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Michigan Supreme Court Reverses Criminal Sexual Conduct Convictions in Two Consolidated Cases Due to Improperly Admitted Expert Testimony

by Douglas Ankney

The Supreme Court of Michigan reversed convictions for criminal sexual conduct in two consolidated cases due to improperly admitted testimony of expert witnesses.

Joshua Thorpe was in a relationship with Chelsie. The couple had a daughter together. Chelsie also had a daughter from a previous relationship (identified as “BG”). After several years, Thorpe ended the relationship. Ten-year-old BG then accused Thorpe of twice rubbing her vagina over her underwear and of one incident of Thorpe forcing her to touch his bare penis.

Among the witnesses to testify at Thorpe’s trial was Thomas Cottrell. Cottrell had a master’s degree in social work and was vice president of counseling at the YWCA Counseling Center. He 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. He testified for the prosecution as to the broad range of reactions by abused children and as to reasons why a child might delay disclosure.

During cross-examination, Cottrell answered affirmatively when asked if children can lie or manipulate. On redirect, the prosecutor asked what is “the percentage of children who actually do lie?” Defense counsel objected and asked for statistics to support Cottrell’s anticipated answer. The trial court overruled the objection on the grounds that defense had “opened the door” by bringing up the issue of children lying. Cottrell answered that based on his experience 2 percent to 4 percent of children lied when alleging sexual abuse. He further testified that children lied with a purpose, either (1) when an abused sibling is receiving therapy and the other child wants to be included or (2) when the child wants to call attention to domestic violence.

There was no physical evidence that BG was abused. Thorpe was convicted. His judgment was affirmed by the Court of Appeals, and the Supreme Court granted him further review.

Brandon Harbison was accused by his 9-year-old niece (identified as “TH”) of numerous instances of touching her vagina with his hand and mouth and of placing his penis in her mouth.

Dr. N. Debra Simms, an expert in child sexual abuse diagnostics, testified in the prosecution’s case-in-chief. Simms testified that she diagnosed TH with “probable pediatric sexual abuse.”

Simms explained that the term was “standard” among professionals in her field.

A diagnosis of probable pediatric sexual abuse meant there wasn’t any physical signs of sexual abuse, but that the diagnosis was based on the “clear, consistent, detailed or descriptive” account of the abuse given by the victim. An account that wasn’t clear, descriptive, or consistent is relegated to “possible” as opposed to “probable” sexual abuse.

Simms further testified that she didn’t expect to find physical signs of abuse because TH’s accounts of the abuse detailed only touching and oral sex.

On cross-examination, Simms testified her diagnosis was based on what TH had told her.

Harbison was convicted. The Court of Appeals affirmed. The Supreme Court remanded, and the Court of Appeals affirmed again. The Supreme Court granted further review.

The Court observed that an examining physician cannot give an opinion on whether a complainant has been sexually assaulted if the “conclusion [is] nothing more than the doctor’s opinion that the victim told the truth” or solely based “on what the victim ... told the physician.” People v. Smith, 387 N.W.2d 814 (Mich. 1986). And in People v. Peterson, 537 N.W.2d 857 (Mich. 1995), the Court reversed because, “First, the experts ... improperly vouched for the veracity of the child victim” by “testify[ing] that children lie about sexual abuse at a rate of about two percent.”

The Supreme Court determined that Thorpe had shown it was more probable than not that a different outcome would have resulted if Cottrell had not testified that children lie about sexual abuse only 2 percent to 4 percent of the time and that they do so in circumstances not present in Thorpe’s case. Without any physical signs of abuse, the trial was basically a swearing match between Thorpe and BG. Cottrell’s testimony vouched for the credibility of BG. The Court further opined that Thorpe did not “open the door” by merely asking whether children lie or manipulate.

Turning to Harbison’s error, even though it was not properly preserved, the Court determined he established a “plain error that affected his substantial rights.” Dr. Simm’s testimony that TH suffered from “probable pediatric sexual abuse” was contrary to the unanimous holding in Smith. Since the Smith decision was a published decision that had never been questioned, the error should have been obvious to the trial court. The Supreme Court concluded that Simms’ testimony “is far more pernicious than a mere evidentiary error” because it struck at the heart of several principles of underlying rules of evidence. Not only did Simms’ testimony have the effect of vouching for TH’s credibility, but it also invaded the province of the jury to determine the sole issue in the case.

Accordingly, the Court reversed the judgment of the Court of Appeals in both cases and remanded both cases to the Allegan Circuit Court for new trials. See: People v. Thorpe, 2019 Mich. LEXIS 1258 (2019). 

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