Argued
on application for leave to appeal April 11, 2019.
Chief
Justice: Bridget M. McCormack Chief Justice Pro Tem: David F.
Viviano Justices: Stephen J. Markman Brian K. Zahra Richard
H. Bernstein Elizabeth T. Clement Megan K. Cavanagh
In
Docket No. 156777, Joshua L. Thorpe was convicted following a
jury trial in the Allegan Circuit Court, Margaret Zuzich
Bakker, J., of three counts of second-degree criminal sexual
conduct (CSC-II), MCL 750.520c(1)(a). At trial, the jury
heard testimony from Thomas Cottrell, the prosecution's
expert witness who was qualified as an expert in the area of
child sexual abuse and disclosure. Cottrell neither examined
the alleged child victim nor was provided specific
information about the case; rather, Cottrell was called to
offer an expert opinion based on his education, experience,
and long-term involvement with children and child sexual
abuse. Cottrell testified to the broad range of reactions of
children who are abused, the cost/benefit analysis children
make in deciding whether to disclose abuse, and some of the
reasons children may delay disclosure. The prosecution asked
Cottrell to provide a percentage of the number of children
who lie about sexual abuse. Defense counsel objected, but the
court overruled the objection. Cottrell then testified that
children only lie about sexual abuse 2% to 4% of the time.
The jury convicted Thorpe. Thorpe appealed, and the Court of
Appeals, Hoekstra, P.J., and Murphy and K. F. Kelly, JJ.,
affirmed the convictions in an unpublished per curiam opinion
issued on August 10, 2017 (Docket No. 332694). Thorpe moved
for reconsideration, which the Court of Appeals denied.
Thorpe then sought leave to appeal in the Supreme Court, and
the Supreme Court ordered and heard oral argument on whether
to grant the application or take other action. 503 Mich. 869
(2018).
In
Docket No. 157404, Brandon J. Harbison was convicted
following a jury trial in the Allegan Circuit Court, Kevin W.
Cronin, J., of two counts of first-degree criminal sexual
conduct (CSC-I), MCL 750.520b(1)(b); attempted CSC-I, MCL
750.520b(1)(b); two counts of CSC-II, MCL 750.520c(1)(a); and
one count of accosting a child aged less than 16 years old
for immoral purposes, MCL 750.145a. At trial, the prosecution
presented testimony from Dr. N. Debra Simms, a pediatrician
and an expert in the field of child sexual abuse diagnostics.
Dr. Simms examined the alleged child victim, noted
nonspecific findings, cited a pediatrics journal article, and
diagnosed the child with "probable pediatric sexual
abuse." The jury convicted Harbison. Harbison filed an
appeal as of right and a motion to remand for an evidentiary
hearing. The Court of Appeals, while retaining jurisdiction,
granted the motion to remand. Following the hearing, the
trial court granted a new trial. However, the Court of
Appeals, Murphy, P.J., and Meter, J. (Ronayne Krause, J.,
concurring in the result), reversed the trial court's
grant of a new trial and affirmed Harbison's convictions
in an unpublished per curiam opinion issued on January 26,
2017 (Docket No. 326105). Harbison sought leave to appeal in
the Supreme Court, and the Supreme Court, in lieu of granting
leave to appeal, vacated the part of the Court of Appeals
judgment concerning the testimony of Dr. Simms and remanded
the case to the Court of Appeals for reconsideration in light
of People v Peterson, 450 Mich. 349 (1995). 501
Mich. 897 (2017). On remand, in an unpublished per curiam
opinion issued on January 23, 2018, the Court of Appeals,
Murphy, P.J., and Meter and Ronayne Krause, JJ., again
affirmed Harbison's convictions, holding that it could
not find a clear error with regard to Dr. Simms's
testimony. Harbison again sought leave to appeal in the
Supreme Court, and the Supreme Court ordered and heard oral
argument on whether to grant the application or take other
action. 501 Mich. 1074 (2018).
In a
unanimous opinion by Justice Zahra, the Supreme Court, in
lieu of granting leave to appeal, held:
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, and
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.
1.
Preserved, nonconstitutional errors are subject to
harmless-error review under MCL 769.26, which states that no
judgment or verdict shall be set aside or reversed or a new
trial be granted by any court of this state in any criminal
case, on the ground of misdirection of the jury, or the
improper admission or rejection of evidence, or for error as
to any matter of pleading or procedure, unless in the opinion
of the court, after an examination of the entire cause, it
shall affirmatively appear that the error complained of has
resulted in a miscarriage of justice. If the issue is
preserved, then the effect of the error is evaluated by
assessing it in the context of the untainted evidence to
determine whether it is more probable than not that a
different outcome would have resulted without the error. If
the issue is not preserved, then the defendant must show a
plain error that affected substantial rights. In Docket No.
