Chapter 4: Expert Witnesses and Scientific Evidence
4.1Expert Testimony1
1.Rule
“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.” MRE 702.
“In contrast to MCL 600.2169 [applicable to expert testimony in a medical malpractice action2], . . . nothing in MRE 702 requires that a medical expert be board certified in a particular specialty, . . . or that a medical expert have devoted a majority of his or her practice to a given specialty to be qualified to offer expert testimony.” People v McKewen, 326 Mich App 342, 350 (2018) (holding the trial court did not abuse its discretion in determining that a board-certified cardiothoracic and general trauma surgeon who treated the victim was qualified to testify that the victim had been stabbed by a knife despite defendant’s objection that the witness was not qualified “because he did not possess the same qualifications as, for example, a medical examiner”). “To require some form of certification in a specific subfield of a larger profession in order to serve as an expert witness would cause not only absurd results, but mandate the creation of new certifications any time a novel or rare issue were before a trial court.” People v Brown, 326 Mich App 185, 196-197 (2019) (a certified nurse who had not yet received her sexual assault nurse examiner certification was still considered competent as a medical professional).
2.Trial Court’s Gatekeeper Role
To effectuate its gatekeeper role, a court must focus its inquiry “solely on principles and methodology, not the conclusions that they generate.” Daubert v Merrell Dow Pharm, Inc, 509 US 579, 595 (1993). The Daubert test “requires the trial judge to make a preliminary assessment of whether the proposed expert’s testimony is scientifically valid and whether the reasoning and methodology upon which the expert bases their testimony can be applied to the facts in the case.” Danhoff v Fahim, ___ Mich ___, ___ (2024) (citation omitted). “This preliminary assessment is known as the trial court’s gatekeeping function.” Id. at ___ (noting that “the gatekeeping function performed by trial courts applies to all expert testimony, rather than to only a limited subset of scientific expert testimony”). “Although the Daubert gatekeeping function applies to all experts, the list of factors in Daubert is flexible and nonexhaustive: Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case.” Danhoff, ___ Mich at ___ (quotation marks and citation omitted). “The specific inquiry is flexible based on the circumstances of each case but may include a determination that the expert’s theory or the techniques used to generate that theory—but not the expert’s conclusions—can be tested, has been subjected to peer review and publication, has a known or potential error rate, or is generally accepted among the scientific community.” Id. at ___. “In other words, before expert testimony may be admitted at trial, the plaintiff must prove that the expert’s testimony is relevant and reliable.” Id. at ___.
“The evolution of the federal expert witness doctrine is important for understanding Michigan’s approach.” Id. at ___. Effective January 1, 2004, Michigan adopted the Daubert test by amending MRE 702. See Gilbert v DaimlerChrysler Corp, 470 Mich 749, 781-782 (2004), which states:
“MRE 702 has . . . been amended explicitly to incorporate Daubert’s standards of reliability. But this modification of MRE 702 changes only the factors that a court may consider in determining whether expert opinion evidence is admissible. It has not altered the court’s fundamental duty of ensuring that all expert opinion testimony—regardless of whether the testimony is based on ‘novel’ science—is reliable.
* * *
“[T]he court’s gatekeeper role is the same under Davis-Frye[3] and Daubert. Regardless of which test the court applies, the court may admit evidence only once it ensures, pursuant to MRE 702, that expert testimony meets that rule’s standard of reliability. In other words, both tests require courts to exclude junk science; Daubert simply allows courts to consider more than just ‘general acceptance’ in determining whether expert testimony must be excluded.”
See also MCL 600.2955, which codifies the Daubert test “[i]n an action for the death of a person or for injury to a person or property[.]” “MCL 600.2955 presents a nonexhaustive list of seven factors that a trial court shall consider when it determines whether an expert’s opinions are reliable.” Danhoff, ___ Mich at ___. “[T]hose seven factors are:
(a) Whether the opinion and its basis have been subjected to scientific testing and replication.
(b) Whether the opinion and its basis have been subjected to peer review publication.
(c) The existence and maintenance of generally accepted standards governing the application and interpretation of a methodology or technique and whether the opinion and its basis are consistent with those standards.
(d) The known or potential error rate of the opinion and its basis.
(e) The degree to which the opinion and its basis are generally accepted within the relevant expert community. As used in this subdivision, ‘relevant expert community’ means individuals who are knowledgeable in the field of study and are gainfully employed applying that knowledge on the free market.
(f) Whether the basis for the opinion is reliable and whether experts in that field would rely on the same basis to reach the type of opinion being proffered.
(g) Whether the opinion or methodology is relied upon by experts outside of the context of litigation.” Danhoff, ___ Mich at ___, quoting MCL 600.2955(1).
MCL 600.2955(1) only requires the court to consider the seven factors enumerated there; it does not require each factor to favor the proffered testimony in order to be admissible. Chapin v A & L Parts, Inc, 274 Mich App 122, 137 (2007). In addition, “all the factors in MCL 600.2955 may not be relevant in every case.” Elher v Misra, 499 Mich 11, 26 (2016) (holding that “the scientific testing and replication factor [in MCL 600.2955(1)(a) did] not fit the type of [standard-of-care] opinion at issue in [the] case,” and that although “the circuit court abused its discretion by relying on this factor, . . . this [did] not render the circuit court’s ultimate decision [to exclude an expert’s opinion testimony] an abuse of discretion” where the other arguments for admitting the testimony did not sufficiently establish the expert’s reliability).
“MRE 702 ‘requires trial judges to act as gatekeepers who must exclude unreliable expert testimony.’” Lenawee Co v Wagley, 301 Mich App 134, 162 (2013), quoting Staff Comment to 2004 Amendment of MRE 702. “The purpose of a Daubert hearing is to filter out unreliable expert evidence.” Lenawee Co, 301 Mich App at 162. See also Elher, 499 Mich at 24 (noting that while the plaintiff’s expert “was qualified to testify as an expert based on his extensive experience,” the question was whether the expert’s opinion “was sufficiently reliable under the principles articulated in MRE 702 and . . . MCL 600.2955) (emphasis added). Indeed, “[u]nder MRE 702, it is generally not sufficient to simply point to an expert’s experience and background to argue that the expert’s opinion is reliable and, therefore, admissible.” Danhoff, ___ Mich at ___ n 11 (quotation marks and citation omitted).
Expert testimony based on non-scientific knowledge. “While Daubert hearings are required when dealing with expert scientific opinions in an effort to ensure the reliability of the foundation for the opinion, where non-scientific expert testimony is involved, the Daubert factors may be pertinent, or the relevant reliability concerns may focus upon personal knowledge or experience.” Lenawee Co, 301 Mich App at 163 (alteration, quotation marks and citations omitted). In Lenawee Co, 301 Mich App at 163, a realtor’s videotaped deposition testimony concerning the marketability of the defendants’ property was played at trial over the plaintiff’s objections and requests for a Daubert hearing. However, because the realtor’s testimony was not “scientific” expert testimony, and instead constituted “other specialized knowledge,” the trial court did not abuse its discretion in declining to conduct a Daubert hearing before admitting the testimony. Lenawee Co, 301 Mich App at 163-164. “[T]he Daubert factors may or may not be relevant in assessing reliability, depending on the nature of the issue, the expert’s expertise, and the subject of the expert’s testimony. Elher, 499 Mich at 24-25. “[I]n some cases, the relevant reliability concerns may focus upon personal knowledge or experience”; however, the Daubert factors may be helpful in determining reliability even if all the factors do not necessarily apply. Elher, 499 Mich at 25 (quotation marks and citation omitted). How to determine reliability is within the trial court’s discretion. Id.
“MRE 702 does not require that an expert be certified by the state in the particular area in which the expert is qualified. Rather, an expert may be qualified on the basis of ‘knowledge, skill, experience, training, or education[.]’” People v Brown, 326 Mich App 185, 196 (2019), quoting MRE 702. In Brown, the trial court properly qualified a certified nurse as an expert witness in a first-degree criminal sexual conduct trial even though she had not yet received her state certification as a sexual assault nurse examiner. Brown, 326 Mich App at 196. “[The nurse’s] testimony regarding the lack of injury in most sexual assault cases . . . was properly admitted because it was based on [her] specialized knowledge and assisted the jury in understanding the evidence in [the] case.” Id. at 197.
“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.” People v Alexander, ___ Mich App ___, ___ (2024) (cleaned up). In Alexander, the prosecution’s expert witness “testified that her education, training, and experience provided her with knowledge concerning how to evaluate children, how to perform medical exams, how to identify injuries, how to diagnose, how to teach, how to conduct research all related to child abuse and neglect.” Id. at ___ (quotation marks omitted). The expert “further testified that prior to performing her evaluations of [the minor child], she examined the minor child’s medical records, which included a number of photographs of [the minor child’s] injuries and the results of [the minor child’s] x-ray report, in addition to information provided by the forensic interviewer.” Id. at ___.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 ___ (holding that “the contested terminology did not have the potential to conflate the expert’s medical diagnosis with any legal conclusion concerning defendant’s legal responsibility”). “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 ___. 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 occurred).
