Desirae Glatfelter confronted her boyfriend about her suspicion that he was having an affair. When he denied the accusation, Glatfelter became irate. Her boyfriend grabbed her in a “bear hug,” purportedly to calm her down. In the words of the court, he also “administered a French kiss.” Glatfelter objected to the “administration” of the kiss by biting off a part of his tongue.

When officers arrived at the scene, Glatfelter told them that her boyfriend had squeezed her violently and had forced his tongue into her mouth. She became irate again when the officers chose not to arrest her boyfriend for assaulting her but instead arrested her for defending herself.

Glatfelter was charged with mayhem. At her trial, Glatfelter’s boyfriend admitted that he placed Glatfelter in a bear hug and that Glatfelter was not calm when he pushed his tongue into her mouth.

He testified that he thought it was fine to calm his girlfriend down with a French kiss because he had done it before. He also admitted that he had dislocated her shoulder several months earlier, an act of domestic abuse that resulted in his arrest.

Glatfelter asked to present testimony from an expert in domestic violence. The court denied that request because she had not given timely notice of her intent to call the expert. The jury acquitted Glatfelter of mayhem but found her guilty of the lesser offense of aggravated assault.

Ineffective Assistance Claim

Glatfelter’s postconviction lawyer argued that her trial lawyer was ineffective, in part because he failed to give timely notice of his intent to call an expert witness. Every criminal defendant is entitled both to the assistance of counsel and to have that counsel perform in an objectively reasonable way.

Michigan’s Rules of Criminal Procedure require each party to give the opposing party notice in advance of trial of the witnesses they intend to call, including expert witnesses. Since reasonable attorneys follow the rules, the Michigan Court of Appeals concluded that Glatfelter’s attorney failed to perform reasonably when she neglected to notify opposing counsel of her intent to call an expert witness.

In addition, Glatfelter wanted to use the expert as a rebuttal witness. Michigan law gives trial judges the discretion to admit the testimony of undisclosed rebuttal witnesses when it would be in the interest of justice to do so. Since the trial judge apparently gave no thought to whether exclusion of the expert’s testimony would thwart the interests of justice, the judge abused his discretion.

Defense counsel’s deficient performance only requires a new trial if the defendant was prejudiced. By the same token, a judge’s abuse of discretion in keeping evidence from the jury will only result in a new trial if the evidence might have changed the outcome. The court of appeals therefore had to decide whether the expert would have provided relevant and important testimony.

Relevance of Domestic Abuse Expert’s Testimony

Rebuttal evidence is relevant if it responds to evidence introduced by the opposing party. Expert evidence may be introduced as rebuttal evidence.

After the prosecution rested its case, Glatfelter’s counsel wanted to call an expert witness to testify about the impact of domestic violence on victims. Counsel argued that the need for the expert testimony only became apparent during the course of the trial.

The trial court disagreed, ruling that the proposed testimony overlapped the testimony of an expert Glatfelter had earlier identified. Since the first expert was excluded because the notice identifying the expert was untimely, the court also excluded testimony from the second expert.

At a post-trial hearing, the second expert testified that some domestic violence victims respond to abuse with force or violence, even if the violence might not be warranted, because they perceive the abuse as posing an imminent threat to their safety. The trial judge ruled that the expert’s testimony would not have been helpful to the jury because the expert did not testify that Glatfelter acted in self-defense.

The appellate court agreed with the trial judge that trial counsel knew of the state’s evidence prior to trial and therefore should have given timely notice of her intent to call an expert witness. The appellate court disagreed, however, that the expert testimony would not have been helpful to the jury.

While the appellate opinion did not summarize or analyze the expert testimony in any detail, the court concluded that the domestic abuse expert would have enabled counsel to argue that domestic abuse victims sometimes behave counterintuitively. Presumably, the expert’s opinion would have allowed the jury to understand why Glatfelter reasonably believed that a passionate kiss was threatening even if Glatfelter’s boyfriend posed no actual threat. The expert testimony was therefore relevant and its exclusion deprived Glatfelter of a fair trial.