156777, defense counsel's objection to Cottrell's
expert testimony that children only lie about sexual abuse 2%
to 4% of the time was sufficient to preserve Thorpe's
nonconstitutional claim that Cottrell's testimony should
not have been admitted. Defense counsel did not open the door
to Cottrell's testimony regarding the rate of false
reports in child sexual abuse cases simply by asking him on
cross-examination whether children lie or manipulate.
Accordingly, Thorpe's claim was preserved, and Thorpe had
the burden of establishing a miscarriage of justice under a
"more probable than not" standard to establish
error requiring reversal. In Docket No. 157404, defense
counsel did not object to Dr. Simms's expert testimony
that the child suffered "probable pediatric sexual
abuse." Accordingly, Harbison's claim was reviewed
under the plain-error standard.
2. In
People v Smith, 425 Mich. 98 (1986), the Supreme
Court held that an examining physician, if qualified by
experience and training relative to treatment of sexual
assault complainants, can opine with respect to whether a
complainant had been sexually assaulted when the opinion is
based on physical findings and the complainant's medical
history. Four years later, the lead opinion in People v
Beckley, 434 Mich. 691 (1990) (opinion by Brickley, J.),
observed that evidence of behavioral patterns of sexually
abused children may be admissible for the narrow purpose of
rebutting an inference that a complainant's postincident
behavior was inconsistent with that of an actual victim of
sexual abuse, incest, or rape. Five years later, in
People v Peterson, 450 Mich. 349 (1995), the Supreme
Court found a majority to clarify the plurality decision in
Beckley and held that 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 with that
of an actual abuse victim. Peterson further held
that 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. However, the Supreme Court held
that the experts in Peterson improperly vouched for
the veracity of the child victim by testifying that children
lie about sexual abuse at a rate of about 2%. Applying that
framework, in Docket No. 156777, not only did Cottrell opine
that only 2% to 4% of children lie about sexual abuse, but he
also identified only two specific scenarios in his experience
when children might lie, neither of which applied in this
case. As a result, although he did not actually say it, one
could reasonably conclude on the basis of Cottrell's
testimony that there was a 0% chance the child had lied about
sexual abuse. Furthermore, the prosecution's closing
argument on rebuttal highlighted this improper evidence at a
pivotal juncture at trial. Thorpe's trial was a true
credibility contest because there was no physical evidence,
there were no witnesses to the alleged assaults, and there
were no inculpatory statements. Because the trial turned on
the jury's assessment of the child's credibility, the
improperly admitted testimony wherein Cottrell vouched for
the child's credibility likely affected the jury's
ultimate decision. Under these circumstances, Thorpe showed
that it was more probable than not that a different outcome
would have resulted without the expert's improper
testimony. In Docket No. 157404, Dr. Simms's opinion that
the child suffered "probable pediatric sexual
abuse" was contrary to the Supreme Court's unanimous
decision in Smith. Dr. Simms candidly acknowledged
that her examination of the child showed no physical evidence
of an assault; her conclusion that the child suffered
"probable pediatric sexual abuse" was based solely
on her own opinion that the child's account of the
assaults was "clear, consistent, detailed and
descriptive." That testimony fell within
Smith's holding that an examining physician
cannot give an opinion on whether a complainant had been
sexually assaulted if the conclusion is nothing more than the
doctor's opinion that the victim had told the truth.
Furthermore, this error was plain. The decision in
Smith was unanimous and has never been called into
question. The test in Smith is a very
straightforward bright-line test that trial courts can
readily observe, and other than in this case, every other
Court of Appeals panel that has considered an examining
physician's diagnosis of "probable pediatric sexual
abuse" has acknowledged that the admission of this
testimony is error. Finally, Dr. Simms's testimony that
the child suffered "probable pediatric sexual
abuse" affected defendant's substantial rights.
Regardless of whether "probable pediatric sexual
abuse" is a term of art that can be used as a diagnosis
with or without physical findings, Dr. Simms's testimony
had the clear effect of improperly vouching for the
child's credibility. Harbison's case was also largely
a credibility contest with the only evidence against Harbison
being the child's uncorroborated testimony; accordingly,
given the lack of compelling testimony that formed the basis
for the verdict and the plainly erroneous testimony that the
child suffered "probable pediatric sexual abuse,"
the plain error affected Harbison's substantial rights.