An expert witness’s failure to identify any medical or scientific literature in support of his or her testimony does not necessarily suggest that the expert’s opinion is unreliable or inadmissible. People v Unger, 278 Mich App 210, 220 (2008). In Unger, the Court noted, “it is obvious that not every particular factual circumstance can be the subject of peer-reviewed writing. There are necessarily novel cases that raise unique facts and have not been previously discussed in the body of medical texts and journals.” Id. However, “a lack of supporting literature is an important factor in determining the admissibility of expert witness testimony.” Edry v Adelman, 486 Mich 634, 640 (2010) (holding that “peer-reviewed, published literature is not always a necessary or sufficient method of meeting the requirements of MRE 702”). In Edry, the plaintiff’s expert witness’s opinion was not based on reliable principles or methods, was contradicted by both the defendant’s expert witness and published literature that was admitted and acknowledged as authoritative by the plaintiff’s expert, and the plaintiff failed to admit any literature that supported her expert’s testimony. Id. at 640. The Michigan Supreme Court concluded that “the lack of supporting literature, combined with the lack of any other form of support for [the expert’s] opinion, render[ed] his opinion unreliable and inadmissible under MRE 702.” Edry, 486 Mich at 641.
“Neither MRE 702 nor MCL 600.2955 requires a trial court to exclude the testimony of a plaintiff’s expert on the basis of the plaintiff’s failure to support their expert’s claims with published literature.” Danhoff v Fahim, ___ Mich ___, ___ (2024) (“Although published literature may be an important factor in determining reliability, it is not a dispositive factor . . . .”). In Danhoff, the plaintiff’s expert “opined that because a bowel perforation like plaintiff experienced is so rare and so likely to have been caused by a medical instrument in an area it should not have been that it constitutes a breach of the standard of care.” Id. at ___. “The trial court determined that [plaintiff’s expert’s] opinion was unreliable almost exclusively because he did not cite supportive literature without considering whether (1) [plaintiff’s expert] could have produced such supportive literature, (2) defendant produced any literature or other evidence to contradict [plaintiff’s expert’s] opinion, and (3) [plaintiff’s expert’s] opinion was otherwise sufficiently reliable under the factors provided by statute and MRE 702.” Danhoff, ___ Mich at ___.
The Danhoff Court held that “scientific literature is not always required to support an expert’s standard-of-care opinion, but that scientific literature is one of the factors that a trial court should consider when determining whether the opinion is reliable.” Danhoff, ___ Mich at ___ (stating that “peer-reviewed, published literature is not always a necessary or sufficient method of meeting the requirements of MRE 702, thus establishing reliability”) (quotation marks and citation omitted). “[A]n expert in a medical malpractice lawsuit [may be able to] reliably support their opinion on the standard of care [even] if the adverse event is so rare that published, peer-reviewed medical literature on the subject may not exist.” Id. at ___. “[E]ach case will present unique circumstances for a trial court to determine whether the expert’s opinion is reliable.” Id. at ___. “In some cases, a lack of supportive literature may be fatal to a plaintiff’s expert’s reliability.” Id. at ___. “In others, a plaintiff’s expert may demonstrate reliability without supportive literature, especially where a complication is rare and there is a dearth of supportive literature available to support the opinion.” Id. at ___ (holding that “the guidepost for admissibility is reliability, and trial courts must consider MRE 702 as well as the statutory reliability factors presented in MCL 600.2955 when determining if an expert is reliable”).
“Treating a lack of supportive medical literature as dispositive that the expert’s opinions are unreliable and, therefore, inadmissible, creates a conundrum.” Danhoff, ___ Mich at ___. “If the failure to produce medical literature means that a plaintiff’s otherwise reliable expert opinions are inadmissible, patients who experience complications so rare that they are not studied by the academic community or discussed in peer-reviewed publications would not be able to offer admissible expert testimony when seeking legal recourse for their injuries.” Id. at ___. “The avoidance of such a result is why MCL 600.2955 has several factors and does not merely specify that reliability is a product of peer-reviewed medical literature.” Danhoff, ___ Mich at ___ (“It is also why we have consistently noted that peer-reviewed medical literature is not always necessary or sufficient to meet reliability requirements.”) (quotation marks and citations omitted). Ultimately, in Danhoff, the Michigan Supreme Court held that “[t]he lower courts erred by concluding that [plaintiff’s expert’s] opinions were unreliable because they were unsupported by medical literature.” Id. at ___ (“The trial court abused its discretion by inadequately assessing [plaintiff’s expert’s] reliability as a standard-of-care expert without appropriately analyzing MRE 702 or the statutory reliability factors of MCL 600.2955.”).
“Careful vetting of all aspects of expert testimony is especially important when an expert provides testimony about causation.” Infinity Physical Therapy, LLC v Meemic Ins Co, ___ Mich App ___, ___ (2025) (quotation marks and citation omitted). “MRE 702 does not limit medical expertise strictly to medical doctors and, under the Public Health Code, the making of a limited diagnosis is within a chiropractor’s scope of practice.” Infinity Physical Therapy, ___ Mich App at ___ (“A chiropractor is generally qualified to testify about matters within the scope of his profession and practice.”). “Specifically, a chiropractor can evaluate a patient and make a diagnosis of a condition or disorder ‘of the human musculoskeletal and nervous systems as they relate to subluxations, misalignments, and joint dysfunctions.’” Infinity Physical Therapy, ___ Mich App at ___, quoting MCL 333.16401(1)(e)(i). “Within this authorization to evaluate and diagnose a patient for certain physical maladies, a chiropractor can develop an opinion of the underlying cause of the problem.” Infinity Physical Therapy, ___ Mich App at ___ (“[A] chiropractor’s diagnosis can be used to detect and correct the listed conditions and recommend patients seek treatment from other health professionals.”).
In Infinity Physical Therapy, “the trial court abused its discretion with its broad limitation of [a chiropractor’s] testimony.” Id. at ___. Although “[t]he trial court properly determined that [a chiropractor] could not offer expert opinion about a diagnosis made by a physician,” the Court of Appeals held that “it is proper for a chiropractor, with the proper foundation, to testify about a diagnosis within his or her practice as set forth in MCL 333.16401(1)(e)(i).” Infinity Physical Therapy, ___ Mich App at ___. “Similarly, a chiropractor, with the proper evaluation of a patient, may testify about the cause of that condition or disorder to the extent that such cause can be reliably linked to a condition or disorder within the scope of MCL 333.16401(1)(e)(i).” Infinity Physical Therapy, ___ Mich App at ___ (instructing that, “[o]n remand, the trial court may still conclude that [the chiropractor’s] testimony does not meet the standard of MRE 702, but it may not do so for the sole reason that [the chiropractor] would be offering testimony on causation as a chiropractor”). “So long as a proper foundation is laid, and the testimony is limited in scope as required under the Public Health Code, there is no absolute legal bar to a chiropractor providing expert testimony on causation for purposes of a motor-vehicle collision.” Infinity Physical Therapy, ___ Mich App at ___. “In contrast, the trial court did not err by prohibiting [a physical therapist] from offering expert testimony on causation.” Infinity Physical Therapy, ___ Mich App at ___. “The Public Health Code’s provision of practice for a physical therapist specifies that the “‘[p]ractice of physical therapy does not include the identification of underlying medical problems or etiologies, establishment of medical diagnoses, or the prescribing of treatment.’” Infinity Physical Therapy, ___ Mich App at ___, quoting MCL 333.17801(1)(d) (alteration in original). Therefore, “the trial court properly limited [the physical therapist’s] testimony to the services he provided and the reasons why he provided the treatment.” Infinity Physical Therapy, ___ Mich App at ___.
“[D]epending on the particular facts at issue in a matter and the expert’s specific expertise, a biomechanical engineer may testify, if not making a medical diagnosis, regarding the impact of the forces at play and a resulting injury.” People v Hawkins, ___ Mich App ___, ___ (2023) (“declin[ing] to articulate any bright-line rule prohibiting or allowing biomechanical engineers from providing testimony related to medical causation”). In Hawkins, defendant retained a biomechanical engineer “as an expert witness to counter the prosecution’s evidence that the [8-month-old] decedent’s injuries were caused by multiple blows or incidents of trauma.” Id. at ___. The parties agreed that the biomechanical engineer “could testify regarding the general forces at play” and “how a typical person might be injured therefrom.” Id. at ___. Defendant also made it clear that the expert would “not offer a medical opinion or diagnosis evaluating the decedent’s cause of death[.]” Id. at ___. The Court of Appeals concluded that the proposed testimony — that the decedent’s injuries “could have been caused from a single impact or blow” — was within the expert’s area of expertise because it was “based on the expert’s biomechanical expertise and the forces at play[.]” Id. at ___. The Hawkins Court determined that the trial court abused its discretion by precluding the biomechanical engineer’s testimony under MRE 702 because the substance of his testimony was (1) “scientific, technical, and not common knowledge to the average person,” (2) “probative of a fact at issue at trial, whether the decedent’s injuries resulted from a single blow or multiple blows,” and (3) he was “qualified to testify about how forces and motion impact the body . . . by nature of his knowledge, experience, training, and education on the subject.” Hawkins, ___ Mich App at ___ (noting “[t]he facts that [the expert was] not a medical doctor and lack[ed] specific medical training and education are weaknesses or gaps in his testimony to be explored on cross-examination”).
