The Michigan Court of Appeals has thrown out a jury’s guilty verdict and granted a new trial after determining that a doctor’s testimony went beyond the scope of what doctors may testify about in criminal sexual conduct cases.

The Crime

A minor child accused Ryan William Cole, 37, of sexually assaulting her three times in 2014. She claims that she told her mother and other relatives about the first incident, but not the others. Her mother claims that the girl never told her about the abuse and that she had learned about the allegations after a claim was made with Child Protective Services.

The Trial

Prosecutors retained Dr. Lisa Markman to testify as its expert witness. At the time of the trial, Dr. Markman was serving as an assistant professor of pediatrics and the associate medical director of the Child Protection Program at C.S. Mott Children’s Hospital at the University of Michigan in Ann Arbor.

At trial, Dr. Markman testified that she had interviewed and physically examined the girl. Dr. Markman testified that the girl told her that Cole had sexually abused here when she was 5 and 6 years old. She also testified that she did not observe any physical signs of abuse and that she concluded that the girl had been sexually abused solely on the basis of the girl’s account of the alleged incidents.

A Lenawee County Circuit Court jury found Cole guilty of two counts of first-degree criminal sexual conduct involving a person younger than 13. Circuit Judge Margaret M.S. Noe sentenced Cole to 25 to 75 years in prison.

The Court of Appeals

Cole appealed to the Michigan Court of Appeals and it denied his appeal. He appealed to the Michigan Supreme Court, which returned the case to the Court of Appeals to determine whether the prosecution’s expert witness had impermissibly vouched for the credibility of the alleged victim.

Upon review, the Court of Appeals determined that Dr. Markman had impermissibly offered testimony about the credibility of the alleged victim beyond what doctors are allowed to testify about in criminal sexual conduct cases.

Court of Appeals Judges Cynthia Diane Stephens, Deborah A. Servitto, and Anica Letica noted that Michigan Rules of Evidence and two earlier court opinions say that one witness is not permitted to comment on the veracity of another witness’ testimony because credibility matters are to be determined by the jury.

Here, the case “turned on the jury’s assessment of the victim’s credibility because there was no physical evidence, no witnesses to the alleged assaults, no inculpatory statements, and the defendant denied the allegations.” Since Dr. Markman’s opinion was based on the girl’s account of the incidents and her opinion of the girl’s truthfulness, her testimony violated the principle 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.”

The Court of Appeals threw out the jury’s guilty verdict and sent the case back to circuit court for a new trial.  Lenawee County was not conducting jury trials during the COVID-19 pandemic; however, its numbers have declined below the threshold for conducting jury trials. Because this case is from 2014, it will be the first trial on the schedule once the county gets the go-ahead from the Michigan State Court Administrative Office.