6.8Evidentiary Issues: Character Evidence and Expert Testimony

This section contains a brief discussion on evidentiary issues that are specific to crime victims. For a detailed discussion on evidentiary issues in general, see the Michigan Judicial Institute’s Evidence Benchbook.

A.Evidence of Victim’s Character

1.Homicide Victim

In general, evidence of a person’s character or a character trait is not admissible to show that the person acted in conformity with his or her character or character trait at the time in question. MRE 404(a). However, MRE 404(a)(2)(B) permits evidence of an alleged victim’s character in homicide cases when self-defense is an issue in the case:

“[W]hen self-defense is an issue, the defendant may offer evidence of the alleged victim’s trait for aggression, and if the evidence is admitted, the prosecution may:

(i) offer evidence of the defendant’s same trait; and

(ii) offer evidence of the alleged victim’s trait for peacefulness to rebut evidence that the alleged victim was the first aggressor[.]”

Where the defendant offers character evidence of the deceased victim to show that the defendant acted in self-defense, the evidence is being offered to show the defendant’s state of mind, and the defendant must have had knowledge of the victim’s violent reputation before the evidence will be admitted. People v Harris (Jerry), 458 Mich 310, 315-316 (1998). If, however, the character evidence of a victim is being offered to show that he or she was the probable aggressor, the defendant need not know of the victim’s reputation at the time. People v Orlewicz, 293 Mich App 96, 104 (2011). “[T]his type of character evidence may only be admitted in the form of reputation testimony, not by testimony regarding specific instances of conduct unless the testimony regarding those instances is independently admissible for some other reason or where character is an essential element of a claim or defense.”¹ Orlewicz, 293 Mich App at 104.  “[E]vidence of [a] decedent’s specific acts of violence is admissible only to prove an essential element of self-defense, such as a reasonable apprehension of harm.” People v Edwards (William), 328 Mich App 29, 37 (2019).

In cases where the defendant is claiming self-defense, a jury instruction on the alleged victim’s past acts or reputation may be appropriate. See M Crim JI 7.23. M Crim JI 7.23(1) addresses past violent acts committed by the alleged victim. M Crim JI 7.23(2) addresses the alleged victim’s reputation for cruelty and violence.

2.Sexual Assault Victim

A brief discussion on Michigan’s rape-shield provisions is contained in this sub-subsection. For a detailed discussion, see the Michigan Judicial Institute’s Sexual Assault Benchbook, Chapter 7.

a.Admissibility

Evidence of a victim’s sexual conduct is generally inadmissible in all criminal sexual conduct (CSC) prosecutions, unless, and then only to the extent that, (1) the evidence is material to a fact at issue; (2) the inflammatory or prejudicial nature of the evidence does not outweigh its probative value; and (3) the evidence involves either the victim’s past sexual conduct with the actor or specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease. See MCL 750.520j(1); MRE 404(a)(2)(C).

Specifically, MCL 750.520j(1) provides:

“Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under [MCL 750.520b to MCL 750.520g]^[2] unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:

(a) Evidence of the victim’s past sexual conduct with the actor.

(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.”

See also MRE 404(a)(2)(C), which permits “in a [CSC] case, the defendant [to] offer evidence of:

(i) the alleged victim’s past sexual conduct with the defendant, and

(ii) specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.”

“In certain limited situations, evidence that is not admissible under one of the statutory exceptions [in MCL 750.520j(1)(a) or MCL 750.520j(1)(b)] may nevertheless be relevant and admissible to preserve a criminal defendant’s Sixth Amendment right of confrontation.”People v Benton, 294 Mich App 191, 197 (2011). “When applying the rape-shield statute, trial courts must balance the rights of the victim and the defendant in each case.” Benton, 294 Mich App at 198. If a trial court determines that evidence of a victim’s past sexual conduct is not admissible under one of the statutory exceptions, it must consider whether admission is required to preserve the defendant’s constitutional right to confrontation; if the evidence is not so required, the court “‘should . . . favor exclusion’ of [the] evidence.” Id. at 197, quoting People v Hackett, 421 Mich 338, 339 (1984)