“A court considering whether to admit expert testimony under MRE 702 acts as a gatekeeper and has a fundamental duty to ensure that the proffered expert testimony is both relevant and reliable.” People v Lemons, ___ Mich ___, ___ (2024) (quotation marks and citation omitted). “The job of the courts is to . . . ensur[e] that expert testimony employs the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Lemons, ___ Mich at ___ (quotation marks and citation omitted). In Lemons, the “trial court stepped beyond its role as gatekeeper of relevant and reliable information” when it excluded the defendant’s biochemical engineer’s testimony because “biomechanical studies are not presently able to replicate the exact number and degree of injury to the brain that would occur as a result of Shaken Baby Syndrome [SBS].” Lemons, ___ Mich at ___ (observing that defendant’s biomechanical engineer testified that ”there [were] ‘good reasons,’ grounded in biomechanical science, to conclude that shaking is insufficient to produce the accelerations necessary to produce injuries typically associated with SBS without also causing significant injuries to the neck”).
“Biomechanics is the study of forces acting on and generated within the body and of the effects of these forces on the tissues, fluids, or materials used for diagnosis, treatment, or research purposes,” and “SBS is a multidisciplinary diagnosis based on the theory that vigorously shaking an infant creates great rotational acceleration and deceleration forces that result in a constellation of symptoms that may not manifest externally.” Id. at __ (cleaned up). ”[T]he SBS hypothesis is inherently grounded in biomechanical principles.” Id. at ___ (quotation marks and citation omitted). However, “just as a biomechanical engineer may not testify about medical causation outside of their expertise, the medical community is not the judge of the validity of biomechanical research, nor is it the sole relevant expert community with respect to SBS.” Id. at ___ (“find[ing] the position that biomechanics—the study of forces acting on and generated within the human body—is divorceable from a diagnosis of shaken baby syndrome to be untenable”).
“As it relates to reliability, the focus of the MRE 702 inquiry must be solely on principles and methodology, not on the conclusions that they generate.” Lemons, ___ Mich at ___ (quotation marks and citation omitted). “That said, it is not enough that the expert’s opinion rests on data viewed as legitimate in the context of a particular area of expertise.” Id. at ___ (quotation marks and citation omitted). “Instead, the proponent must also show that any opinion based on those data expresses conclusions reached through reliable principles and methodology.” Id. at ___ (cleaned up). “The test of admissibility is not whether a particular scientific opinion has the best foundation, or even whether the opinion is supported by the best methodology or unassailable research.” Id. at ___ (quotation marks and citation omitted). “A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Id. at ___ (quotation marks and citation omitted).
“When evaluating the reliability of a scientific theory or technique, courts consider certain factors, including but not limited to whether the theory has been or can be tested, whether it has been published and peer-reviewed, its level of general acceptance, and its rate of error if known.” Id. at ___ (cleaned up). “In the context of expert evidence, relevance is sometimes referred to as ‘fit’: The trial court must ensure the expert’s testimony is sufficiently tied to the facts of the case, so that it ‘fits’ the dispute and will assist the trier of fact.” Id. at ___ (quotation marks and citation omitted). “‘Fit’ is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes.” Id. at ___ (quotation marks and citation omitted).
“In the realm of the biomechanical evidence underlying SBS, there can never be a perfectly replicated model of a shaken infant for obvious ethical reasons.” Id. at ___ (stating that “there will always be at least some gap between the data and the conclusions reached”). “This cannot and does not prohibit a qualified expert from testifying, on the basis of reliable principles and methodologies, about what can be extrapolated from various imperfect modeling about how an infant’s body reacts to shaking.” Id. at ___. “Any limitations in the conclusions that can be drawn from biomechanical studies as applied to the facts of this case go to its weight, not admissibility.” Id. at ___. “There is nothing inherently problematic about presenting to a jury expert testimony in biomechanics.” Id. at ___.
The Lemons Court held that the defendant’s expert witness’s “testimony satisfied the requirements of MRE 702” because “[h]e was a qualified expert in the field of biomechanical engineering,” “[h]is testimony regarding the biomechanical mechanism of SBS would assist the trier of fact in ascertaining a fact at issue—whether [defendant’s infant daughter] died from injuries caused by abusive shaking,” and “[b]iomechanical engineering is a legitimate field of scientific study and [defendant’s expert’s] testimony was based on sufficient facts or data and was the product of reliable principles and methods.” Lemons, ___ Mich at ___ (quotation marks and citation omitted) (noting that “conclusions and methodology are not entirely distinct from one another”).
Furthermore, the expert’s “testimony was not ‘far removed’ or missing a connecting link between data, methodology, and conclusion. Rather, it was based on studies specifically designed to test the effects of abusive shaking on infants, utilized various models to test the hypotheses, and specifically concluded that shaking without serious injury to the neck could not produce symptoms associated with SBS.” Id. at ___. “[I]t would be unreasonable to conclude that the subject of scientific testimony must be ‘known’ to a certainty because arguably, there are no certainties in science.” Id. at ___ (quotation marks and citation omitted) (Therefore, the Lemons Court held that “although clearly not universally accepted, [defendant’s expert’s] opinion [was] certainly objective, rational, and based on sound and trustworthy scientific literature.” Id. at ___ (cleaned up).”The opinion “‘fit’ the facts in dispute . . . and would assist the trier of fact in determining whether the prosecution could prove beyond a reasonable doubt that [defendant’s daughter’s] cause of death was SBS.” Id. at ___ (citation omitted) (holding that “the trial court abused its discretion by misapplying MRE 702 and ordering that biomechanical evidence was inadmissible”).
The trial court “did not abuse its discretion by concluding that [a medical expert]’s background and experience were not sufficient to render his opinion reliable,” and in excluding the expert’s testimony under MRE 702, “when [the expert] admitted that his opinion [that the defendant-physician breached the standard of care] was based on his own beliefs, there was no evidence that his opinion was generally accepted within the relevant expert community, there was no peer-reviewed medical literature supporting his opinion, plaintiff failed to provide any other support for [the expert]’s opinion, and defendants submitted contradictory peer-reviewed literature.” Elher v Misra, 499 Mich 11, 27-28 (2016) (noting that “[w]hile peer-reviewed, published literature is not always necessary or sufficient to meet the requirements of MRE 702, the lack of supporting literature, combined with the lack of any other form of support, rendered [the expert]’s opinion unreliable and inadmissible under MRE 702”).
In People v Dobek, 274 Mich App 58, 92-93 (2007), the defendant was not allowed to use an expert witness who, through psychological testing and interviewing, planned to testify that the defendant did not demonstrate the typical characteristics of a sex offender. The expert witness admitted that psychological testing “cannot establish with any degree of certainty that a person is or is not a sex offender.” Id. at 95. The Court of Appeals compared the danger of admitting evidence of sex offender profiling to that of admitting the results of a favorable polygraph test. Id. at 97. According to the Court, the expert’s testimony “was neither sufficiently scientifically reliable nor supported by sufficient scientific data,” as required by MRE 702. Dobek, 274 Mich App at 94-95. In addition, “the proffered evidence would not assist the trier of fact to understand the evidence or determine a fact in issue; rather, any arguable probative value attached to the evidence would be substantially outweighed by the danger of unfair prejudice to the prosecution, confusion of the issues, or misleading the jury.” Id. at 95.4
“[B]ecause the claim of a false confession is beyond the common knowledge of the ordinary person, expert testimony about this phenomenon is admissible under MRE 702 when it meets the other requirements of MRE 702.” People v Kowalski, 492 Mich 106, 129 (2012) (plurality opinion). See also People v Warner, ___ Mich ___, ___ (2024) (“Kowalski did not amount to a categorical ban on all false-confession testimony”). An expert “may not comment on the truthfulness of a defendant’s confession, vouch for the veracity of a defendant recanting a confession, or give an opinion as to whether defendant was telling the truth when he made the statements to the police.” Id. (quotation marks, alterations, and citations omitted). In Kowalski, two experts proposed to offer testimony based on research and literature about the phenomenon of false confessions. Id. at 111-112, 132. One of the experts also proposed to testify about the defendant’s psychological profile. Id. at 112, 135. The Court of Appeals held that although testimony about the phenomenon of false confessions was the proper subject for an expert witness, the proposed testimony in this case was too unreliable to be admitted because the sources were prone to inaccuracy and had not been subjected to scientific peer-review. Id. at 133. However, the trial court erred by failing to separately consider the proposed testimony regarding the defendant’s psychological profile, which was based on data from tests that the expert himself performed on the defendant. Id. at 135-136. In addition, the trial court also failed to adequately analyze MRE 403 before excluding the psychological profile testimony. Kowalski, 492 Mich at 136-137. The Court of Appeals explained that the testimony “can provide guidance to a fact-finder regarding behavior that would seem counterintuitive to a juror” and therefore it could have probative value even in the absence of the testimony about false-confession literature. Id. at 137. The case was remanded to the trial court to determine the admissibility of the evidence under both MRE 702 and MRE 403. Kowalski, 492 Mich at 138.
