A recent Michigan Court of Appeals panel reversed a conviction for Criminal Sexual Conduct First Degree, commonly called rape, due to improper witness vouching. The case involved three expert witnesses, all of whom testified for the government. In different and sometimes subtle ways, each expert made improper statements about the complaining witnesses (CW) credibility that amounted to their “vouching” for the CW’s credibility.
According to the standard jury instructions utilized in Michigan sex crimes cases it is up to the jury to judge and weigh a witness’s credibility. In reaching this determination, the jury will be instructed to consider a variety of factors including how well the witness was able to see and hear things and was there anything that might have distracted them; how good is their memory; how do they look and act while testifying and do they seem to be telling the truth or are they trying to evade answering and arguing with the lawyers, do they have any personal interest in how the case is decided, and how reasonable is their testimony when compared with all of the other evidence in the case. See M Crim JI 2.6.
Notice that “what do other people think about the witness’s credibility” is not among the factors for the jury to consider. Vouching is improper therefore because it “invades the province” of the jury by substituting someone else’s opinion for the jury’s collective determination.
According to Websters, “vouching” occurs when evidence is supplied that supports or gives personal assurances regarding a witnesses’ testimony. If a prosecutor tells a jury that a police officer should be believed because if he lied, he would be fired, then the prosecutor has “vouched” for the police officer. Vouching is always improper and, in some cases, can amount to prosecutorial misconduct.
Restrictions on vouching are based on the belief that it is the sole province of jury to evaluate the credibility of witnesses and do so without being influenced by a prosecutor’s personal opinion or other extrinsic evidence concerning a witness’ credibility. The same preclusion applies to expert witnesses that might testify on behalf of the government.
In the 2021 case of People v. Eldred Brooks, the defendant was charged with CSC first degree pursuant to Michigan Compiled Laws 750.520b. The case involved allegations of penetration and the complaining witness was nine years old at the time of the alleged abuse. The credibility of the CW was one of the main issues in the case, and it was up to the jury to judge her credibility according to the factors of M Crim JI 2.6 as set forth above.
According to the court’s opinion, at trial, the prosecution called a Dr. Thomas Cottrell who vouched for the complainant’s credibility by testifying to the following:
- The CW maintained her accusations for more than 2 years, so they must be true.
- There was zero percent chance the CW was lying because there was no coaching or custody battles involved, and
- Only a handful of the many thousands of children treated at YMCA falsely report sexual abuse.
Another expert witness for the government was Dr. Yvonne Mallon. She too improperly vouched for the CW by her testimony that the CW suffered from “suspected pediatric sexual abuse.” The Court found that this essentially amounted to the examining physician endorsing the likelihood of abuse by couching it in terms of a medical diagnosis. This suggests to the jury that the medical expert believed the CW and found her to be credible.
Still another of the government’s experts, a Dr. Dianne Adams, also improperly vouched for the CW. She testified that after she interviewed the CW she referred the CW for a medical examination and counseling. Dr. Adams also testified about the truth-seeking goals of her forensic interviewing, and based on her testimony as a whole, the jury would conclude that the referral was made because Dr. Adams believed the CW’s statements about the abuse.
In reversing the conviction, the court referred to the Thrope case, where the court held that “An examining physician’s opinion is objectionable when it is based only on the CW’s own statements because this really invades the province of the jury who is in just as good of a position to determine the veracity of the CWs statements. Thorpe, 504 Mich at 255, quoting People v Smith, 425 Mich 98, 109 (1986).
Witness vouching is sometimes obvious, but it can also be quite subtle. Nevertheless, it is an important issue, which if left unaddressed, can lead to improper criminal convictions. A skilled criminal defense sex crimes trial attorney can help prevent these kinds of improper criminal convictions by raising appropriate objections before and during a CSC trial.