However, if the defendant files an appropriate motion under MCL 750.520j with an offer of proof sufficient to support defendant’s claim that the evidence of the victim’s past sexual conduct is relevant to defendant’s constitutional right of confrontation—such as a prior false sexual assault allegation—then the admissibility of the proffered evidence must be determined at an in camera evidentiary hearing. People v Butler, ___ Mich ___, ___ (2024), citing Hackett, 421 Mich at 350-351. On interlocutory appeal, the Butler Court determined that the trial court erred when it failed to explicitly state on the record that defendant’s proffered evidence was sufficient to require an in camera hearing and then failed to hold the required in camera evidentiary hearing to determine admissibility. Butler, ___ Mich at ___. The Court noted that an offer of proof is sufficient to necessitate an in camera hearing when there is “a showing of at least some apparently credible and potentially admissible evidence that the prior allegation was false.” Id. at ___. “Once a sufficient offer of proof is made, the in camera evidentiary hearing is not optional.” Id. at ___. Importantly, the Court found that the standard of proof to be applied at the in camera hearing to satisfy “a defendant’s evidentiary burden to prove that the prior allegations were false” was a matter of first impression in Michigan, and that the question should first be assessed by the trial court. Id. at ___.

“‘[P]ast sexual conduct refers to conduct that has occurred before the evidence is offered at trial.” People v Adair, 452 Mich 473, 483 (1996). In Adair, the defendant was charged with sexually assaulting his wife and sought to introduce evidence of specific incidents when he and his wife engaged in consensual sexual relations after the alleged assault. Id. at 475. In deciding whether subsequent sexual relations are sufficiently probative to be admitted, a court should consider (1) the length of time between the alleged assault and the subsequent sexual relations, and (2) whether the complainant and the defendant had a personal relationship before the alleged assault. Id. at 486-487. In explaining its reasoning, the Court stated:

On a common-sense level, a trial court could find that the closer in time to the alleged sexual assault that the complainant engaged in subsequent consensual sexual relations with [the] alleged assailant, the stronger the argument would be that if indeed [he or] she had been sexually assaulted, [he or] she would not have consented to sexual relations with [the alleged assailant] in the immediate aftermath of sexual assault. Accordingly, the evidence may be probative. Conversely, the greater the time interval, the less probative force the evidence may have, depending on the circumstances.

Even so, time should not be the only factor. The trial court should also carefully consider the circumstances and nature of the relationship between the complainant and the defendant. If the two did not have a personal relationship before the alleged sexual assault, then any consensual sexual relations after the alleged sexual assault would likely be more probative than if the two had been living together in a long-term marital relationship. Additionally, the trial court could find that there may be other human emotions intertwined with the relationship that may have interceded, leading to consensual sexual relations in spite of an earlier sexual assault. Depending on the circumstances, the trial court may find that these other considerations have intensified the inflammatory and prejudicial nature of subsequent consensual sexual conduct evidence and properly conclude that it should be precluded or limited. Moreover, the Legislature, by the use of the term ‘unless and only to the extent that’ in the rape-shield statute, expressly limited admission of such evidence to what is necessary for the defense. Therefore, the trial court appropriately should limit the scope of sexual conduct evidence where constitutionally possible. [Id.]

See also the Michigan Judicial Institute’s Sexual Assault Benchbook, Chapter 6.

b.Notice Requirements

MCL 750.520j(2) requires the defendant to provide notice of his or her intent to offer evidence of the complainant’s prior sexual conduct:

“If the defendant proposes to offer evidence described in [MCL 750.520j(1)(a)] or [MCL 750.520j(1)(b)], the defendant within 10 days after the arraignment on the information shall file a written motion and offer of proof. The court may order an in camera hearing to determine whether the proposed evidence is admissible under [MCL 750.520j(1)]. If new information is discovered during the course of the trial that may make the evidence described in [MCL 750.520j(1)(a)] or [MCL 750.520j(1)(b)] admissible, the judge may order an in camera hearing to determine whether the proposed evidence is admissible under [MCL 750.520j(1)].”

3.Victim’s Credibility

Evidence of character is generally inadmissible to prove conduct. MRE 404(a). However, MRE 404(a)(3) permits a witness’s credibility to be attacked or supported through impeachment, opinion or reputation testimony, or inquiry into specific instances of conduct, as permitted by MRE 607, MRE 608 or MRE 609. For a detailed discussion of these court rules, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 3.

