4.7Expert Testimony in Domestic Violence Cases

A brief discussion on expert testimony is contained in this section. For a more comprehensive discussion, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 3.

A.Admissibility

MRE 702 provides the standard for admissibility of expert testimony:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”

After a court determines “that expert testimony will assist the trier of fact and that a witness is qualified to give the expert testimony,” and if all the parties consent, the court may allow a qualified expert witness “to be sworn and testify at trial by video communication equipment that permits all the individuals appearing or participating to hear and speak to each other in the court, chambers, or other suitable place.” MCL 600.2164a(1). The party wishing to present expert testimony by video communication equipment must file a motion at least seven days before the date set for trial, unless good cause is shown to waive that requirement. MCL 600.2164a(2). The party “initiat[ing] the use of video communication equipment shall pay the cost for its use unless the court otherwise directs.” MCL 600.2164a(3). “A verbatim record of the testimony shall be taken in the same manner as for other testimony.” MCL 600.2164a(1).

If the court determines that the expert testimony meets the preliminary tests in MRE 702, it must next determine whether the probative value of the expert testimony is substantially outweighed by the danger of unfair prejudice. See MRE 403. However, on request, the trial judge may decide that a limiting instruction is an appropriate alternative to excluding the evidence. People v Christel, 449 Mich 578, 587 (1995) (expert testimony regarding battered women syndrome was not admissible where it was “irrelevant and not helpful in explaining any fact in issue”).

Opinions and diagnoses may be admissible under MRE 803(6).¹

B.Factual Basis for Opinion

MRE 703 governs the bases of an expert’s opinion testimony:

“An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. The facts or data must be in evidence—or, in the court’s discretion, be admitted in evidence later.” 

MRE 703 “permits ‘an expert’s opinion only if that opinion is based exclusively on evidence that has been introduced into evidence in some way other than through the expert’s hearsay testimony.’” People v Fackelman, 489 Mich 515, 534 (2011), quoting 468 Mich xcv, xcvi (staff comment to the 2003 amendment of MRE 703). “Thus, a party must establish that facts or data used to form the expert’s opinion are admissible at trial.” People v Alexander, ___ Mich App ___, ___ (2024).

In Alexander, the Court held that the trial court did not err by allowing the medical expert to testify regarding her “medical torture” diagnosis of two of the defendant’s three children. Id. at ___. The Court noted, “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 ___ (quotation marks and citation omitted). “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). “To the extent that [a medical expert] relied on hearsay [such as a forensic interview report] to formulate a diagnosis, and no hearsay exception applied, an expert is allowed to recount and rely on hearsay if it was used as a basis to form an opinion.” Id. at ___.

C.Court-Appointed Expert

“On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations.” MRE 706(a). The court may appoint an expert agreed on by the parties or an expert selected by the court. Id.

The court may appoint an expert only if the expert consents to act as an expert witness. MRE 706(a). The court must inform an appointed expert of the expert’s duties, either in writing (a copy of which must be filed with the court clerk) or orally at a conference where all the parties are able to participate. MRE 706(b).

The appointed expert witness:

“(1) must advise the parties of any findings the expert makes;

(2) may be deposed by any party;

(3) may be called to testify by the court or any party; and

(4) may be cross-examined by any party, including the party that called the expert.” MRE 706(b).

D.Expert Testimony on Battered Spouse/Woman Syndrome²

“[An] expert [on battered spouse syndrome] may, when appropriate, explain the generalities or characteristics of the syndrome.” People v Christel, 449 Mich 578, 591 (1995). “[H]owever, ‘the admissibility of syndrome evidence is limited to a description of the uniqueness of a specific behavior brought out at trial.’” Id. at 591. The Michigan Supreme Court stated that it did “not adopt the battered spouse syndrome . . . .” Id. However, it went on to state that it “will permit testimony regarding specific behavior where relevant and helpful to the factfinder.” Id. These two things—helpfulness and relevancy—are threshold determinations every trial court must make. Id. at 592. In addition, the Court placed several limitations on battered spouse syndrome evidence: “the expert cannot opine that [the] complainant was a battered [spouse], may not testify that [the] defendant was a batterer or that he [or she] is guilty of the crime, and cannot comment on whether [the] complainant was being truthful.” Id. See, e.g., People v Skippergosh, ___ Mich App ___, ___ (2024) (holding that the expert need not be familiar with the facts of the case because “such expert testimony only is admissible to ‘explain the generalities or characteristics of the syndrome’”), quoting Christel, 449 Mich at 591.

1.Exculpating the Accused

Expert testimony regarding the battered spouse syndrome may be admissible for purposes of exculpating a defendant claiming self-defense when it is relevant and helpful to the jury–that is, when it “will give the trier of fact a ‘better understanding of the evidence or assist in determining a fact in issue.’” People v Wilson (Geraldine), 194 Mich App 599, 604-605 (1992). In Wilson (Geraldine), 194 Mich App at 601, 605, limited expert testimony regarding the battered spouse syndrome was admissible where “the defendant[-wife] admit[ted to] shooting [her husband] while he slept, but claim[ed] she acted in self-defense following forty-eight hours of abuse and death threats and years of battery.” Specifically, the Court held:

“We conclude that in cases such as this one [(where the defendant is claiming self defense under the battered spouse syndrome after admitting to shooting her husband while he slept),] expert testimony regarding the [battered spouse syndrome] will give the trier of fact a ‘better understanding of the evidence or assist in determining a fact in issue.’

