unrelated to the alleged sexual abuse that affected her ability to “recount and describe” the events she claimed had taken place. Id. at 501.
Because the defendant questioned the victim’s credibility and attributed her suicide attempt to problems other than the alleged abuse, expert testimony was properly admitted to explain the general characteristics of sexual abuse victims, including the expert’s opinion that the victim’s behavior was consistent with other sexual abuse victims. Lukity, 460 Mich at 501. The expert also acknowledged that some characteristics of sexual abuse victims—suicide attempts, for example—were also consistent with other types of trauma. Id. at 501-502.
1 See People v Thorpe, 504 Mich 230, 235 (2019) (“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”; “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”).
See also People v Sattler-VanWagoner, ___ Mich App ___, ___ (2024) (an expert’s statement “that false reports are ‘statistically very rare,’ though lacking a numeric value, was essentially the statistical vouching described in Thorpe, 504 Mich at 252”; nonetheless, “[t]he isolated nature of the statement and substantial other evidence of [defendant’s] guilt indicates that this error did not affect the outcome”).
2 The Peterson Court expressly reaffirmed its holding in People v Beckley, 434 Mich 691 (1990) (opinion by Brickley, J.), concerning testimony an expert is prohibited from offering. Peterson, 450 Mich at 352.
3 When expert testimony is presented at a criminal trial for criminal sexual conduct involving a child, M Crim JI 20.29, Limiting Instruction on Expert Testimony (in Child Criminal Sexual Conduct Cases), may be appropriate if the testimony is presented “to rebut an inference that a child complainant’s behavior is inconsistent with that of actual victims of child sexual abuse.” M Crim JI 20.29, Use Note. See Section 7.1 for information on syndrome evidence. See also the Michigan Judicial Institute’s Evidence Benchbook, Chapter 4.
4 The Peterson Court expressly clarified its holding in People v Beckley, 434 Mich 691 (1990) (opinion by Brickley, J.), concerning testimony an expert is permitted to offer. Peterson, 450 Mich at 352.