Expert testimony concerning Y-STR DNA analysis, which “involves testing DNA only on the Y-chromosome,” is “properly admitted under MRE 702.” People v Wood 307 Mich App 485, 509, 514-515 (2014), vacated in part on other grounds 498 Mich 914 (2015)5 (noting that the prosecution provided “[a]bundant evidence illustrat[ing] that the . . . technique ‘has been or can be tested,’ . . . that standards exist to govern the performance of the technique, [and] . . . that many publications and peer reviews have scrutinized the soundness of the . . . technique, as well as the statistical analysis methods and the database used by analysts”) (citations omitted). Similarly, STRmix probabilistic genotype testing, which is “a more recent form of DNA testing and a relatively new method of evaluating complex mixtures,” is properly admitted under MRE 702. People v Muhammad, 326 Mich App 40, 47, 57 (2018).6
During the defendant’s trial for reckless driving where the defendant claimed he tried to stop at a stop sign but his brakes did not respond, the trial court did not abuse its discretion by allowing the prosecution to present expert testimony from a mechanic that the vehicle’s break line broke during the accident and the brakes should have worked prior to the accident. People v Carll, 322 Mich App 690, 698, 699 (2018). “An expert witness may offer an opinion only if he or she has specialized knowledge that will assist the trier of fact to understand the evidence,” and “[t]he determinative inquiry in qualifying an expert is the nature and extent of knowledge and actual experience[.]” Id. at 699-700 (holding that the mechanic was qualified as an expert where “[h]e had a college certification in automotive technology, a state certification in brakes, 15 years‘ experience inspecting and repairing breaks,” worked on brakes weekly, and had repaired hundreds of brakes) (quotation marks and citation omitted). Further the mechanic’s methodology satisfied the standard of reliability under MRE 702 where he testified to personally examining the vehicle, explained the data necessary to form opinions about the condition of the brake lines, “explained the mechanism of hydraulic brakes and the fact that defendant’s truck had separate lines for front and rear breaks, thereby ruling out the possibility that a single brake line failure would affect both front and rear brakes,” testified to his experience with rusting brakes and brake lines to explain that the broken brake line was not damaged by rust or another natural cause, and concluded that the most likely reason for the broken brake line was the crash itself. Carll, 322 Mich App at 701 (concluding that the expert “had sufficient data to form an opinion, based his testimony on reliable principles and methods, and applied those methods reliably to the facts of the case”).
Drug Recognition Expert (DRE) testimony is not automatically admissible, and the trial court must still make a determination whether a DRE officer is qualified to offer expert testimony. See People v Bowden, 344 Mich App 171, 175 n 2 (2022) (noting that even if a person’s “certification designates him to be a drug recognition ‘expert,’ that label has no bearing on whether he may properly testify as an expert for purposes of MRE 702”). See Section 4.7 for additional information on DRE testimony.
“In a civil action, the court may, in its discretion, craft a procedure for the presentation of all expert testimony to assist the jurors in performing their duties. Such procedures may include, but are not limited to:
(1) Scheduling the presentation of the parties’ expert witnesses sequentially; or
(2) allowing the opposing experts to be present during the other’s testimony and to aid counsel in formulating questions to be asked of the testifying expert on cross-examination.” MCR 2.513(G).
Committee Tip:
Sequential or near-contemporaneous scheduling of competing expert witnesses may have its best usage in domestic or civil bench trials.
C.Testifying Via Video Communication Equipment7
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).
“[T]he use of videoconferencing technology shall not be used in bench or jury trials, or any civil proceeding wherein the testimony of witnesses or presentation of evidence may occur, except in the discretion of the court after all parties have had notice and opportunity to be heard on the use of videoconferencing technology.” MCR 2.408(A)(2).
Similarly, the court must “consider constitutional requirements, in addition to the factors contained in MCR 2.407,” “[w]hen determining whether to utilize videoconferencing technology” in criminal proceedings. MCR 6.006(A)(3).
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 initiating “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). See also M Crim JI 5.16, which addresses witness testimony introduced via video rather than in-person:
“The next witness, [identify witness], will testify by videoconferencing technology. You are to judge the witness’s testimony by the same standards as any other witness, and you should give the witness’s testimony the same consideration you would have given it had the witness testified in person. If you cannot hear something that is said or if you have any difficulty observing the witness on the videoconferencing screen, please raise your hand immediately.”
No more than three experts on the same issue are allowed to testify on either side unless the court, in exercising its discretion, permits more. MCL 600.2164(2). MCL 600.2164(2) is not “applicable to witnesses testifying to the established facts, or deductions of science, nor to any other specific facts, but only to witnesses testifying to matters or opinion.” MCL 600.2164(3).
1.Fees Taxable as Costs
MCL 600.2164(1) states in relevant part:
“No expert witness shall be paid, or receive as compensation in any given case for his services as such, a sum in excess of the ordinary witness fees provided by law, unless the court before whom such witness is to appear, or has appeared, awards a larger sum, which sum may be taxed as a part of the taxable costs in the case.”
“Instead ‘is to appear’ applies to witnesses who could have been called to testify at some point, either by deposition or through trial testimony. The phrase ‘is to appear’ does not refer to the situation . . . in which a case proceeded to trial and verdict but the witness gave neither deposition nor trial testimony, notwithstanding language in other cases which could be read as authorizing witness fees under such circumstances.” Carlsen Estate v Southwestern Mich Emergency Servs, PC, 338 Mich App 678, 704 (2021).
“MCL 600.2164(1) authorizes a trial court to award expert witness fees as an element of taxable costs.” Rickwalt v Richfield Lakes Corp, 246 Mich App 450, 466-467 (2001) (the trial court did not abuse its discretion in ordering a lower amount for expert witness fees than requested by the plaintiff because it “considered and weighed the reasonableness of plaintiff’s request”). See also Nostrant v Chez Ami, Inc, 207 Mich App 334, 336, 342 (1994), where the trial court abused its discretion when it completely refused to award expert witness fees to the defendant, awarding only ordinary witness fees, after determining that the witness was in fact an expert.
“Under MCL 600.2164(3), an expert must testify as to ‘matters of opinion’ and not to ‘established facts’ to be entitled to compensation in excess of that for an ordinary witness.” Int’l Outdoor, Inc v SS Mitx, LLC, ___ Mich App ___, ___ (2023). In Int’l Outdoor, the witness “testified about his investigation of the computer devices at issue and informed the court about the observations and reports that he made in his investigation,” and “[t]he trial court qualified him as an expert in computer forensics, and he offered opinion testimony about his observations throughout the hearing.” Id. at ___. Accordingly, the trial court had authority to grant the request to tax the expert’s fees as a cost. Id. at ___. However, a “trial court may only tax those fees related to testifying as an expert witness or preparing to testify as an expert witness; the court may not tax as a cost those fees arising from ‘conferences with counsel for purposes such as educating counsel about expert appraisals, strategy sessions, and critical assessment of the opposing party’s position.’” Id. at ___ (citation omitted). “Additionally, the trial court may assess the reasonableness of an expert’s fees and adjust them accordingly.” Id. at ___. Accordingly, the trial court erred by allowing the expert’s fees to be taxed for charges that “included time and expenses arguably not compensable as costs, such as hardware that he purchased as part of his investigation and telephone conversations apparently for the purpose of educating counsel.” Id. at ___. “Moreover, the record [did] not demonstrate that the trial court evaluated the reasonableness of [the expert’s] fees.” Id. at ___ (“vacat[ing] the trial court’s order to the extent that it taxed costs for [the expert’s] fees and remand[ing] to the trial court to permit it to assess the requested fees.”)
Contingency fees are prohibited for expert witnesses in medical malpractice cases. MCL 600.2169(4).