Having determined the introduction of expert testimony regarding the [battered spouse syndrome] generally may be relevant and helpful to the jury, we must now address the scope of its admissibility. . . .We look to our [Michigan] Supreme Court’s decision in People v Beckley, [434 Mich 691 (1990) (discussing sexual abuse accommodation syndrome)], for guidance. In Beckley, the Court addressed the admissibility of expert testimony regarding the sexual abuse accommodation syndrome. Given the nature of ‘syndrome’ evidence, we find the reasoning contained in Beckley applicable to testimony regarding the [battered spouse syndrome].

* * *

We believe the same limitations [as the Court set out in Beckley] should apply to experts who testify about the [battered spouse syndrome]. As with the child abuse syndrome, the [battered spouse syndrome] expert is an expert with regard to the syndrome and not the particular defendant. Thus, the expert is qualified only to render an opinion regarding the ‘syndrome’ and the symptoms that manifest it, not whether the individual defendant suffers from the syndrome or acted pursuant to it.

We therefore affirm that portion of the trial court’s interlocutory order permitting the introduction of expert testimony regarding a description of the general syndrome and that certain behavior of the defendant already in evidence is characteristic of battered spouse victims generally, but reverse that portion of the order permitting testimony regarding whether the defendant suffers from the syndrome and whether the defendant’s act was the result of the syndrome. Further, as ordered by the trial court and consistent with Beckley, the expert may not testify that the allegations of battery are in fact truthful, this being an issue of credibility for the jury.” Wilson (Geraldine), 194 Mich App at 604-605.

2.Credibility of the Complainant

“[E]xpert testimony regarding the battered woman syndrome is admissible only when it is relevant and helpful to the jury in evaluating a complainant’s credibility and the expert witness is properly qualified.” Christel, 449 Mich at 579-589. In Christel, 449 Mich at 597, expert testimony regarding the battered woman syndrome was not admissible as it related to the complainant’s credibility where “[the] defendant never denied that some abuse occurred,” and “[the] complainant [] consistently maintained that the relationship ended [a month before the assault] and there [was] no evidence that [the] complainant hid or minimized, delayed reporting, or recanted the abuse . . . .”³ Specifically, the Court held:

“Generally, battered woman syndrome testimony is relevant and helpful when needed to explain a complainant’s actions,^[4] such as prolonged endurance of physical abuse accompanied by attempts at hiding or minimizing the abuse, delays in reporting the abuse, or recanting allegations of abuse. If relevant and helpful, testimony regarding specific behavior is permissible. However, the expert may not opine whether the complainant is a battered woman, may not testify that [the] defendant was a batterer or guilty of the instant charge, and may not comment on the complainant’s truthfulness. Moreover, the trial court, when appropriate, may preclude expert testimony when the probative value of such testimony is substantially outweighed by the danger of unfair prejudice.

In this case, the expert testimony was arguably relevant and helpful in understanding [the] complainant’s actions in tolerating physical abuse over a period of years. Moreover, it may have been relevant in explaining why [the] complainant did not report similar incidents earlier. On the other hand, its relevance did not reach the level found in other battered women cases that have considered this issue. [The] [c]omplainant did not remain in the relationship until the date of the assault and try to hide or deny the abuse, did not delay reporting this incident, and did not later retract the claim of abuse. Instead, [the] complainant testified that the relationship ended one month before the assault, explained that she immediately reported the sexual assault, and has consistently maintained that the abuse occurred. Although the testimony was arguably relevant and helpful, on these facts, we are persuaded that a more direct connection and factual premise is necessary, and, hence, we deem the trial court’s decision to admit the testimony to be error.”⁵ Christel, 449 Mich at 580-581.

Although the trial court erroneously admitted the expert’s testimony, the Michigan Supreme Court found in Christel, 449 Mich at 581, “the error harmless in light of the limited nature of the testimony and the other physical and testimonial evidence of abuse[, where] [t]he expert merely explained the characteristics of a battered woman[, and] [the expert] neither testified that [the] complainant’s behavior was consistent with such traits, nor opined about [the] complainant's truthfulness or whether [the] complainant was a battered woman.” “[In] [c]ombining the physical evidence of sexual abuse with [the] complainant’s testimony, [the Michigan Supreme Court] [was] persuaded that the limited nature of the expert testimony could not have affected the jury’s decision to convict[, and] . . . reverse[d] the decision of the Court of Appeals with respect to admission of this expert testimony, but affirm[ed] the result because of the harmless nature of the testimony.” Id. at 581.

See, e.g., People v Skippergosh, ___ Mich App ___, ___ (2024), where the Court held that the trial court did not abuse its discretion in admitting expert testimony regarding intimate partner violence to explain to the jury the complainant’s behavior following the assaults. Specifically, the facts that the complainant hid from police when they arrived to investigate after one assault in 2020 and denied having been assaulted in 2021, contrary to multiple witnesses’ testimony, demonstrated that “she had a pattern of concealing and denying domestic violence by [defendant].” Id. at ___. Expert testimony may be appropriate “‘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 ___, quoting Christel, 449 Mich at 592.

See also People v Daoust, 228 Mich App 1, 11 (1998), overruled in part on other grounds by People v Miller, 482 Mich 540 (2008),⁶ where the trial court properly found the “[expert’s] testimony [on battered women syndrome] [as being] relevant and helpful to explain why [the complainant] might have initially sought to deflect the blame from her daughter’s injuries away from [the] defendant[-boyfriend] while knowing he was responsible.”⁷