B.Cross-Examination Regarding Victim’s Civil Suit

“It is a well-settled rule of law in Michigan that where civil actions have been commenced on the same matter as the action being tried, it is reversible error for the trial court to refuse to allow inquiry and argument regarding such connected action since the bias or interest of a witness is a proper subject of inquiry.”³ People v Johnston, 76 Mich App 332, 336 (1977). In Johnston, “Although more latitude in the cross-examination of the witness . . . would have been preferable,” the trial court did not commit reversible error in limiting defense counsel’s cross-examination of the victim regarding the victim’s filed civil suit against the apartment complex where she lived and the defendant worked where “[the] defendant’s counsel succeeded in getting before the jury the fact that [the victim] had indeed started [a civil] suit against the apartment complex[, and] . . . the trial transcript show[ed] that, without objection, defense counsel referred to the civil suit in his summation when he was discussing reasons why the [victim] might have fabricated her accusation against the defendant.” See also People v Adamski, 198 Mich App 133, 141-142 (1993) (“trial court erred in prohibiting [the] defendant[-father, accused of having sexual intercourse with his 14-year-old daughter,] from cross-examining [his daughter] with regard to a civil action she had brought or was about to bring, through her mother, against [the] defendant[-father][]”).

C.Expert Testimony

A brief discussion on expert testimony is contained in this section. For a more comprehensive discussion, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 4.

1.Admissibility

MRE 702 provides the standard for admissibility of expert testimony:

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

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

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

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

(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” MRE 702.

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

If the court determines that the expert testimony meets the requirements of MRE 702, it must next determine whether the probative value of the expert testimony “is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” See MRE 403. However, on request, the trial judge may decide that a limiting instruction is an appropriate alternative to excluding the evidence. People v Christel, 449 Mich 578, 587 (1995).

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

2.Factual Basis for Expert Opinion

MRE 703 governs the bases of expert opinion testimony:

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

MRE 703 “permits ‘an expert’s opinion only if that opinion is based exclusively on evidence that has been introduced into evidence in some way other than through the expert’s hearsay testimony.’” People v Fackelman, 489 Mich 515, 534 (2011), quoting 468 Mich xcv, xcvi (staff comment to the 2003 amendment of MRE 703).

According to MRE 705, “[u]nless the court orders otherwise, an expert may state an opinion—and give the reasons for it—without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.”

3.Court-Appointed Expert

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

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

The appointed expert witness:

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

(2) may be deposed by any party;

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

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

4.Expert Testimony by Physician

An examining physician’s testimony may be admissible if the expert possesses specialized knowledge that will assist the trier of fact in understanding the evidence or determining a fact in issue under MRE 702. People v Mays, 425 Mich 98, 113, 115 (1986) (a consolidated case involving two different defendants and separate sets of facts).

•As it related to defendant-Mays, the Mays Court held that a medical expert’s opinion “that the physical examination revealed abrasions at the entrance of the [victim’s] vagina[ and] . . . that [the victim] had been penetrated against her will” was admissible where the medical expert’s opinion “was grounded upon objective evidence[,] cross-examination was available, and was used, to expose its true basis[, and t]he use of force or coercion [was] relevant . . . in light of [the] defendant’s claim that the acts were consensual.”

•As it related to defendant-Smith, the Mays Court held that the trial court erroneously admitted the medical expert’s testimony where “[the medical expert’s] opinion that the victim was sexually assaulted was based, not on any findings within the realm of his medical capabilities or expertise as an obstetrician/gynecologist, but, rather, on the emotional state of, and the history given by, the [victim].”

“[A]n examining physician, if qualified by experience and training relative to treatment of sexual assault complainants, can opine with respect to whether a complainant had been sexually assaulted when the opinion is based on physical findings and the complainant’s medical history.” People v Thorpe, 504 Mich 230, 255 (2019). However, “examining physicians cannot testify that a complainant has been sexually assaulted or has been diagnosed with sexual abuse without physical evidence that corroborates the complainant’s account of sexual assault or abuse because such testimony vouches for the complainant’s veracity and improperly interferes with the role of the jury.” Id. at 235 (“an examining physician cannot give an opinion on whether a complainant had been sexually assaulted if the ‘conclusion [is] nothing more than the doctor’s opinion that the victim had told the truth’”; “[s]uch testimony is not permissible because a ‘jury [is] in just as good a position to evaluate the victim’s testimony as’ the doctor”), quoting People v Smith (Joseph), 425 Mich 98, 109 (1986) (alteration in the original). See also People v Del Cid (On Remand), 331 Mich App 532, 547-548 (2020) (an examining physician’s testimony regarding a child-complainant’s “possible sexual abuse” was inadmissible without corroborating physical evidence).

For additional information on expert testimony by physicians in criminal sexual conduct cases or expert testimony by Sexual Assault Nurse Examiners (SANEs), see the Michigan Judicial Institute’s Sexual Assault Benchbook, Chapter 8.