This error also invaded the province of the jury to determine
the only issue in the case, and Dr. Simms reinforced this
plain error by claiming that her diagnosis was based on a
"national [consensus]" of pediatricians when even a
cursory review of the pediatrics journal article on which she
relied revealed that the authors did not intend for
pediatricians to rely on the article to make a diagnosis of
"probable pediatric sexual abuse" at trial. This
improperly admitted testimony very likely bolstered the
child's credibility and affected the verdict and
integrity of Harbison's trial.
Docket
No. 156777 reversed and remanded to the Allegan Circuit Court
for a new trial; Docket No. 157404 reversed and remanded to
the Allegan Circuit Court for a new trial.
BEFORE
THE ENTIRE BENCH
OPINION
Zahra,
J.
In
these consolidated cases, we address the propriety and scope
of expert testimony in cases alleging child sexual abuse. In
Thorpe, we address the admissibility of testimony
from an expert in the area of child sexual abuse and
disclosure about the rate of false reports of sexual abuse by
children to rebut testimony elicited on cross-examination
that children can lie and manipulate. In Harbison,
we address the admissibility of expert testimony from an
examining physician that "diagnosed" the
complainant with "probable pediatric sexual abuse"
despite not having made any physical findings of sexual abuse
to support that conclusion. In Thorpe, we hold that
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. And
because Thorpe has established that this testimony more
likely than not affected the outcome of the case, we reverse
the judgment of the Court of Appeals and remand to the
Allegan Circuit Court for a new trial. In Harbison,
we hold 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.
Because we conclude that this error was plain, affected
Harbison's substantial rights, and seriously affected the
integrity of his trial, we reverse the judgment of the Court
of Appeals and remand to the Allegan Circuit Court for a new
trial.[1]
I.
PEOPLE v THORPE
In
2006, defendant Joshua Thorpe began a relationship with
Chelsie. She had a three-year-old daughter, BG, from a
previous relationship. BG viewed Thorpe as a father figure
and would refer to him as "dad."
In
August 2007, Thorpe and Chelsie had a daughter together. For
the next few years, Thorpe and Chelsie raised both girls with
each parent working outside the home and sharing
responsibilities for watching the children. In 2008,
Thorpe's mother, Kimberly, helped take care of both girls
after Chelsie went back to school. Kimberly also ran a
daycare, and she had a daughter of her own, AS (Thorpe's
half-sister), who was close in age and good friends with BG.
In
2010, Thorpe and Chelsie ended their relationship, but Thorpe
continued parenting both BG and his daughter. The girls also
continued attending the daycare run by Kimberly. Thorpe moved
into a new residence down the street from his mother and
within walking distance of the girls' elementary school.
Although there was no formal custody agreement, Thorpe took
care of the girls three days a week when he was not working
(Saturday afternoon through Tuesday morning).
In
2012, Chelsie completed her schooling and entered into a
relationship with a new boyfriend. Chelsie considered moving
to Kalamazoo with him. This caused some conflict between
Chelsie and Thorpe. For instance, on July 4, 2012, Chelsie
took both girls to see fireworks with her new boyfriend but
without Thorpe. According to Thorpe, this led to an argument
between Chelsie and Thorpe. Additionally, Thorpe claims that
he did not have any parenting time with the girls for the
rest of the summer. Thorpe asserts that he did not see either
of the girls until August 27, 2012, when he took his daughter
out for her birthday. Thorpe claims that on that day he told
Chelsie that he no longer wanted to have parenting time with
BG. According to Kimberly, she had advised Thorpe that he
should focus on his biological daughter.
Chelsie
became pregnant around this same time. Kimberly-who continued
watching over BG and Thorpe's daughter at daycare-began
to notice that BG had tantrums and outbursts, including when
BG would leave the daycare to go home with her mom. Sometime
in the fall of 2012, Chelsie arranged for six weeks of
counseling sessions for BG. According to Chelsie, she
speculated at the time that BG was upset about her pregnancy.
Thorpe
stopped seeing BG altogether in late September or early
October 2012, but there are conflicting accounts about who
made this decision. Thorpe and Kimberly contend that it was
Thorpe's decision. According to both Chelsie and BG,
however, it was BG who decided that she no longer wanted to
visit Thorpe. At that time, BG did not report any
inappropriate touching by Thorpe. Kimberly continued to care
for both girls, and she occasionally saw BG around Thorpe
when he would pick up his daughter from daycare. According to
Kimberly, she never got the sense that BG was repulsed by or
afraid of Thorpe.
