4.3Characteristics of Specific Victim Groups—Expert Testimony
A.Intimate Partner Violence—Battered Woman Syndrome/Battered Partner Syndrome1
“‘Intimate Partner Violence’ has replaced the prior term ‘Battered Women’s Syndrome.’” People v Skippergosh, ___ Mich App ___, ___ n 9 (2024). “‘[B]attered woman’ refers to a woman who is repeatedly subjected to any forceful, physical or psychological behavior by a man in order to coerce her to do something he wants her to do without any concern for her rights, and in order to be classified as a battered woman, the couple must go through the battering cycle at least twice.” Id. (quotation marks and citation omitted). “[E]xpert testimony regarding intimate-partner violence may be appropriate . . . to explain when a complainant endures prolonged toleration of physical abuse and then attempts to hide or minimize the effect of the abuse, delays reporting the abuse to authorities or friends, or denies or recants the claim of abuse[.]” Id. at ___ (quotation marks and citation omitted).
Expert testimony relating to the characteristics associated with intimate partner violence is admissible when the witness is properly qualified and the testimony is relevant and helpful to the jury’s evaluation of the complainant’s credibility. People v Christel, 449 Mich 578, 579-580 (1995). The expert’s testimony is admissible to help explain the complainant’s behavior, but the testimony is not admissible to express the expert’s opinion of whether the complainant was a battered woman or to comment on the complainant’s honesty. Id. at 580 (holding that battered woman syndrome was not relevant “because complainant [had] consistently maintained that the relationship ended . . . and there [was] no evidence that complainant hid or minimized, delayed reporting, or recanted the abuse”).
“Even proposed expert testimony that is offered by a qualified expert and based on reliable scientific data and methods may be properly excluded if it is not relevant to the facts of the case or is offered for a proposition that does not require the aid of expert interpretation.” Skippergosh, ___ Mich App at ___ (cleaned up). In Skippergosh, the victim “satisfied the definition of ‘battered woman.’” Id. at ___. Although the defendant argued that the prosecution’s intimate partner violence expert “was not familiar with the facts of the case, such familiarity is not required.” Id. at ___. “To the contrary, such expert testimony only is admissible to explain the generalities or characteristics of the syndrome.” Id. at ___ (quotation marks and citation omitted) (“Therefore, [the expert] appropriately testified to generalities without opining on the facts of the case, as is common in many criminal cases requiring behavioral expert testimony.”).
B.Victims of Child Sexual Abuse
“[W]hen a defendant attacks the credibility of the victim, a qualified expert may offer testimony to explain the typical behavior of victims of child sex abuse.” People v Sattler-VanWagoner, ___ Mich App ___, ___ (2024). “In child sex abuse cases, an expert may also testify regarding the typical symptoms of child sexual abuse in order to explain a victim’s specific behavior that might be incorrectly construed by the jury as inconsistent with that of an abuse victim or to rebut a credibility attack.” Id. at ___. “Commenting on the numerical odds or a statistical assessment of a witness telling the truth or lying about sexual assault allegations amounts to vouching.” Id. at ___.
“‘[C]ourts 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, 362-363 (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 his testimony), quoting People v Peterson, 450 Mich 349, 371 (1995), modified 450 Mich 1212 (1995). Accordingly, an expert witness’s testimony is limited. Peterson, 450 Mich at 352. The expert witness may not (1) testify that the sexual abuse occurred, (2) vouch for the veracity of the victim, or (3) testify to the defendant’s guilt. Id.
Despite these limitations, “(1) an expert may testify in the prosecution’s case in chief [(rather than only in rebuttal)] 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, and (2) 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.
“Unless a defendant raises the issue of the particular child victim’s postincident behavior or attacks the child’s credibility, an expert may not testify that the particular child victim’s behavior is consistent with that of a sexually abused child. Such testimony would be improper because it comes too close to testifying that the particular child is a victim of sexual abuse.” Peterson, 450 Mich at 373-374.
Where the defense theory raised the issue of the complainant’s postincident behavior (attempting suicide), it was not an abuse of discretion to admit expert testimony comparing the child-victim’s postincident behavior with that of sexually abused children. People v Lukity, 460 Mich 484, 500-502 (1999). The Court stated:
“Under Peterson, raising the issue of a complainant’s post-incident behavior opens the door to expert testimony that the complainant’s behavior was consistent with that of a sexual abuse victim. Accordingly, the trial court did not abuse its discretion in allowing [the expert] to testify.
“Moreover, defendant effectively cross-examined [the expert] and convincingly argued in closing that the fact that a behavior is ‘consistent’ with the behavior of a sexual abuse victim is not dispositive evidence that sexual abuse occurred. Specifically, [the defendant] argued that ‘almost any behavior is not inconsistent with being a victim of sexual assault.’” Lukity, 469 Mich at 501-502.
