6.11False Allegations of Sexual Assault

A.Expert Testimony on False Reporting of Sexual Abuse

“[E]xpert witnesses may not testify that children overwhelmingly do not lie when reporting sexual abuse because such testimony improperly vouches for the complainant’s veracity.”¹ People v Thorpe, 504 Mich 230, 235 (2019) (reversing the judgment of the Court of Appeals and remanding the case to the circuit court for a new trial). In Thorpe, the expert “identified only two specific scenarios in his experience when children might lie, neither of which applie[d to the] case. As a result, although he did not actually say it, one might reasonably conclude on the basis of [the expert’s] testimony that there was a 0% chance [the complainant] had lied about sexual abuse. In so doing, [the expert] for all intents and purposes vouched for [the complainant’s] credibility.” Id. at 259. “Because the trial turned on the jury’s assessment of [the complainant’s] credibility, the improperly admitted testimony wherein [the expert] vouched for [the complainant’s] credibility likely affected the jury’s ultimate decision.” Id. at 260. See also People v Sattler-VanWagoner, ___ Mich App ___, ___ (2024) (an expert’s statement “that false reports are ‘statistically very rare,’ though lacking a numeric value, was essentially the statistical vouching described in Thorpe, 504 Mich at 252”; nonetheless, “[t]he isolated nature of the statement and substantial other evidence of [defendant’s] guilt indicates that this error did not affect the outcome”).

B.Complainant’s History of False Accusations of Sexual Assault

1.Issues Regarding Admissibility

Testimony concerning prior false allegations of sexual misconduct does not implicate the rape-shield statute. People v Williams, 191 Mich App 269, 272-273 (1991).²

In fact, prior false accusations of sexual assault may bear directly on the victim’s credibility and the credibility of the victim’s accusations, and “preclusion of such evidence would unconstitutionally abridge the defendant’s right to confrontation. Williams, 191 Mich App at 272.

See also People v Jackson, 477 Mich 1019 (2007), where the Michigan Supreme Court reiterated that the rape-shield statute does not apply to evidence of a complainant’s prior false allegations:

“[T]he defendant must be afforded the opportunity to introduce testimony that the complainant has previously been induced by his father to make false allegations of sexual abuse against other persons disliked by the father. MRE 404(b). Such testimony concerning prior false allegations does not implicate the rape[-]shield statute. MCL 750.520j.”

A trial court must explicitly state on the record whether a defendant’s offer of proof regarding the complainant’s prior false allegations of sexual assault sufficiently implicated the defendant’s constitutional right of confrontation and if so, the trial court must then hold the in camera evidentiary hearing required by People v Hackett, 421 Mich 338 (1984). People v Butler, ___ Mich ___, ___ (2024) (holding that “the Court of Appeals erred by analyzing the admissibility of defendant’s proffered evidence without first ordering the trial court to conduct the in camera evidentiary hearing required by Hackett”).³

2.Newly Discovered Evidence of False Allegations

“[N]ewly discovered impeachment evidence ordinarily will not justify the grant of a new trial.” People v Grissom, 492 Mich 296, 317-318, 321 (2012). However, newly discovered evidence that a rape victim raised false allegations of rape against other individuals “may be grounds for a new trial if it satisfies the four-part test set forth in [People v Cress, 468 Mich 678, 692 (2003)].” Grissom, 492 Mich at 299-300.

“Newly discovered impeachment evidence concerning immaterial or collateral matters cannot satisfy Cress.” Grissom, 492 Mich at 321. “But if [the evidence] has an exculpatory connection to testimony concerning a material matter and a different result is probable, a new trial is warranted.” Id. “[The evidence] may be of a general character and need not contradict specific testimony at trial.” Id. at 300.

“[G]ranting a new trial on the basis of newly discovered evidence requires a defendant to show that (1) the evidence itself, not merely its materiality, is newly discovered, (2) the newly discovered evidence is not cumulative, (3) using reasonable diligence, the party could not have discovered and produced the evidence at trial, and (4) the new evidence makes a different result probable on retrial.” Grissom, 492 Mich at 320.