5.Expert Testimony—Specific Victim Groups

In some cases, “expert testimony is needed when a witness’ actions or responses are incomprehensible to average people.”” People v Christel, 449 Mich 578, 592 (1995).

a.Battered Woman Syndrome⁴

Expert testimony on the “generalities or characteristics” associated with battered woman syndrome is admissible for the narrow purpose of describing the victim’s distinctive pattern of behavior that was brought out at trial. People v Daoust, 228 Mich App 1, 10 (1998), overruled in part on other grounds by People v Miller, 482 Mich 540 (2008).⁵

Expert testimony relating to the characteristics associated with battered woman syndrome is admissible when the witness is properly qualified and the testimony is relevant and helpful to the jury’s evaluation of the complainant’s credibility. Christel, 449 Mich at 579-580. The expert’s testimony is admissible to help explain the complainant’s behavior, but the testimony is not admissible to express the expert’s opinion of whether the complainant was a battered woman or to comment on the complainant’s honesty. Id. at 580.

b.Victims of Child Sexual Abuse

“‘[C]ourts should be particularly insistent in protecting innocent defendants in child sexual abuse cases’ given ‘the concerns of suggestibility and the prejudicial effect an expert’s testimony may have on a jury.’” People v Musser, 494 Mich 337, 362-363 (2013) (holding that a detective who was not qualified as an expert witness was still subject to the same limitations as an expert because he “‘gave . . . the same aura of superior knowledge that accompanies expert witnesses in other trials’” and because, as a police officer, jurors may have been inclined to place undue weight on his testimony), quoting People v Peterson, 450 Mich 349, 371 (1995), modified 450 Mich 1212. Accordingly, an expert witness’s testimony is limited. Peterson, 450 Mich at 352. The expert witness may not (1) testify that the sexual abuse occurred, (2) vouch for the veracity of the victim,⁶ or (3) testify to the defendant’s guilt. Id. at 352.

Despite these limitations, “(1) an expert may testify in the prosecutor’s case-in-chief [(rather than only in rebuttal)] regarding typical and relevant symptoms of child sexual abuse for the sole purpose of explaining a victim’s specific behavior that might be incorrectly construed by the jury as inconsistent with that of an actual abuse victim, and (2) an expert may testify with regard to the consistencies between the behavior of the particular victim and other victims of child sexual abuse to rebut an attack on the victim’s credibility.” Peterson, 450 Mich at 352-353.

A defendant must raise certain issues before expert testimony is admissible to show that the victim’s behavior was consistent with sexually abused victims generally:

“Unless a defendant raises the issue of the particular child victim’s postincident behavior or attacks the child’s credibility, an expert may not testify that the particular child victim’s behavior is consistent with that of a sexually abused child. Such testimony would be improper because it comes too close to testifying that the particular child is a victim of sexual abuse.” Peterson, 450 Mich at 373-374.

Where the defense theory raised the issue of the complainant’s postincident behavior (attempting suicide), it was not an abuse of discretion to admit expert testimony comparing the child-victim’s postincident behavior with that of sexually abused children. People v Lukity, 460 Mich 484, 500-502 (1999). The Court stated:

“Under Peterson, [450 Mich at 349,] raising the issue of a complainant’s post[]incident behavior opens the door to expert testimony that the complainant’s behavior was consistent with that of a sexual abuse victim. Accordingly, the trial court did not abuse its discretion in allowing [the expert] to testify.

“Moreover, [the] defendant effectively cross-examined [the expert] and convincingly argued in closing that the fact that a behavior is ‘consistent’ with the behavior of a sexual abuse victim is not dispositive evidence that sexual abuse occurred. Specifically, [the defendant] argued that ‘almost any behavior is not inconsistent with being a victim of sexual assault.’” Lukity, 460 Mich at 501-502.

In Peterson, the Michigan Supreme Court found that the trial itself was “an almost perfect model for the limitations that must be set in allowing expert testimony into evidence in child sexual abuse cases.” Peterson, 450 Mich at 381. In that case, the victim delayed reporting the abuse for several years, but the defendant did not ask the victim any questions suggesting that the delay in reporting was inconsistent with the alleged abuse nor did the defendant attack the victim’s credibility. Id. at 358. The trial court allowed a single expert to clarify, during the prosecutor’s case-in-chief, that child sexual abuse victims frequently delay reporting the abuse. Id. at 359-360. The expert’s testimony helped to dispel common misperceptions held by jurors regarding the reporting of child sexual abuse, rebutted an inference that the victim’s delay was inconsistent with the behavior of a child sexual abuse victim, and did not improperly bolster the victim’s credibility. Id. at 379-380.