In People v Smith, the case consolidated with Peterson, the Michigan Supreme Court found that the trial itself was “an almost perfect model for the limitations that must be set in allowing expert testimony into evidence in child sexual abuse cases.” Peterson, 450 Mich at 381. In that case, the victim delayed reporting the abuse for several years, but the defendant did not ask the victim any questions suggesting that the delay in reporting was inconsistent with the alleged abuse nor did the defendant attack the victim’s credibility. Id. at 358. The trial court allowed a single expert to clarify, during the prosecutor’s case-in-chief, that child sexual abuse victims frequently delay reporting the abuse. Id. at 359-360. The expert’s testimony helped to dispel common misperceptions held by jurors regarding the reporting of child sexual abuse, rebutted an inference that the victim’s delay was inconsistent with the behavior of a child sexual abuse victim, and did not improperly bolster the victim’s credibility. Id. at 379-380.
“Michigan courts regularly admit expert testimony concerning typical and relevant symptoms of abuse, such as delayed reporting and secrecy.” People v Muniz, 343 Mich App 437, 443 (2022). In Muniz, an expert witness “provided a general explanation of sexual-assault victims’ behavior following an assault” and “gave testimony regarding a wide range of many aspects of such behavior.” Id. at 445. The Court of Appeals concluded that the expert’s “testimony properly gave a general explanation of ‘the common postincident behavior of children who are victims of sexual abuse’” under Peterson. Muniz, 343 Mich App at 445. The Court rejected the defendant’s argument that an expert’s “testimony lacked reliability because it appeared to be based on his training and experience treating victims rather than academic studies.” Id. at 443. The Michigan Supreme Court “long has recognized that there has developed a body of knowledge and experience about the symptomatology of child abuse victimization” “that serves only to define the broad range of possible physical, psychological, and emotional reactions that a child victim could potentially experience.” Id. at 443 (cleaned up). The “purpose of allowing expert testimony in these kinds of cases is to give the jury a framework of possible alternatives for the behaviors, and to provide sufficient background information about each individual behavior at issue which will help the jury to dispel any popular misconception commonly associated with the demonstrated reaction.” Id. at 444 (quotation marks and citation omitted). “[I]n addition to his work in treating over 300 victims of abuse, [the expert witness] testified regarding his training, continuing education through conferences and training sessions, and research, all sources of his knowledge.” Id. at 444 (noting that a witness may be qualified “as an expert [under MRE 702] by knowledge, skill, experience, training, or education”). The Court noted that “[a]lthough defendant’s affiant may disagree with several of [the expert’s] assertions, his affidavit does not establish that the totality of [the expert’s] testimony lacked reliability or admissibility.”Id. at 445. Accordingly, the Muniz Court held that the expert appropriately “defined the parameters of his knowledge base, which were adequate to qualify him.” Id. at 445.
In People v Thorpe, 504 Mich 230, 235 (2019), the prosecutor presented “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.” The expert witness “also identified only two specific scenarios in his experience when children might lie, neither of which applie[d to the] case,” which “for all intents and purposes” constituted improper vouching because the testimony could lead to the reasonable conclusion that “there was a 0% chance [the complainant] had lied about sexual abuse.” Id. at 259. Accordingly, “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.” Id. at 235. “Because the trial turned on the jury’s assessment of [the complainant’s] credibility, the improperly admitted testimony wherein [the expert] vouched for [the complainant’s] credibility likely affected the jury’s ultimate decision.” Id. at 260.
In People v Harbison, the case consolidated with Thorpe, the Michigan Supreme Court considered “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.” Thorpe, 504 Mich at 235. The Court concluded 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.” Id. “An examining physician’s opinion is objectionable when it is solely based ‘on what the victim . . . told’ the physician.” Id. at 255, quoting People v Smith, 425 Mich 98, 109 (1986) (admission of the physician’s testimony constituted plain error affecting the defendant’s substantial rights requiring a new trial). “Such testimony is not permissible because a jury [is] in just as good a position to evaluate the victim’s testimony as the doctor.” Thorpe, 504 Mich at 255 (quotation marks and citation omitted; alteration in the original). See also People v Uribe, 508 Mich 898 (2021) (finding that the testimony of a doctor who “repeatedly testified to the ultimate issue of the case–whether the complainant was sexually abused–and this testimony lacked physical corroboration,” was “impermissible because it vouche[d] for the complainant’s credibility and veracity and invade[d] the province of the jury to determine this issue”; a “curative instruction employed by the trial court could not erase the prejudice the defendant suffered by way of this testimony,” and “the trial court abused its discretion by denying the defendant’s motion for a mistrial”).
