7.6​Admission of Expert Testimony By Physicians

Generally, “the examining physician in a rape case is a proper witness as long as his testimony may assist the jury in their determination of the existence of either of two crucial elements of the offense charged, (1) penetration itself and (2) penetration against the will of the victim.” People v McGillen #2, 392 Mich 278, 284 (1974). An examining physician “may not testify that [a] complainant was raped by the defendant on the alleged date, nor may [the physician] render an opinion as to the complainant’s veracity[.]” People v Byrd, 133 Mich App 767, 779-780 (1984) (citations omitted).

A.​Determining the Need for Examining Physician Testimony

Like other expert testimony, an examining physician’s testimony is admissible if the physician 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).

B.​Physician’s Opinion Testimony on Ultimate Issue

Expert physician testimony may include an expert’s opinion on the ultimate issue of whether the victim was sexually assaulted, as long as the opinion is based on findings within the realm of the expert’s medical capabilities or expertise, and not simply on the emotional state of, or the history given by, the victim. People v Smith, 425 Mich 98, 112-113 (1986) (expert’s testimony that the complainant had been sexually assaulted was improperly admitted because the testimony “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 complainant”). See also MRE 704.¹⁷

Further, “[the] 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). “[E]xamining 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. In addition, “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.’” Id. at 255, 262, quoting Smith, 425 Mich at 109 (alteration in original). “Such testimony is not permissible because a ‘jury [is] in just as good a position to evaluate the victim’s testimony as’ the doctor.” Thorpe, 504 Mich at 255, quoting Smith, 425 Mich at 109 (alteration in original). 

In Thorpe, expert testimony regarding

“‘probable pediatric sexual abuse’ was based solely on [the expert’s] own opinion that [the complainant’s] account of the assaults was ‘clear, consistent, detailed and descriptive.’ [The expert’s] testimony clearly falls within Smith’s^[18] 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.” Thorpe, 504 Mich at 262 (fifth alteration in original).

In the companion case to Thorpe, the Michigan Supreme Court found plain error that affected the defendant’s substantial rights 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.” Thorpe, 504 Mich at 264.

“‘Possible pediatric sexual abuse’ is not significantly different from ‘probable pediatric sexual abuse’ in terms of the physician’s endorsement of the accusation.” People v Del Cid (On Remand), 331 Mich App 532, 547 (2020) (emphasis added). Accordingly, “a diagnosis of ‘possible pediatric sexual abuse’ is . . . also inadmissible without corroborating physical findings. Id.

The physician’s testimony that the victim had been sexually assaulted was properly admitted because “he testified that his opinion was based upon what he observed medically. Although his observation of the victim’s emotional state was part of his medical evaluation, [he] did not base his opinion on the victim’s emotional state. [His] opinion was based on objective facts obtained from his medical examination of the victim, such as the red mark on her neck and motile sperm in her body.” People v Swartz, 171 Mich App 364, 377 (1988).

“In a criminal sexual conduct case, an examining physician’s testimony is admissible for the limited purposes of establishing penetration or penetration against the will of the victim.” People v Vasher, 167 Mich App 452, 459 (1988). In Vasher, the physician’s “testimony was confined to the issue of whether penetration occurred. [He] did not express an opinion as to a place, specific time or by whom the rape occurred. Furthermore, the doctor’s opinion was grounded upon objective evidence within the realm of her expertise as an obstetrician/gynecologist.” Id. at 459-460. Specifically, the examining physician “testified that the physical examination revealed healed tears in the vaginal area as well as lacerations and signs of chronic irritation in the perianal area. In the doctor’s opinion, the three-year-old child had been sexually penetrated.” Id. at 458.

C.​Qualifications of Examining Physician

The trial court properly determined that the examining physician was qualified as an expert witness even though the physician had no previous experience with examining sexual assault victims. People v Swartz, 171 Mich App 364 (1988). The Court of Appeals noted that “he had studied medicine, graduated from medical school and was licensed to practice medicine in Michigan. He had attended a lecture in medical school partially devoted to the examination of sexual assault victims. Moreover, he had experience in examining sperm in infertility cases.” Id. at 375-376.