Sometimes watching trials of other defense lawyers can feel like watching nails on a chalkboard. This is particularly true when the prosecution plays dirty and the defense attorney does not catch on. Unfortunately, this happens all too often. You see, in a trial, no witness is allowed to comment on the credibility or lack of credibility of another witness. A police officer cannot say, for example, that they found one witness to be more credible than another. Unfortunately, many times this kind of vouching testimony slips in and the defense lawyer is not on high enough alert to stop it.

While vouching for the complainant is problematic by any witness in a child criminal sexual conduct case, it is especially harmful to the accused when an expert does it. Vouching can happen in a few ways. First, a witness can directly say that a child is not lying and simply state the child is telling the truth. Alternatively, a witness can slip it in more indirectly by saying something like “the child’s story is consistent with a child who has been sexually abused.”

Experts are Particularly Persuasive in Child Criminal Sexual Conduct Cases

Expert witnesses routinely testify at trials involving young witnesses and children. On July 11, 2019, the Michigan Supreme Court made a ruling in two cases calling out two experts for inappropriate testimony. In case you want to read the consolidated opinion from both cases, the cases, it can be found here. The cases are called People v Thorpe and People v Harbison. In Thorpe Thomas Cottrell was found to be inappropriately vouching when he testified that children “only lie 2% to 4%” of the time. In Harbison, Dr. Debra Simms, an expert pediatrician was found to give improper testimony when she concluded that the child was diagnosed with “probable pediatric sexual abuse.”

Expert testimony tends to be very persuasive with juries. The Supreme Court’s decision in these cases recognizes that a jury is easily swayed by the testimony of witnesses labeled as expert witnesses and the dangers of that testimony if unchecked. Often, because a witness is labeled as an expert witness, jurors make certain assumptions about their level of knowledge and expertise and, subconsciously, give more weight to their testimony than it should be given. If every member of a jury is improperly influenced by this testimony, a defendant’s right to a fair trial is all but eliminated and he or she is almost sure to be convicted. During trial, the expert starts by testifying about all of his or her qualifications including education and experience. They often testify that they have been declared an expert before in court and discuss other experiences when they have been qualified. Before they begin to offer testimony about the specific case at hand, the Court officially qualifies them as an expert on certain subjects they will testify about.

Specific Wrongful Vouching Testimony

In Thorpe, the Court held that it is more likely than not that a different outcome would have occurred had the expert not been allowed to testify that children lie about sexual assault 2%-4% of the time, a figure that is not supported by any peer reviewed scientific research. In Harbison, the court found that it was plain error which affected the defendant’s substantial rights, to allow the expert witness to testify that she would maintain her opinion that the child was sexually assaulted which was based on nothing more than her gut feeling and opinion.

The attorneys at Smith Lehman, P.C. have successfully overcome these experts who try to sneak vouching testimony into criminal sexual conduct trials. When the attorneys at Smith Lehman go into a trial, they have studied the other side’s experts, read every transcript possible, and often file pre-trial motions to be sure the “experts” do not repeat inappropriate testimony that they may have gotten away with in the past. Call today to learn more.

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