“Harbison, . . . and the cases on which [it] relied, establish a bright-line rule that an examining physician’s opinion that a complainant was sexually abused is admissible only if supported by physical findings,” because “[i]n the absence of physical findings, it necessarily follows that the physician’s opinion is solely based on [their] assessment of the complainant’s statements.” People v Del Cid (On Remand), 331 Mich App 532, 547 (2020). The Del Cid Court concluded that a diagnosis of “’[p]ossible pediatric sexual abuse’ is not significantly different from ‘probable pediatric sexual abuse’ [as was at issue in Harbison] in terms of the physician’s endorsement of the accusation. In both instances, the examining physician speaks to the likelihood of abuse in the absence of any physical evidence and couches it in terms of a medical diagnosis.” Del Cid (On Remand), 331 Mich App at 547. Furthermore, even if “possible sexual abuse” was considered to be “significantly different from ‘probable sexual abuse,’” it would be precluded under MRE 403 because “[t]estimony that the ‘diagnosis’ is merely ‘possible’ has very little probative value while, for the reasons discussed in Harbison, such testimony is highly prejudicial.” Del Cid (On Remand), 331 Mich App at 548, 550 (“a ‘diagnosis’ of sexual abuse absent physical findings is a term of art and has no probative value at trial”; admission of expert testimony regarding “possible pediatric sexual abuse” absent corroborating physical evidence constituted error that “affected defendant’s substantial rights”).
In Sattler-VanWagoner, an expert witness impermissibly vouched for the victim’s “credibility by testifying that false reports were ‘statistically very rare in cases like this’ for two reasons.” Sattler-VanWagoner, ___ Mich App at ___. “First, although [the expert] did not provide a specific percentage value, her comment on the statistical rarity of a false report was sufficiently similar to bring her testimony within the scope of Thorpe’s prohibitions.” Id. at ___ (reasoning there was no “meaningful difference between saying that the likelihood a complainant will lie is 2% to 4% and saying that it is ‘statistically very rare’”). “Second, the addition of the phrase ‘in cases like this’ comes dangerously close to commenting directly on [the victim’s] truthfulness or veracity in this case.” Id. at ___ (“That phrase directly linked the statistical likelihood of a false report to the testimony in this case.”).
Expert testimony may be admissible regarding patterns of behavior exhibited by adult sex offenders to desensitize child victims. People v Ackerman, 257 Mich App 434, 442 (2003). In Ackerman, before committing acts of sexual misconduct, the defendant repeatedly allowed his pants to fall down, exposing his genitals, to several girls at a youth community center. Id. at 441. The Court stated that this behavior “supported an inference that defendant’s actions were part of a system of desensitizing girls to sexual misconduct.” Id. In addition, the Court affirmed the trial court’s decision to allow an expert to testify as to the common practices of child molesters, which often includes desensitizing the victim. Id. at 443-444. The Court stated:
“We believe that most of our citizen-jurors lack direct knowledge of or experience with the typical forms of conduct engaged in by adults who sexually abuse children. Accordingly, the trial court reasonably concluded that testimony about the typical patterns of behavior exhibited by child sexual abuse offenders would aid the jury.” Ackerman, 257 Mich App at 445.
C.Shaken Baby Syndrome (Abusive Head Trauma)
Abusive head trauma (also commonly known as shaken baby syndrome) is “the ‘constellations of injuries that are caused by the directed application of force to an infant or young child, resulting in physical injury to the head and/or its contents.’” People v McFarlane, 325 Mich App 507, 520 (2018), quoting The American Academy of Pediatrics (2009). Within the medical community, there is a debate about the reliability of a diagnosis “that a particular child’s injuries were the result of inflicted trauma.” McFarlane, 325 Mich App at 521. However, “courts continue to allow experts to offer the diagnosis on the ground that it is accepted and reliable.” Id. In these cases, “a physician may properly offer an opinion that, when the medical evidence is considered along with the child’s history, the child’s injuries were inflicted rather than caused by accident or disease because a jury is unlikely to be able to assess the medical evidence.” Id. at 522. “Expressing an opinion that the trauma was inflicted or not accidental does not impermissibly invade the province of the jury because the expert is not expressing an opinion regarding the defendant’s guilt or whether the defendant had a culpable state of mind, which the expert may not do.” Id. at 523. “Instead, the expert is interpreting the medical evidence and offering the opinion that the trauma was caused by human agency, and the jury is free to reject that opinion on the basis of the evidence adduced at trial, including a contrary opinion by another expert.” Id.
