11.12Expert Testimony in Child Protective Proceedings

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

Qualified expert testimony is required when a child is an Indian child who is being placed outside the home or whose parent’s parental rights are being terminated.¹ 25 USC 1912(e)-(f); MCL 712B.15(2); MCL 712B.15(4); MCR 3.977(G)(2); 25 CFR 23.121(a)-(b).

In addition, when preparing a case service plan, the Department of Health and Human Services (DHHS) must consult the child’s attending physician during a hospitalization or the child’s primary care physician if a child is placed outside the home and a physician has diagnosed the child’s abuse or neglect as involving:

(a) a failure to thrive;

(b) Munchausen syndrome by proxy;

(c) Shaken baby syndrome;

(d) a bone fracture diagnosed as a result of abuse or neglect; or

(e) drug exposure.² MCL 712A.18f(6).

If this consultation is made and a subsequent judicial proceeding is held to determine whether to return the child home, “the court must allow the child’s attending physician of record during a hospitalization or the child’s primary care physician to testify regarding the case service plan.” MCL 712A.18f(7).

Doubts regarding an expert’s credibility or qualifications, and disagreements with an expert’s opinion or interpretation of facts, go to the weight of an expert’s testimony, not its admissibility. Surman v Surman, 277 Mich App 287, 309 (2007). Such issues should be addressed during cross-examination and left for the jury to decide. Surman, supra at 309-310.

A.Admissibility

MRE 702 provides the standard for admissibility of expert testimony:

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

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

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

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

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

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

B.Factual Basis for Opinion

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

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

Opinions and diagnoses may be admissible under MRE 803(6).³ 

A party may examine an expert witness using hypothetical situations based on facts already in evidence. In re Rinesmith, 144 Mich App 475, 482-483 (1985) (experts “opinion was based on a general knowledge of the development and sexual awareness of 4-year-olds and was not an evaluation of [the victim’s] credibility”).

C.Court-Appointed Expert

MRE 706 authorizes a court to appoint expert witnesses in any case. MRE 706. The purpose of MRE 706 is to assist the court, and “is . . .  inapplicable[ where] an expert witness [ is sought to] . . . consult with and assist [a party.]” In re Yarbrough, 314 Mich App 111, 121 (2016).

“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.The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.” MRE 706(a).

“The court must inform the expert of the expert’s duties. The court may do so orally at a conference in which the parties have an opportunity to participate.” MRE 706(b). “The expert:

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

(2) may be deposed by any party;

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

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

D.Expert Testimony by Physician or Psychologist

Like other expert testimony, an examining physician’s testimony will 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 Smith, 425 Mich 98, 112 (1986).

In cases involving child sexual abuse, a psychologist’s opinion as to whether abuse actually occurred “is a legal question outside the scope of the psychologist’s expertise and therefore not a proper subject of expert testimony.” In re Brimer, 191 Mich App 401, 407 (1991), citing People v Beckley, 434 Mich 691, 726-729 (1990).⁴ It is also improper for the psychologist to evaluate the child’s credibility. Brimer, supra, citing Beckley, 434 Mich at 737.

“[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 Smith (Joseph), 425 Mich at 109 (alteration in the original).

“[A]n examining physician’s testimony diagnosing a child-complainant with ‘possible sexual abuse’ is inadmissible without corroborating physical evidence[.]” People v Del Cid (On Remand), 331 Mich App 532, 542, 550-551 (2020) (concluding, on remand, that admission of the examining physician’s uncorroborated testimony that there was “possible sexual abuse” was plainly erroneous and required reversal).

E.Expert Testimony About Child Sexual Abuse Victim Behavior

A brief discussion on expert testimony about the behavior of child sexual abuse victims is contained in this subsection. For a detailed discussion, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 3.

“‘[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 (Peterson I), 450 Mich 349, 371 (1995), modified People v Peterson (Peterson II), 450 Mich 1212. Accordingly, an expert witness’s testimony is limited. Peterson (Peterson I), 450 Mich at 352. The expert witness may not (1) testify that the sexual abuse occurred, (2) vouch for the veracity of the victim,⁵ or (3) testify to the defendant’s guilt. Id. at 352.

Despite these limitations, “(1) an expert may testify in the prosecution’s case in chief [(rather than only in rebuttal)] regarding typical and relevant symptoms of child sexual abuse for the sole purpose of explaining a victim’s specific behavior that might be incorrectly construed by the jury as inconsistent with that of an actual abuse victim, and (2) an expert may testify with regard to the consistencies between the behavior of the particular victim and other victims of child sexual abuse to rebut an attack on the victim’s credibility.” Peterson (Peterson I), 450 Mich at 352-353. See id. at 379-380 (expert’s testimony was properly admitted where it helped to dispel common misperceptions held by jurors regarding 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); People v Draper (On Remand), 188 Mich App 77, 78-79 (1991) (expert testimony by two psychologists who gave opinions that the victim had been sexually abused was improper because their opinions went “beyond merely relating whether the victim’s behavior [was] consistent with that found in other child sexual abuse victims [but rather] [were] opinions on an ultimate issue of fact, which is for the jury’s determination alone[]”).

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

“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.

See People v Lukity, 460 Mich 484, 501-502 (1999) (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).

F.Expert Assistance Funding

“[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[] [his or her] interests, and the burden on the state of providing expert funding[.]” In re Yarbrough, 314 Mich App 111, 137 (2016) (“highlight[ing] the inherently fact-specific inquiry required by the Eldridge due process framework: ‘due process is flexible and calls for such procedural protections as the particular situation demands[]’”).

Where the respondent-parents in parental termination proceedings “plainly demonstrated that [the] petitioner’s case rested exclusively on expert medical testimony involving complex, controversial medical issues, and that respondent[-parents’] counsel lacked the tools necessary to challenge [the] petitioner’s experts[,]” the chief judge⁶ “abused his discretion by failing to employ the requisite due process analysis under [Eldridge, 424 US at 319], and by refusing to authorize reasonable expert witness funding[.]” Because one hospital’s physicians determined that the child’s scans “showed no evidence of trauma or . . . abnormality[,]” while another hospital’s “medical experts determined that the same films [from MRI and CT scans] demonstrated powerful evidence of abuse[,]” there existed “no meaningful alternative evidentiary safeguards” that would have “afforded [the] respondents an opportunity to challenge [the] petitioner’s child abuse theory[.]” In re Yarbrough, 314 Mich App at 131-132, 137-138. “[T]he 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[] [the] 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 experts’ testimony.” Id. at 135-136 (citation omitted). Finally, the burden of providing approximately $2,500 as requested by the respondents did not “outweigh[] the interests of [the] indigent [respondent-]parents, who otherwise lacked the financial resources to retain expert medical consultation.” Id. at 137.