There is a bright-line rule that “an examining physician’s opinion that a complainant was sexually abused is admissible only if supported by physical findings.” People v Del Cid (On Remand), 331 Mich App 532, 547 (2020). Expert testimony regarding “‘probable pediatric sexual abuse’ . . . based solely on [the expert’s] own opinion that [the complainant’s] account of the [sexual] assaults was ‘clear, consistent, detailed and descriptive’ . . . clearly falls within Smith’s^[7] holding that an examining physician cannot give an opinion on whether a complainant had been sexually assaulted if the ‘conclusion [is] nothing more than the doctor’s opinion that the victim had told the truth.’ An examining physician’s opinion is objectionable when it is solely based ‘on what the victim . . . told’ the physician. Such testimony is not permissible because a ‘jury [is] in just as good a position to evaluate the victim’s testimony as’ the doctor.” People v Thorpe, 504 Mich 230, 255 (2019) (alterations in original). In Thorpe, “the Court of Appeals found no error in [the expert’s] testimony, reasoning that [the expert] did not opine on whether the complainant was abused by [the defendant] but only diagnosed the complainant with ‘probable pediatric sexual abuse.’” Id. at 264. However, the Michigan Supreme Court disagreed and stated that “[r]egardless of whether ‘probable pediatric sexual abuse’ is a term of art that can be used as a diagnosis with or without physical findings, . . . [the expert’s] testimony had the clear impact of improperly vouching for [the complainant’s] credibility.” Id.

An examining physician’s diagnosis that a complainant was a victim of “possible pediatric sexual abuse” is a distinction without a meaningful difference from a diagnosis of “probable pediatric sexual abuse.” Del Cid, 331 Mich App at 547. Testimony of either diagnosis is inadmissible in the absence of any physical findings. Id. at 547-548. Even if possible sexual abuse was considered significantly different from probable sexual abuse, the diagnosis would be inadmissible under MRE 403 because “[t]estimony that the ‘diagnosis’ is merely ‘possible’ has very little probative value while . . . such testimony is highly prejudicial.” Id. at 548. People v Harbison, the companion case in People v Thorpe, 504 Mich 230 (2019), “recognized that a ‘diagnosis’ of sexual abuse absent physical findings is a term of art and has no probative value at trial.” Del Cid, 331 Mich App at 550. “That the [Harbison] Court spoke disapprovingly of such diagnoses without qualification supports [the] conclusion that a diagnosis of ‘possible pediatric sexual abuse’ is also inadmissible without corroborative physical findings.” Del Cid, 331 Mich App at 550.

6.Expert Testimony on Human Trafficking Victims

“Expert testimony as to the behavioral patterns of human trafficking victims and the manner in which a human trafficking victim’s behavior may deviate from societal expectations is admissible as evidence in court in a prosecution under [the Human Trafficking Act, MCL 750.462a et seq.,] if the expert testimony is otherwise admissible under the rules of evidence and laws of this state.” MCL 750.462g(2).

7.Expert Testimony by Physician on Medical Torture Diagnosis

The trial court did not err when it allowed a physician expert in general pediatrics and child abuse pediatrics to testify regarding her diagnosis of “medical torture” in a criminal torture and child abuse trial, where the diagnosis was made “after having the opportunity to review the minor child’s medical records, conduct a physical examination, and interview [the child].” People v Alexander, ___ Mich App ___, ___ (2024), quoting People v Ackley, 336 Mich App 586, 595 (2021) (“‘[W]here 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.’”) (alteration in original). The term “medical torture” does “not have the potential to conflate [the expert’s] medical diagnosis with a legal conclusion concerning defendant’s legal responsibility.” Alexander, ___ Mich App at ___. The expert “did not suggest that defendant acted knowingly or intentionally” when she testified regarding the diagnosis. Id. at ___.

A diagnosis of medical torture requires:

• two physical assaults at two different times, or one prolonged physical assault,

• at least two psychological maltreatments or two forms of psychological abuse,⁸ and

• information from other sources regarding treatment of the child at home. Id. at ___.

Medical torture is “not a very common diagnosis [and is] only reserved for severe cases of severe psychological maltreatment.” Id. at ___ (quotation marks omitted).