In
April 2013, BG told AS (Kimberly's daughter and
Thorpe's half-sister) that Thorpe had touched her
inappropriately months earlier. AS reported this information
to Kimberly. Kimberly talked with BG, who allegedly informed
her of a single incident of inappropriate contact. Kimberly,
in turn, informed Chelsie. According to Kimberly, she did not
believe the allegation, but she believed that she had a duty
to communicate the allegation to Chelsie. Chelsie then
notified the authorities. When questioned by authorities, BG
reported that Thorpe had touched her inappropriately on
multiple occassions. The prosecution charged Thorpe with
three counts of second-degree criminal sexual conduct
(CSC-II).[2]
At
trial, BG testified that Thorpe sexually assaulted her three
separate times on two dates in August 2012 when she and
Thorpe's daughter had stayed the night at Thorpe's
residence. According to BG, the first two incidents occurred
while she was watching Dora the Explorer in the same
bed as Thorpe's daughter, who had fallen asleep. Thorpe
entered the room, laid down next to BG, and rubbed her vagina
with his hand under her pajamas but over her
underwear.[3] The second incident occurred several
minutes later when Thorpe again repeated the same behavior.
Neither incident involved penetration. Both times BG told
Thorpe to stop, and he did. BG testified that her dog, Jake,
was in the room during both incidents.[4] The next morning
Thorpe told her not to tell anyone about the two
incidents.[5]
The
third incident occurred about a week later when BG again
stayed at Thorpe's residence with his daughter. According
to BG, Thorpe entered the room while his daughter was
sleeping, pulled BG's wrist behind her body, and placed
her hand on his unclothed penis. BG asserted that she tried
to pull her arm away and kicked his leg. Thorpe let go of her
wrist at that point.
During
the trial, the jury heard testimony from Chelsie, BG,
Kimberly, Thorpe, and an investigator who interviewed BG. The
jury also heard testimony from the prosecutor's expert
witness, Thomas Cottrell. Cottrell, who has a master's
degree in social work and is the vice president of counseling
services at the YWCA Counseling Center, was qualified as an
expert in the area of child sexual abuse and disclosure.
Cottrell neither examined BG nor was provided specific
information about the case. The prosecutor called him to
offer an expert opinion based on his education, experience,
and long-term involvement with children and child sexual
abuse. Cottrell testified to the broad range of reactions of
children who are abused, the cost/benefit analysis children
make in deciding whether to disclose abuse, and some of the
reasons children may delay disclosure.
On
cross-examination, the following exchange took place between
defense counsel and Cottrell:
Q. And that goes along with-well, let me ask you
this, kids can lie, true?
A. Anyone who has ever worked with a child or has had a child
knows that they can lie, yes.
Q. And they can manipulate.
A. They can do that, yes.
On
redirect, the following exchange took place:
Q. In your training and experience of all of the
times that you've handled child sexual abuse cases, what,
in your experience, if you can say, is the percentage of
children who actually do lie?
A. About the sexual assault itself?
Q. About the sexual assault itself.
Defense
counsel objected at this point and asked if there were
statistics to support Cottrell's anticipated answer. The
trial court ultimately overruled the objection by concluding
that defense counsel had brought up the issue of children
lying on cross-examination and, thus, opened the door to the
prosecutor's line of questioning on redirect.
Cottrell
proceeded to answer the prosecutor's last question as
follows:
A. Yes. I can only speak to our experience at the
organization. There is literature out there that is extremely
variable in its-in it's [sic] identification of
fabricated disclosures. I can tell you within our population,
we run into it probably two to four percent of the cases that
we get hav[ing] children alleging abuse when-sexual abuse
when abuse did not actually occur. But I will say that in
those cases, there is clear motivation for them to do that.
When children lie, they lie with a purpose. They are usually
trying to get something positive to happen to them or escape
some kind of pain. . . . The whole process of investigating
and being questioned and being brought into therapy are not
pleasant experiences for children by any stretch of the
imagination. So lying to bring that on to them is a
relatively rare occurrence because there is no gain for
children in having the spotlight put on them.
Cottrell
then identified two scenarios in which children are likely to
lie about sexual abuse: (1) when there is an abused sibling
and the other child wants to be a part of whatever the
sibling is doing, including therapy, and (2) when there is
domestic violence against the other parent and the child lies
about sexual abuse in order to bring attention to that
situation.
The
prosecutor again questioned:
Q. In your experience, you said it's rare; is
that correct?