Even where an expert witness does not testify, the prevailing party may still recover expert witness fees for the cost of preparing the witness. Peterson v Fertel, 283 Mich App 232, 241 (2009). See also Home-Owners Ins Co v Andriacchi, 320 Mich App 52, 73-74 (2017) (holding costs for expert witness fees are properly awarded “under MCL 600.2164 where a case is dismissed before that expert can testify at trial,” and where “[t]he costs sought by [the plaintiff] in connection with the expert’s time [are] necessary for the expert to develop [their] opinion regarding the cause of the damages”).
2.Amount to Pay Expert Witness in Criminal Cases
A defendant may qualify for public funds for an expert even if they have retained counsel. See People v Ceasor, 507 Mich 884 (2021) (finding “counsel performed deficiently” by failing to make such a request and that defendant demonstrated prejudice because there was no victim who could provide an account, no eyewitnesses, no corroborative physical evidence and no apparent motive to harm, making the expert the case).
Although “focused on sentencing and . . . whether any funding for an expert, irrespective of the amount, should be authorized,” a court may still “employ and be guided by” the reasonable probability principle initially articulated in Moore v Kemp, 809 F2d 702, 712 (CA 11, 1987) and adopted by the Michigan Supreme Court in People v Kennedy, 502 Mich 206, 227 (2018), when determining the amount to pay an expert in a criminal case. See People v Williams, 328 Mich App 408, 416 (2019). By failing to provide any “substantive analysis to explain why it believed that defendant’s requested sum [of $42,650] was [highly] excessive” or “explain how it arrived at the sum of $2,500” to fund the expert witness, the trial court erred in limiting the expert witness funding. Id. at 417 (the matter was remanded for the trial court “to take into consideration the principles set forth in Kennedy in determining the amount of funds to reimburse defendant . . . so as to satisfy constitutional requirements,” while giving “[s]pecial attention . . . to the Kennedy Court’s adoption of the ‘reasonable probability’ standard articulated . . . in Moore”).
Committee Tip:
A more detailed recitation of the thought process used when selecting an amount will better insulate the ruling from reversal than a limited record.
See Section 4.1(K)(2) for information on appointing experts for indigent defendants in criminal cases.
3.Compensable Activity and Evidentiary Hearing
“An expert is not automatically entitled to compensation for all services rendered. Conferences with counsel for purposes such as educating counsel about expert appraisals, strategy sessions, and critical assessment of the opposing party’s position are not regarded as properly compensable as expert witness fees. Experts are properly compensated for court time and the time required to prepare for their testimony. In addition, the traveling expenses of witnesses may be taxed as costs, MCL 600.2405(1); MCL 600.2552(1); MCL 600.2552(5).” Carlsen Estate v Southwestern Emergency Servs, PC, 338 Mich App 678, 707 (2021) (quotation marks and citation omitted). “When the record is insufficient . . . to discern the actual hours expended for taxable costs of court time from that attributable to conference and meeting time, which would not necessarily be a taxable cost, the remedy is a remand for an evidentiary hearing to further distinguish and recalculate those hours spent on taxable versus nontaxable costs.” Carlsen Estate, 338 Mich App at 707-708 (quotation marks and citation omitted). In Carlsen Estate, invoices that stated that the expert had “discussion[s] with attorneys” were “not sufficient to allow the trial court, or [the Court of Appeals], to determine whether these discussions [were] taxable because they were for trial preparation, or [were] not taxable because they were for educating counsel about expert appraisals, strategy sessions, and critical assessment of the opposing party’s position.” Id. at 709 (quotation marks and citation omitted).
“A witness may be compensated for his or her travel expenses ‘in coming to the place of attendance and returning from the place of attendance’ for trial, but only as provided under MCL 600.2552(5).” Int’l Outdoor, Inc v SS Mitx, LLC, ___ Mich App ___, ___ (2023). “Under MCL 600.2552(5), the witness may be reimbursed a ‘per-mile rate’ equal to the rate set by the department of management and budget for state employees.” Int’l Outdoor, ___ Mich App at ___. “Mileage must be ‘estimated from the residence of the witness, if his or her residence is within this state, or from the boundary line of this state that the witness passed in coming into this state, if his or her residence is out of this state.’” Id. at ___, quoting MCL 600.2552(1). While “MCL 600.2552 does not limit reimbursement to any particular mode of travel,” the trial court erred when it allowed the full cost of an expert’s airfare to be taxed as a cost “without applying the estimated miles to the rate of reimbursement provided under MCL 600.2552(5).” Int’l Outdoor, ___ Mich App at ___ (“vacat[ing] the trial court’s order to the extent that it included this expense and remand[ing] to the trial court for amendment of the order to reflect the cost of [the expert’s] travel expense calculated under MCL 600.2552.”)
“Except as exempted by these rules, stipulation, or court order, a party must, without awaiting a discovery request, provide to the other parties[, among other things,] . . . the anticipated subject areas of expert testimony.” MCR 2.302(A)(1)(h). See MCR 2.302(A)(4) for a list of cases exempt from this initial disclosure.
Experts who are expected to testify at trial must be identified and “facts known and opinions held by experts, otherwise discoverable under the provisions of [MCR 2.302(B)(1)] and acquired or developed in anticipation of litigation or for trial,” may only be obtained as set out in MCR 2.302(B)(4)(a)-(d).
MCR 2.302(B)(4)(a) addresses interrogatories, depositions, and discovery by other means:
•Interrogatories may “require another party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter about which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” MCR 2.302(B)(4)(a)(i).
•“A party may take the deposition of a person whom the other party expects to call as an expert witness at trial. The party taking the deposition may notice that the deposition is to be taken for the purpose of discovery only and that it shall not be admissible at trial except for the purpose of impeachment, without the necessity of obtaining a protective order as set forth in MCR 2.302(C)(7).” MCR 2.302(B)(4)(a)(ii). But see MCR 2.302(B)(4)(d), which adds that “[t]he deposition may be taken at any time before trial on reasonable notice to the opposite party, and may be offered as evidence at trial as provided in MCR 2.308(A). The court need not adjourn the trial because of the unavailability of expert witnesses or their depositions.”
•“On motion, the court may order further discovery by other means[.]” MCR 2.302(B)(4)(a)(iii).
“A party may not discover the identity of and facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, except
(i) as provided in MCR 2.311 [(physical and mental examination of an individual)], or
(ii) where an order has been entered on a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” MCR 2.302(B)(4)(b).
“Subject to [MCR 2.302(B)(4)], a party may obtain discovery of documents and tangible things otherwise discoverable under [MCR 2.302(B)(1)] and prepared in anticipation of litigation or for trial by or for another party or another party’s representative (including an attorney, consultant, surety, indemnitor, insurer, or agent) only on a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” MCR 2.302(B)(3)(a). MCR 2.302(B)(3)(a) “protects drafts of any interrogatory answer required under [MCR 2.302(B)(4)(a)(i)], regardless of the form in which the draft is recorded,” and “communications between the party’s attorney and any expert witness under [MCR 2.302(B)(4)], regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert’s study or testimony;
(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.” MCR 2.302(B)(4)(e)-(f).
Unless manifest injustice would result, the court must require that the party seeking discovery of an expert pay the expert a reasonable fee for time spent in a deposition. MCR 2.302(B)(4)(c)(i). This does not include preparation time. Id. The party seeking discovery may have to pay “a fair portion of the fees and expenses reasonably incurred by the [other] party in obtaining facts and opinions from the expert.” MCR 2.302(B)(4)(c)(ii). MCR 2.302(B)(4) “does not require that the deposition testimony of the expert be used at trial before the trial court may award fees under the rule.” Carlsen Estate v Southwestern Mich Emergency Servs, PC, 338 Mich App 678, 703 (2021) (quotation marks and citation omitted).
“MCR 2.302(B)(4) applies to experts who are third parties to the litigation; such experts examine the facts from a distance, offer opinions, and have no financial stake in the outcome other than receiving a court-approved witness fee.” Spine Specialists of Mich, PC v State Farm Mut Auto Ins Co, 317 Mich App 497, 503 (2016). Accordingly, “[a]s the sole owner of [the plaintiff medical facility] and the physician who treated [a patient] on [the plaintiff’s] behalf, [the owner-physician] was obligated to provide deposition testimony” in the plaintiff’s action to recover payment for services rendered to the patient following a motor vehicle accident, and was therefore “ineligible [under MCR 2.302(B)(4)(c)(i)] to charge a fee for his deposition”; “[w]hile a party (or an employee of a party, as here) with specialized knowledge may offer an expert opinion within his or her field, the court rules do not contemplate payment to a party offering an opinion on its own behalf.” Spine Specialists, 317 Mich App at 502, 503-504 (noting that the owner-physician would “serve as [the plaintiff’s] spokesperson at trial, and [had] a vested interest in the outcome of [the] case”). Moreover, “[r]equiring payment to a party for the right to take the party’s deposition would unreasonably burden the process of trial preparation, constituting manifest injustice” within the meaning of MCR 2.302(B)(4)(c). Spine Specialists, 317 Mich App at 503, 505. See Section 4.1(E) for discussion of fees taxable as costs.
