The Michigan Supreme Court recently decided two consolidated cases in which an expert witness was deemed to have vouched for the credibility of a child who reported a sexual assault. One case, discussed here, addressed a social worker who testified that children “overwhelmingly” do not lie about being sexually abused. The other, discussed in a separate ExpertPages post, addressed a doctor who based an opinion that a child had been sexually abused solely on the child’s statements to the doctor.
Prosecutors have long hoped that experts can convince juries to believe children who make accusations of sexual abuse when no physical evidence supports the accusation. The desire to assure the conviction of criminals who sexually abuse children is laudable. Unfortunately, when prosecutors and courts attempt to make it easier to secure convictions, they also make it easier to convict innocent defendants who are accused of crimes that never occurred.
While courts are in general agreement that an expert cannot opine that an accuser is telling the truth, experts are generally allowed to testify about how the victim of a sexual assault might behave. Testimony that a child’s conduct is “consistent with” the behavior of a sexual assault victim is particularly suspect. Since experts acknowledge that victims might behave in a variety of different ways, an accuser’s behavior can always be seen as “consistent with” the behavior of a victim. The risk is that an expert’s testimony about “consistent” behavior — whatever that behavior might be — will persuade the jury that the accuser behaved in a particular way because the accuser was sexually assaulted.
Judges who care about fair trials forbid that testimony because there is no way for an expert to know whether particular behavior was or wasn’t caused by a sexual assault. Courts might, however, reasonably permit testimony to explain why children might engage in specific kinds of behavior (such as delaying reporting of an assault) that might be regarded as evidence of innocence.
Expert testimony becomes troubling when it sends the message that the expert believes the child is telling the truth. Testimony that a child’s conduct is consistent with the behavior of a sexual assault victim, when it is equally consistent with the behavior of a child who wasn’t sexually assaulted, is an example of indirect vouching for the child’s credibility.
“Vouching” is also problematic when experts opine that children do not generally lie about being sexually assaulted. Experts acknowledge that it is a child’s nature to tell false stories (“I visited the moon”) and that young children have difficulty distinguishing fantasy from reality, but experts who act as advocates rather than objective witnesses testify that children are never untruthful about “really important things.”
Unfortunately, courts have been all too willing to admit that testimony, notwithstanding the absence of a scientific foundation to support the expert’s belief. While some experts have attempted to persuade juries that children who report abuse should always be believed, the fact that children sometimes make false allegations of sexual abuse is undeniable.
Not all false allegations are deliberate lies. Children can easily misinterpret actions and their memories can be shaped by suggestive questioning. Experts who are not agenda-driven also acknowledge that “there are no reliable tools or methods for detecting whether a child has made a false allegation.”
Facts of Thorpe Case
Joshua Thorpe was in a relationship with Chelsie for four years. Before they started dating, Chelsie had a daughter who is identified in the Michigan court decision as BG. Thorpe also fathered a daughter with Chelsie. BG referred to Thorpe as “dad.”
After the couple broke up, Thorpe continued to parent both children. A couple of years later, Chelsie began a relationship with a new boyfriend. That relationship resulted in tension after Chelsie began to deny Thorpe access to the children. After Chelsie became pregnant by her new boyfriend, she told Thorpe she did not want him to have a parenting relationship with BG.
Thorpe stopped seeing BG, a decision that might have caused BG to resent Thorpe, particularly since her mother clearly favored her new boyfriend and wanted BG to have nothing to do with Thorpe. Some months after she last saw Thorpe, BG told a friend about a single instance of inappropriate touching by Thorpe. When authorities questioned BG, the number of allegedly inappropriate touches multiplied.
The entire case against Thorpe was based on BG’s evolving statements. No forensic evidence pointed to Thorpe’s guilt. No witness saw Thorpe behaving inappropriately with BG. Thorpe denied sexually abusing BG. As the Michigan Supreme Court recognized, the trial was a classic “credibility contest” between BG and Thorpe.
Thomas Cottrell testified as an expert witness for the prosecution. Cottrell has a master’s in social work and provides counseling services for the YWCA. He gave uncontroversial testimony about why children might delay reporting a sexual assault, why different children might react to sexual assaults in different ways, and the decision-making process in which a child might engage before deciding to disclose a sexual assault.
On cross-examination, Cottrell made the unremarkable admission that children can lie. On redirect, Cottrell was asked if he could estimate the percentage of children who, in his experience, lie about being sexually assaulted. The defense objected that any such opinion had no foundation. The judge ruled that the defense opened the door to that testimony, a response that failed to address the legal merit of the objection.
Cottrell admitted that literature on fabricated allegations of sexual assault is “extremely variable,” then testified that in his experience at the YWCA, about two to four percent of children lie about being sexually abused. He testified that in those cases, the children had a clear motivation to lie, such as a desire for the same attention that an abused sibling was receiving.
Cottrell did not explain how he was able to determine that percentage or, for that matter, how he can distinguish between children who made false allegations, children who misunderstood what was happening, and children who reported the facts accurately. On re-cross, he admitted that “we don’t know what we don’t know.”
Appellate Decision in Thorpe
The appellate court noted that “Opening the door is one thing. But what comes through the door is another.” Cross-examining a witness about whether children sometimes make false accusations does not open the door to inadmissible opinions about witness veracity.
The Michigan Supreme Court applied the well-established rule that no witness, including an expert, can vouch for the veracity of an alleged crime victim. That is what Cottrell did when he suggested that false reporting of sexual assaults is “rare,” that it only occurs in 2% to 4% of all cases, and that the reasons he has seen for making a false report were not present in the Thorpe case.
The court wisely recognized that “although he did not say it,” Cottrell effectively testified that there was almost no chance that BG was not telling the truth about being sexually abused. A jury would likely have viewed his testimony as vouching for BG’s credibility.
Although Michigan is a Daubert state, the court rejected the testimony as violating the vouching rule without analyzing whether it satisfied Daubert. A Daubert analysis would have achieved the same result. Cottrell applied no reasonable methodology to arrive at his opinion that fabrications of sexual assault are rare. He acknowledged that study results of fabricated accusations are “widely variable” and he identified no criteria that allowed him to determine with any certainty whether the accusations he accepted as true were actually true. Since his expert opinion was not informed by a reliable methodology, it should not have been admitted against Thorpe.