A. And it's extremely rare.
On
re-cross, defense counsel proceeded with the following line
of questioning:
Q. These percentages are when it's discovered,
when it's figured out, fair?
A. Correct. Yes.
Q. It's very possible that there are other cases
out there that were fabricated and false that were never
discovered.
A. Well, we don't know what we don't know,
obviously.
Before
jury deliberations, the trial court provided the jury with
the following instruction regarding Cottrell's testimony:
You have heard Thomas Cottrell's opinion about the
behavior of sexually abused children.
You should consider that evidence only for the limited
purpose of deciding whether [BG]'s acts and words after
the alleged crime were consistent with those of sexually
abused children.
That evidence cannot be used to show that the crime charged
here was committed or that the defendant committed it. Nor
can it be considered an opinion by Thomas Cottrell that [BG]
is telling the truth.
The
jury convicted Thorpe as charged. The trial court sentenced
him to concurrent prison terms of 71 months to 15 years of
imprisonment for each count. Because BG was under 13 years
old and Thorpe was over 17 years old, Thorpe was also
sentenced to lifetime electronic monitoring under MCL
750.520n(1). A judgment of sentence was entered on March 22,
2016.
With
the assistance of appointed appellate counsel, Thorpe
appealed of right. The Court of Appeals affirmed the
convictions in an unpublished per curiam opinion, finding no
error warranting reversal.[6] Thorpe moved for reconsideration, which
the Court of Appeals denied.
Thorpe
sought leave to appeal in this Court. We directed the Clerk
of this Court to schedule oral argument on whether to grant
the application or take other action, ordering the parties to
address the following issues: "(1) whether the trial
court abused its discretion by allowing expert testimony on
redirect about the rate of false reports of sexual abuse by
children, see [People v
Peterson[7], in order to rebut testimony elicited on
cross examination that children can lie and manipulate; and,
if so, (2) whether the error was
harmless."[8]
II.
PEOPLE v HARBISON
Beginning
in January 2010, nearly 18-year-old defendant Brandon
Harbison would occasionally babysit his nearly 9-year-old
niece, TH. He did so through December 2012, around which time
TH was removed from her home and placed in foster care. The
prosecution characterized TH's childhood as "a life
of turmoil" with a seriously drug-addicted mother and a
dysfunctional home.
While
watching a movie with her foster-care mother about a family
struggling to stay together, TH "out of nowhere"
started sobbing and began to describe "really bad"
things that Harbison had done to her. The foster mother
stopped her and called their caseworker before TH could give
any details. After TH disclosed instances of sexual abuse to
the authorities and a pediatrician, the prosecution charged
Harbison with two counts of first-degree criminal sexual
conduct (CSC-I), [9] attempted CSC-I, [10] two counts of CSC-II,
[11]and one count of accosting a child aged
less than 16 years old for immoral purposes.[12]
At
trial, TH testified that Harbison touched her in
inappropriate places, including her vagina, sometimes with
his hand and sometimes with his mouth. This first happened at
her grandmother's house and then at her mother's
house. She testified that at her grandmother's house, her
older brother was also in the room but that she and Harbison
were alone at her mother's house. TH described Harbison
performing oral sex on her "[t]oo many times to
remember," masturbating and ejaculating onto her
backside, making her watch pornography, and attempting
vaginal and anal penetration. TH also testified that Harbison
would put his private part in her mouth and that this
happened "[a] lot." On cross-examination by defense
counsel, TH estimated that Harbison had sexually abused her
on more than 30 occasions. The last time one of these
incidents occurred, Harbison told her that it was going to
stop because he and his girlfriend were having a little girl.
TH's
biological mother testified that Harbison, who was her
brother, lived with her and her children for a time and also
babysat for her. She testified that she was using
methamphetamine at the time and that he was too. After she
read the police report in this matter, she asked TH if it was
true, and TH said "yes."
The
prosecution presented testimony from Dr. N. Debra Simms, a
pediatrician and an expert in the field of child sexual abuse
diagnostics, in its case-in-chief. Dr. Simms examined TH and
diagnosed her with "probable pediatric sexual
abuse."
Dr.
Simms testified:
Q. So all that information that you described all
came from [TH].
A. Well it came from [TH] and sometimes from the
foster mom.
Q. The information that you said that [TH] told you
that she was touched by [Harbison], that he-all of that
information that you just recently described, that was all
from [TH]?
A. Yes ma'am, that was in my taking a history
from [TH] prior to the physical examination.
Q. What did your physical examination consist of
after you got the original history ...