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A Better Partnership
November 13, 2017

MSC to consider whether it was reasonable trial strategy to allow an expert to testify regarding the victim's truthfulness

The Michigan Supreme Court will consider a case that toes the line of when it is reasonable trial strategy to allow an expert to comment on the truthfulness of another witness.  In People v Bentz, Case No. 155361, the Michigan Supreme Court has ordered oral argument on whether to grant an application for appeal regarding the defendant's claim of ineffective assistance of counsel.  The defendant claims that his attorney should have objected to the expert testimony of a physician who testified that--despite no physical signs of sexual abuse--the 13-year-old victim had likely suffered the abuse because of her "clear, consistent, detailed, and descriptive" recollections of the abuse.

In Bentz, the child victim accused the adult defendant of criminal sexual assault on three occasions.  Outside of the victim herself, the key testimony in the case came from a physician who examined the victim over a year after the final alleged assault.  The physician testified that the although the physical examination was normal, the victim reported "clear, consistent, detailed, and descriptive" history of sexual abuse to the physician's medical assistants.  On cross examination, the physician admitted that it was possible the victim was not abused and possible that children might lie about abuse.

The defendant was convicted and he appealed, alleging ineffective assistance of counsel.  The defendant alleged that his counsel was ineffective for failing to object to the physician's testimony, arguing that the physician's testimony exceeded the bounds of MRE 702 because the physician vouched for the truthfulness of another witness--the victim--which impermissibly invaded the province of the jury.

The Court of Appeals agreed with this assessment, finding that the physician's testimony "constituted improper vouching of the victim's credibility because [the physician's] testimony was based on factors indicating the reliability of the victim's statements, not information from the physical exam."  But despite finding this testimony impermissible, the Court of Appeals held that the defendant's claim of ineffective assistance of counsel still fell short of overcoming the "strong presumption that defense counsel was effective and chose to refrain from objecting to the testimony as a matter of trial strategy."  The Court reasoned that the testimony elicited on cross examination was helpful to the defense such that it would have been a reasonable strategic decision to forgo precluding the physician's testimony in order to elicit this defense material.

The Court of Appeals also held that even if the defendant could show that his counsel's performance was deficient, he could not overcome the second element of the familiar Strickland test.  The Court held that the outcome would have been no different without the testimony because the physician essentially repeated the victim's testimony, and thus, the jury did not hear anything new.

The Michigan Supreme Court granted mini-oral argument and briefing on both elements of the Strickland test: (1) whether defense counsel was ineffective for failing to object to the physician's testimony and (2) whether there was a reasonable probability that the outcome of trial would have been different.

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