“MCR 2.302(B)(4) applies only to facts known or opinions held by an expert that were acquired or developed in anticipation of litigation—not to any and all information possessed by an expert.” Micheli v Mich Auto Ins Placement Facility, 340 Mich App 360, 369 (2022) (quotation marks and citation omitted). “MCR 2.302(B)(4) was inapplicable to plaintiff’s request” that a doctor produce records from a three-year period “showing [the doctor’s] earnings for performing medicolegal work and showing the number of patient examinations [the doctor] performed,” because the records were “kept in the ordinary course of business,” and were not “acquired or developed in anticipation of litigation or trial.” Micheli, 340 Mich App at 371.
Upon request, a party must provide all other parties with the names and addresses of any expert witnesses that may be called at trial. MCR 6.201(A)(1).8 Alternatively, the party may provide the other party with the witness’s name and make the witness available for interview. Id. “[T]he witness list may be amended without leave of the court no later than 28 days before trial[.]” Id.
Upon request, a party must provide all other parties with “the curriculum vitae of an expert the party may call at trial and either a report by the expert or a written description of the substance of the proposed testimony of the expert, the expert’s opinion, and the underlying basis of that opinion[.]” MCR 6.201(A)(3). However, failure to do so does not necessarily require the court to preclude the expert from testifying. See People v Rose, 289 Mich App 499, 525-526 (2010). In Rose, the trial court permitted an expert to testify even though the prosecutor failed to comply with the court’s discovery order to supply the opposing party with the expert’s curriculum vitae or summary of his proposed testimony. Id. The Court of Appeals affirmed the trial court’s decision because the expert’s testimony was limited in nature (the expert did not comment on the substantive facts in the case), the defendant waited until the day before trial to raise the issue (notice of the expert was given months before trial), and no evidence of prejudice to the defendant existed. Id. at 526.
Committee Tip:
A court may choose from a number of remedies. Explore the possibility of allowing a short delay, reordering the presentation of the witnesses, giving an opportunity for counsel to interview the witness before the witness testifies, or other measures short of preclusion.
“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.
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) (quotation marks and citation omitted). In Fackelman, the testifying experts relied on a report generated by a non-testifying expert who had observed and diagnosed the defendant shortly after the incident giving rise to the case. Id. at 518, 521-522. The report contained facts and data, in addition to opinion evidence (the defendant’s diagnosis), which was deemed inadmissible under the federal and state constitutions, as well as MRE 703. Fackelman, 489 Mich at 535. The Michigan Supreme Court concluded that “because the diagnosis was inadmissible, . . . the report should have been redacted before it was admitted into evidence, and the jury should have been instructed that the proper and limited purpose of the report was to allow them to consider the facts and data on which the testifying experts based their opinions.” Id.
MRE 703 provides that the evidence upon which expert testimony is based can be admitted either before or after the expert testifies. Shivers v Covenant Healthcare Sys, 339 Mich App 369, 375 (2021). In Shivers, the trial court granted the defendant’s motion in limine to preclude a witness’s testimony because the defendant argued it would be based on the inadmissible hearsay statements of a doctor. Id. The Michigan Court of Appeals held that the trial court’s decision was premature because the plaintiff stated that she would call the doctor to testify at trial, so the facts and data upon which the witness based her opinion would be in evidence. Id.
MRE 703 establishes that the type of evidence that must be admitted as the basis for an expert’s opinion are those “facts or data that are particular to that case.” People v Yost, 278 Mich App 341, 390 (2008). In Yost, the defendant was accused of killing her daughter by administering a lethal dose of Imipramine, a medication used to control bedwetting and anxiety. Id. at 344-345. The trial court precluded the defendant’s expert witness from testifying about the pharmacological characteristics of Imipramine (its half-life, post mortem redistribution, the volume of distribution, and the level of Imipramine that would be considered lethal) because the testimony was based on an outside source and constituted inadmissible hearsay. Id. at 388-389. The Court of Appeals reversed this decision and explained that some of the facts or data particular to the Yost case included the child’s weight, the dosage of Imipramine prescribed, and the actual level of Imipramine in the child’s blood. However, the pharmacological characteristics of Imipramine were “constants in every case involving Imipramine.” Id. at 390. Because the pharmacological characteristics of Imipramine were not particular to the Yost case, “it was not necessary to have the data in evidence before [the expert] could utilize them in rendering an opinion.” Id. at 390.
Where “the facts and data underlying [an expert’s] testimony were fundamentally presented in testimony, documents, and photographs admitted during [a] five-day trial,” the trial court did not err when it permitted the expert to rely on hearsay to formulate a diagnosis where no hearsay exception applied. People v Alexander, ___ Mich App ___, ___ (2024) (holding that when “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”). In Alexander, the prosecution’s expert witness “testified that prior to performing her evaluations of [the minor child], she examined the minor child’s medical records, which included a number of photographs of [the minor child’s] injuries and the results of [the minor child’s] x-ray report, in addition to information provided by the forensic interviewer.” Id. at ___. The expert witness also interviewed a codefendant and the defendant’s minor children. 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 ___. Accordingly, the expert witness “was permitted to advance testimony concerning the alleged abuse of [the minor child] as her opinion was made on the basis of admitted evidence detailing physical findings and [the minor child’s] medical history, in addition to the minor child’s statements.” Id. at ___. “It is well-settled that an expert witness may rely on hearsay evidence when the witness formulates an opinion.” Id. at ___ (quotation marks and citation omitted).
On cross-examination, it is proper to elicit the number of times an expert witness has testified in court, or has been involved in particular types of cases. Wilson v Stilwill, 411 Mich 587, 599-600 (1981). “A pattern of testifying as an expert witness for a particular category of plaintiffs or defendants may suggest bias. However, such testimony is only minimally probative of bias and should be carefully scrutinized by the trial court.” Id. at 601.
Repeated references to expert witnesses as “hired guns” may require a new trial. See Kern v St. Luke’s Hosp Ass’n of Saginaw, 404 Mich 339, 354 (1978) (when defense counsel “continuously raised the groundless charge, by direct attack and innuendo, that the ‘bought’ testimony of plaintiffs’ out-of-state expert witnesses was collusive and untrue,” it was so prejudicial that it required a new trial). However, contrast with Wilson, 411 Mich at 605 (an indirect statement implying an expert witness was a “professional witness” did not require new trial where plaintiff’s counsel responded to the statement in rebuttal argument and the jury was instructed that statements in closing arguments are not evidence); Wolak v Walczak, 125 Mich App 271, 275 (1983) (where there was no “harrassment or belittlement of plaintiffs’ expert,” the court’s allowance of a single statement characterizing an expert witness as a “professional witness” did not require a new trial). See also People v Unger, 278 Mich App 210, 236-237 (2008) (“[t]he prosecution was free to argue that defense counsel had ‘bought’ [the expert’s] testimony by paying him a substantial amount of money”; “counsel is always free to argue from the evidence presented at trial that an expert witness had a financial motive to testify”).
“To the extent called to an expert witness’s attention on cross-examination, a statement is admissible for impeachment purposes only if:
•the statement is contained in a published treatise, periodical, or pamphlet;
•the publication is on a subject of history, medicine, or other science or art; and
•the publication is established as a reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice.” MRE 707.
I.Contested Diagnoses and Terminology
Medical expert testimony invades the province of the jury by citing accepted medical terminology that may be misconstrued by laypersons as imparting emotionally-charged or legally conclusory connotations. People v McFarlane, 325 Mich App 507, 517-527 (2018). In McFarlane, the Court of Appeals “determined that the trial court plainly erred when it permitted the prosecution’s expert witness, a child abuse pediatrician, to use the diagnostic terms “’abusive head trauma’ and ‘definite pediatric child abuse,’ in her trial testimony, considering the defendant was charged with first-degree child abuse.” People v Alexander, ___ Mich App ___, ___ (2024). See McFarlane, 325 Mich App at 523-527. “Ultimately, the contested diagnoses implicated a level of willfulness and culpability that was solely within the purview of the jury to determine, as the prosecution’s expert witness expressly connected said diagnoses to the defendant’s state of mind.” Alexander, ___ Mich App at ___ (noting that the McFarlane Court clarified that “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”) (quotation marks and citation omitted). “However, the McFarlane expert witness exceeded those bounds by providing an opinion that essentially implicated the defendant’s intent in perpetrating the alleged acts of abuse.” Alexander, ___ Mich App at ___, citing McFarlane, 325 Mich App at 523.