“Notwithstanding the propriety of a diagnosis of inflicted trauma, . . . in cases involving allegations of abuse, an expert goes too far when he or she diagnoses the injury as ‘abusive head trauma’ or opines that the inflicted trauma amounted to child abuse.” McFarlane, 325 Mich App at 523. “The ordinary understanding of the term ‘abuse’ – as opposed to neglect or carelessness – implies a level of willfulness and moral culpability that implicates the defendant’s intent or knowledge when performing the act that caused the head trauma. An expert may not offer an opinion on the intent or criminal responsibility of the accused.” Id. at 523-526 (citation omitted) (holding that it was plain error to allow the expert witness to use the phrase “abusive head trauma” and to agree that the injuries amounted to “child abuse,” but that the error did not effect the outcome of the trial given the “totality of the evidence [to support a finding] that defendant became angry with [the victim], violently shook her out of frustration, and caused the injuries at issue”).
“[T]he diagnostic term ‘abusive head trauma’ . . . invade[s] the province of the jury when used in cases involving allegations of abuse, even if it is medically possible to determine that a particular injury was nonaccidentally inflicted and the term constitutes a formal diagnosis recognized in the medical community. Therefore, use of the term automatically constitutes plain error.” People v Ackley (On Remand), 336 Mich App 586, 592 (2021). However, it is not improper under McFarlane “for any of the prosecution’s experts to testify that, in their opinion, [a victim] did not sustain [their] injuries by accident or self-directed misadventure. Rather, the experts [are] prohibited from characterizing the nonaccidental way in which those injuries were sustained as ‘abuse’ or ‘abusive.’” Ackley, 336 Mich App at 595. In Ackley, “the use of the term ‘abuse’ by some of the prosecution’s experts [did not make] any difference to the outcome in light of the other overwhelming evidence of defendant’s guilt.” Id. at 603. “The overwhelming majority of the prosecution’s expert witnesses provided concrete, permissible testimony to the effect that [the victim] sustained drastic injuries that either could not have been accidental or self-inflicted, or were highly unlikely to have been accidental of self-inflicted. Not all of them used the word ‘abuse,’ or at least did not do so on direct examination.” Id. at 602. “The term ‘abusive head trauma’ was raised for the first time during [the expert’s] testimony by the defense on cross-examination,” and “although [the expert] used the word ‘trauma’ during direct examination, she did not use any variation on the word ‘abuse’ at all during direct examination. To the extent there was any error regarding the word ‘abuse’ during [the expert’s] testimony, any such error was attributable to defendant and was not grounds for relief.” Id. at 598 n 5.
For detailed information about expert witness testimony in cases involving Shaken Baby Syndrome, see Section 4.1(A)(3), People v Hawkins, ___ Mich App ___, ___ (2023), and People v Lemons, ___ Mich ___ (2024).
Committee Tip:
As can be seen with other areas of expertise, issues arise not so much as to the qualifications of the expert but rather as to the breadth of the opinion rendered. Care should be taken not to conflate the two.
“[T]he term ‘medical torture’ is a medical diagnosis reserved for only severe cases in which the victim is subjected to at least two instances of physical harm and two instances of psychological harm, but does not suggest any amount of intentionality.” People v Alexander, ___ Mich App ___, ___ (2024). In Alexander, the prosecution’s expert witness, “an expert in general pediatrics and child abuse pediatrics, shared that she made a medical, not legal diagnosis of ‘medical torture’ after having the opportunity to review the minor child’s medical records, conduct a physical examination, and interview [the minor child].” Id. at ___. Notably, the prosecution’s expert witness “did not suggest that defendant acted knowingly or intentionally when she testified that the children were diagnosed with medical torture or addressed any element of the crime charged.” Id. at ___. “While [the expert witness] opined that [the minor child’s] injuries indicated that the minor child was exposed to at least two distinct physical assaults and at least two psychological maltreatments, warranting a diagnosis of ‘medical torture,’ she [explained that] her diagnosis was a consequence of her review of the medical records admitted in evidence, which included photographs of the ligature marks on [the minor child’s] extremities and an x-ray of the minor child’s ankles.” Id. at ___. “Thus, even without the employment of terminology ‘medical torture,’ [the expert witness] could have properly testified about the extent of [the minor child’s] injuries, the nonaccidental nature of the minor child’s injuries, his repeated exposure to physical assault and psychological harm, and the nature of [the minor child’s] statements during his examination.” Id. at ___.
“Where it is possible to draw a medical diagnosis based on a physical examination, as opposed to a complainant’s self-reporting, an expert is fully permitted to testify that, in their opinion, a particular injury was not accidentally self-inflicted.” Id. at ___ (cleaned up). Accordingly, “even if the trial court plainly erred by allowing [the expert witness] to use the label ‘medical torture,’ it [was] unlikely that the error affected the outcome of the trial considering the evidence presented.” Id. at ___ (noting that the trial court properly instructed the jury that it could consider the expert’s testimony as to why she reached her conclusions but not as evidence that the events actually happened).