“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.” People v Alexander, ___ Mich App ___, ___ (2024) (cleaned up). In Alexander, the prosecution’s expert witness “testified that her education, training, and experience provided her with knowledge concerning how to evaluate children, how to perform medical exams, how to identify injuries, how to diagnose, how to teach, how to conduct research all related to child abuse and neglect.” Id. at ___ (quotation marks omitted). The expert “further testified that prior to performing her evaluations of [the minor child], she examined the minor child’s medical records, which included a number of photographs of [the minor child’s] injuries and the results of [the minor child’s] x-ray report, in addition to information provided by the forensic interviewer.” Id. at ___.” Unlike McFarlane, “[t]he contested terminology did not have the potential to conflate the expert’s medical diagnosis with any legal conclusion concerning defendant’s legal responsibility.” Id. at ___. 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 ___. “[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.” 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 ___. 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).
“[T]he function of an expert witness is to supply expert testimony. This testimony includes opinion evidence, when a proper foundation is laid, and opinion evidence may embrace ultimate issues of fact. However, the opinion of an expert may not extend to the creation of new legal definitions and standards and to legal conclusions.” Carson Fischer Potts and Hyman v Hyman, 220 Mich App 116, 122 (1996). Further, an expert witness is not permitted to tell the jury how to decide the case. People v Drossart, 99 Mich App 66, 79 (1980). “[A] witness is prohibited from opining on the issue of a party’s negligence or nonnegligence, capacity or noncapacity to execute a will or deed, simple versus gross negligence, the criminal responsibility of an accused, or [the accused’s] guilt or innocence.” Id. at 79-80. “[W]here a jury is as capable as anyone else of reaching a conclusion on certain facts, it is error to permit a witness to give his own opinion or interpretation of the facts because it invades the province of the jury.” Id. at 80. “An expert witness also may not give testimony regarding a question of law, because it is the exclusive responsibility of the trial court to find and interpret the law.” Carson Fischer Potts and Hyman, 220 Mich App at 123.
K.Report9
Upon request in a criminal case, a party must provide “either a report by the expert or a written description of the substance of the proposed testimony of the expert, the expert’s opinion, and the underlying basis of that opinion[.]” MCR 6.201(A)(3).10 This is similar to the rule in civil cases, MCR 2.302(B)(4)(a)(i) (use of interrogatories to gather information on expert testimony, facts and opinions, and summary of grounds for opinions).
1.Court-Appointed Expert to Assist Court
“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). While the “court may appoint any expert that the parties agree on and any of its own choosing[, it] may only appoint someone who consents to act.” Id. MRE 706 does not apply to a request for an appointed expert to consult with and assist a litigant. In re Yarbrough Minors, 314 Mich App 111, 121, 121 n 7 (2016). “The court must inform the expert of the expert’s duties.” MRE 706(b). “The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate.” Id. The expert must inform the parties of any findings made. MRE 706(b)(1). The expert may be deposed, called to testify by the court or any party, and may be cross-examined by any party, including the party that called the expert. MRE 706(b)(2)-MRE 706(b)(4).
2.Court-Appointed Expert Indigent Defendants in Criminal Cases
When considering an indigent criminal defendant’s request for expert assistance, trial courts must apply the due process analysis set forth in Ake v Oklahoma, 470 US 68 (1985). People v Kennedy, 502 Mich 206, 210, 228 (2018). “When an indigent defendant requests funds for an expert witness, they must show something more than a mere possibility of assistance from a requested expert.” People v Warner, ___ Mich ___, ___ (2024) (cleaned up). “Specifically, a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.” Id. at ___ (quotation marks and citation omitted). “Ake instructs that due process requires, for example, that when a defendant’s sanity will be a significant factor at trial, the State must assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. at ___ (cleaned up). “In addition, the defendant should inform the court why the particular expert is necessary.” Id. (quotation marks and citation omitted). “Though the defendant is not expected to provide the court with a detailed analysis of the assistance an appointed expert might provide, a defendant’s bare assertion that an expert would be beneficial cannot, without more, entitle him or her to an expert.” Id. at ___ (cleaned up). However, a “defendant is not required to show that he is unable to present his defense without expert assistance.” Id. at ___.
Ake is the controlling law in this area, and analysis under MCL 775.15 (as frequently occurred previously) is improper because “MCL 775.15, by its express terms, does not provide for the appointment of expert witnesses. It merely provides a means for subpoenaing certain witnesses and for paying their cost of attending trial.” Kennedy, 502 Mich at 222. The Kennedy opinion overrules People v Jacobsen, 448 Mich 639 (1995) and People v Tanner, 469 Mich 437 (2003), to the extent those cases did not apply Ake and held (or suggested) that MCL 775.15 governs a request by an indigent defendant for the appointment of an expert at government expense. Kennedy, 502 Mich at 225.
“[F]undamental fairness entitles indigent defendants to an adequate opportunity to present their claims fairly within the adversary system[.] To implement this principle, [the United States Supreme Court has] focused on identifying the basic tools of an adequate defense or appeal, and [has] required that such tools be provided to those defendants who cannot afford to pay for them.” Ake, 470 US at 77 (quotation marks and citations omitted; emphasis added). Thus, the Kennedy analysis extends to “post judgment motions seeking an expert and discovery to aid in [an] appeal.” People v Ulp, 504 Mich 964, 964-965 (2019) (the trial court erred in denying the defendant’s postjudgment motions when it concluded Kennedy applied only if “‘defendant made a sufficient showing . . . that denial of expert assistance would result in a fundamentally unfair trial’”).
“[I]n a trial in which the veracity of a confession is central, it is fundamentally unfair when an indigent defendant is deprived of an adequate opportunity to present their claims fairly by being denied funding to support necessary expert assistance on false confessions.” Warner, ___ Mich at ___ (quotation marks and citation omitted). In Warner, the defendant signed an incriminating statement during a series of interrogations in which law enforcement officers employed various techniques to obtain a confession; the defendant was ultimately convicted of first-degree criminal sexual conduct for sexually assaulting his stepdaughter. Id. at ___. Before his second trial,11 the “defendant moved for funds to retain an expert witness in false confessions.” Id. at ___ (“Because a large part of the prosecution’s case was based on defendant’s confession, defendant explained that he needed the expert in false confessions to support his defense.”). “Defendant’s motion identified two potential experts [who] could testify about the attributes associated with false confessions and interviewer bias.” Id. at ___. “Specifically, [one expert] would testify about police interrogation techniques and false confessions, while [the other expert] would perform psychological testing on defendant and testify about the psychology of whether the attributes of a false confession are present.” Id. at ___ (quotation marks omitted).
The Michigan Supreme Court held that “there was a reasonable probability that defendant’s proposed expert could have assisted the jury in understanding whether the conditions for a false confession were present and, if so, how those conditions affected the interrogations.” Id. at ___. The Court in Warner noted that “without [defendant’s] expert, due process was not served, because the veracity of defendant’s confession was a significant factor at trial.” Id. at ___ (quotation marks and citation omitted). The Warner Court reasoned that “[t]he proposed expert would at least have identified circumstances and techniques tending to result in false confessions, which the jury could have found applicable to defendant’s confession.” Id. at ___. The Court observed that the defendant’s “confession was the only corroborating evidence for [his stepdaughter’s] allegations and was central to the prosecution’s case.” Id. at ___ (stating that “the elements of a false confession are beyond the understanding of the average juror”) (quotation marks and citation omitted). Accordingly, “defendant showed a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.” Id. at ___ (quotation marks and citation omitted) (“The question is not whether the jury could have convicted defendant had his confession been sufficiently impeached, but rather whether, viewing the evidence presented at trial as a whole, there is a sufficient probability that the trial would be rendered ‘fundamentally unfair.’”). Therefore, the trial court abused its discretion when it “denied an indigent defendant the opportunity to fund an expert witness whose testimony would be integral to fundamental issues of the trial.” Id. at ___ (remanding to trial court to determine whether defendant was indigent when he filed his motion).
“[W]hen a defendant requests an expert to present an affirmative defense, a defendant must make the additional showing of a substantial basis for the defense.” People v Propp, 508 Mich 374, 381 (2021). In Propp, the defendant was charged with open murder and requested an expert to assist him in advancing the defense that the victim’s death was an accident. Id. at 377. The Michigan Supreme Court held that the Michigan Court of Appeals erred by requiring the defendant to show a substantial basis for the defense because the defense of accident was not an affirmative defense; rather, it negated the element of intent for the charge of first-degree premeditated murder, which the prosecutor had the burden to prove. Id. at 382.
On remand, the Court of Appeals held that “the trial court did not commit any error entitling defendant to a new trial by denying his motion to appoint a defense expert on the subject of erotic asphyxiation” because “no additional expert testimony was necessary to explain such a simple concept to the jury—i.e., that defendant was claiming that he did not intend to kill the victim and that he must have done so accidentally while restricting her airflow (at her request) during a consensual sexual encounter.” People v Propp (On Remand), 340 Mich App 652, 661 (2022).12 Accordingly, the Court of Appeals determined that “it is not reasonably probable that the denial of this expert assistance resulted in a fundamentally unfair trial.” Id. at 660.
A defendant’s constitutional right to present a defense was not violated when the trial court failed to appoint an expert who would aid a legal defense of insanity where “the register of actions [did] not indicate that defendant ever filed a motion for expert assistance.” People v Lafey, ___ Mich App ___, ___ (2024). “Without such a motion directing the trial court’s attention to the matter, defendant necessarily failed to carry his initial burden of showing the trial court that there exist[ed] a reasonable probability that an expert [was] constitutionally required.” Id. at ___ (cleaned up). “Second, defendant on appeal fail[ed] to submit an offer of proof indicating that an expert would have aided an insanity defense.” Id. at ___. Third, defendant failed “to establish that he was indigent for the purposes of a court-appointed expert.” Id. at ___ (noting that defendant represented in his Standard 4 brief that his mother “‘offered to pay for this outside expert’”). “If defendant was not indigent, he would not have been entitled to a court-appointed expert and this issue would be moot.” Id. at ___ (“Simply put, defendant has failed to carry his burden of establishing entitlement to relief.”).
See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 9, for additional information regarding the appointment of experts for indigent defendants in criminal cases. See also MIDC Standards 3 and 5.
3.Court-Appointed Expert in Parental Termination Proceedings
In a parental termination proceeding, whether there is a reasonable probability that an expert would assist the defense is not the correct standard for determining a respondent’s entitlement to expert assistance funding. In re Yarbrough Minors, 314 Mich App 111, 114 (2016). “[W]hen considering a request for expert witness funding” in a parental termination proceeding, “the proper inquiry weighs the interests at stake under the due process framework established in Mathews v Eldridge, [424 US 319, 335 (1976),]” which “examine[s] the private and governmental interests at stake, the extent to which the procedures otherwise available to [the parent] serve[] their interests, and the burden on the state of providing expert funding.” Yarbrough, 314 Mich App at 114, 134, 137 (“highlight[ing] the inherently fact-specific inquiry required by the Eldridge due process framework”). In Yarbrough, “the private interests strongly favored funding for an expert witness or consultant” where “[t]he science swirling around cases involving ‘shaken baby syndrome’ and other forms of child abuse [was] ‘highly contested,’” and “the nature of the child welfare proceedings [did not] adequately safeguard[] respondents’ interests, absent funding for an independent expert,” where “only one side possesse[d] the funds necessary to pay an expert witness, [and] the opposing side [was required to] rely on cross-examination to attack the expert’s testimony.” Yarbrough, 314 Mich App at 135-136 (citation omitted). Further, the burden of providing approximately $2,500 as requested by the respondents did not “outweigh[] the interests of [the] indigent [respondents], who otherwise lacked the financial resources to retain expert medical consultation.” Id. at 137 (holding that the trial court abused its discretion by failing to conduct a due process analysis under Eldridge and by failing to authorize reasonable funding for an expert witness).13
4.Improper Delegation of Duties
It is improper for the court to “delegate its functions of making conclusions of law, reviewing motions, requiring the production of evidence, issuing subpoenas, conducting and regulating miscellaneous proceedings, examining documents and witnesses, and preparing final findings of fact” to an appointed expert witness. Carson Fischer Potts and Hyman, 220 Mich App 116, 121 (1996). In Carson Fischer Potts and Hyman, the trial court appointed an expert to “‘make findings of fact, conclusions of law and a final recommendation and proposed judgment’” for the court. Id. at 118. The Michigan Court of Appeals concluded it was error to “delegate specific judicial functions to an ‘expert witness.’ It is within the peculiar province of the judiciary to adjudicate upon and protect the rights and interests of the citizens, and to construe and apply the laws.” Id. at 121.
“A party must move to strike an expert within a reasonable time after learning the expert’s [sic: identity] and basic qualifications. The failure to timely do so results in forfeiture of the issue.” Cox v Flint Bd of Hosp Mgrs (On Remand), 243 Mich App 72, 80 (2000) (citation omitted), rev’d on other grounds 467 Mich 1 (2002).14
N.Disqualification Based on Conflict of Interest
“Cases granting disqualification are rare because courts are generally reluctant to disqualify expert witnesses, especially those who possess useful specialized knowledge.” Teutsch Estate v Van De Ven, 336 Mich App 604, 609 (2021) (quotation marks, alteration, and citation omitted). In evaluating whether to disqualify an expert witness on the basis of conflict of interest where “side-switching” is not an issue, courts should consider “whether the attorney or client acted reasonably in assuming that a confidential or fiduciary relationship of some sort existed and, if so, whether the relationship developed into a matter sufficiently substantial to make disqualification or some other judicial remedy appropriate.” Id. at 609-610 (quotation marks and citation omitted). “Stating each proposition negatively, if any disclosures of privileged or confidential material were undertaken without a reasonable expectation that they would be so maintained . . . , or if, despite the existence of a relationship conducive to such disclosures, no disclosures of any significance were made, it would seem inappropriate for the court to dictate to the expert.” Id. at 610 (quotation marks and citation omitted).
Several factors may be considered in evaluating the reasonableness of a party’s assumption of a fiduciary relationship, including: “(1) whether the relationship was long standing and involved frequent contacts, (2) whether the expert was to be called as a witness in the underlying case, (3) whether the parties entered into a formal confidentiality agreement, (4) whether the expert was retained to assist in the litigation or paid a fee, (5) whether work product was discussed or the party provided documents to the expert, and (6) whether the expert derived any of his specific ideas from work done under the direction of the retaining party.” Teutsch Estate, 336 Mich App at 611. “As to the second prong, . . . [c]onfidential information is information of particular significance or information which can readily be identified as either attorney work product or within the scope of the attorney-client privilege.” Id. at 612 (quotation marks and citation omitted). Courts should also consider public interest factors, “such as preventing conflicts of interest, maintaining the integrity of the judicial process, maintaining accessibility to experts with specialized knowledge, . . . encouraging experts to pursue their professional calling, . . . [and] whether another expert is available and whether the opposing party will be unduly burdened by having to retain a new expert.” Id. at 613 (quotation marks and citation omitted).
O.Rebutting Defendant’s Presentation of Expert Testimony on Mental State
“When a defendant presents evidence through a psychological expert who has examined [the defendant], the government likewise is permitted to use the only effective means of challenging that evidence: testimony from an expert who has also examined him.” Kansas v Cheever, 571 US 87, 94 (2013). Specifically, “where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence.” Id. at 98 (finding the Fifth Amendment did not prohibit the government from introducing evidence from the defendant’s court-ordered mental evaluation to rebut expert testimony that supported a defense of voluntary intoxication).
“[O]nce [a defendant] places into evidence his own expert’s psychological report (that used information obtained from defendant), the Fifth Amendment (or its state counterpart) cannot then be used as a shield to prevent the prosecution from accessing similar information from defendant for their own expert’s use[.]” People v Black, ___ Mich App ___, ___ (2024) (Defendant “cannot have his cake and eat it too[.]”) (quotation marks and citation omitted). In a Miller15 hearing, “when a defendant intends on submitting an expert witness and report to the trial court that addresses any relevant Miller factors, neither the Fifth Amendment nor art 1, § 17 of the Michigan Constitution are violated when the defendant is required by court order to submit to an examination by a state witness.” Black, ___ Mich App at ___. “[B]ecause the prosecutor bears the burden of proof at a Miller hearing, and that burden is to rebut a presumption that the particular juvenile defendant is not deserving of life without parole, providing the prosecution the ability to have its expert meet with defendant for purposes of expert evaluation and testimony to rebut defendant’s evidence does not violate his right against self-incrimination.” Id. at ___ (cleaned up). Indeed, “nothing in the amendment allows a defendant to submit evidence relevant to his current mental status while at the same time refusing the prosecution access to the same information and opportunity[.]” Id. at ___.
“Thus, while recognizing that defendant retains his Fifth Amendment privilege against self-incrimination, it remains the case that the privilege cannot be selectively asserted in an effort to control what narrative or information is available to a court and the prosecutor.” Id. at __ (holding that “the Fifth Amendment is not violated (or the right is waived) by requiring defendant to cooperate with a state expert hired to rebut the evidence defendant is submitting on the issue”). “Even as a general rule, in the context of testimony and cross-examination, a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.” Id. at ___ (quotation marks and citation omitted). “Allowing a witness when testifying to pick and choose what aspects of a particular subject to discuss would call into question the trustworthiness of the statements and limit the integrity of the factual inquiry.” Id. at ___ (quotation marks and citation omitted). “Any resultant distortion by allowing an individual to completely control the narrative could make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.” Id. at ___ (quotation marks and citation omitted).
Civil. M Civ JI 4.10 – Weighing Expert Testimony.
Criminal. M Crim JI 5.10 – Expert Witness.