In criminal cases, “it is improper for a witness or an expert to comment or provide an opinion on the credibility of another person while testifying at trial” because “‘jurors [are] the judges of the credibility of testimony offered by witnesses.’” People v Musser, 494 Mich 337, 348-349 (2013), quoting United States v Bailey, 444 US 394, 414 (1980). “Such comments have no probative value, because they do nothing to assist the jury in assessing witness credibility in its fact-finding mission and in determining the ultimate issue of guilt or innocence.” Musser, 494 Mich at 349 (quotation marks and citations omitted).
“The prosecutor cannot vouch for the credibility of his witnesses to the effect that he has some special knowledge concerning a witness’ truthfulness.” People v Skippergosh, ___ Mich App ___, ___ (2024) (cleaned up). “But a prosecutor may comment on his own witnesses’ credibility during closing argument, especially when there is conflicting evidence and the question of the defendant’s guilt depends on which witnesses the jury believes.” Id. at ___ (quotation marks and citation omitted). The Skippergosh Court held that “in light of the testimony presented at trial, it was reasonable for the prosecution to infer and argue that . . . family members did not have any unusual or impermissible motivations for testifying, and that they were compelled to do so simply out of commonplace concern for the well-being of a family member.” Id. at ___ (further noting that “nothing in the prosecution’s closing argument . . . hint[ed] at having special knowledge of the family members’ truthfulness or reasons for testifying”).
The jury is permitted to infer that a defendant’s implausible testimony is evidence of guilt. Id. at ___ (“As the trier of fact, the jury was entitled to disbelieve the defendant’s uncorroborated and confused testimony. And if the jury did disbelieve the defendant, it was further entitled to consider whatever it concluded to be perjured testimony as affirmative evidence of guilt.”) (cleaned up). In Skippergosh, the evidence presented at trial was sufficient to show the defendant committed an assault and battery against the victim. Id. at ___. In addition to testimony from the victim’s family members and neighbors, the defendant “provided implausible testimony to explain away . . . two assaults and the circumstances surrounding them.” Id. at ___. “For example, [the defendant] testified that the January 2020 assault against [the victim] was committed by four anonymous women in the living room while they were covering his eyes, and that [the victim] was screaming for help in December 2021 because she required assistance removing taco meat from the refrigerator.” Id. at ___ (noting that the trial court, during sentencing, characterized the defendant’s testimony as “almost laughable in terms of what you tried to convince the jury actually happened”). “Accordingly, the evidence was sufficient to establish that [the defendant] was guilty of domestic violence beyond a reasonable doubt.” Id. at ___.
“Absent exceptional circumstances, issues of witness credibility are for the jury, and the trial court may not substitute its view of the credibility for the constitutionally guaranteed jury determination thereof.” People v Knepper, ___ Mich App ___, ___ (2024) (cleaned up). “‘Conflicting testimony, even when impeached to some extent, is an insufficient ground for granting a new trial.’” Id. at ___ (citation omitted). “Unless it can be said that directly contradictory testimony was so far impeached that it was deprived of all probative value or that the jury could not believe it, or contradicted indisputable physical facts or defied physical realities, the trial court must defer to the jury’s determination.” Id. at ___ (cleaned up). “The trial court may also override the jury’s credibility determination when the testimony is patently incredible or it is so inherently implausible that it could not be believed by a reasonable juror, or where the [witness’s] testimony has been seriously impeached and the case marked by uncertainties and discrepancies.” Id. at ___ (quotation marks and citation omitted). “Thus, to obtain a new trial, the defendant must establish that one of these circumstances exists, and that there is a real concern that an innocent person may have been convicted or that it would be a manifest injustice to allow the guilty verdict to stand.” Id. at ___ (quotation marks and citation omitted).
A.Comment on Witness’s Credibility by Interrogator or Interviewer
“A witness may not comment on or vouch for the credibility of another witness.” People v Lowrey, 342 Mich App 99, 109 (2022). “Furthermore, a witness may not opine about the defendant’s guilt or innocent in a criminal case.” Id. at 109 (cleaned up). “Nevertheless, a police officer may testify about his or her perceptions during the course of an investigation of whether a defendant was being truthful.” Id. at 109. In Lowrey, a detective “unambiguously expressed the opinion that defendant was lying to him” and “cloaked his opinion in a veneer of artificial credibility by citing certain interviewing techniques[.]” Id. at 111. Although the detective “never stated that he believed defendant actually committed the crime” and “did not directly comment on the defendant’s testimony at trial,” his testimony “was clearly relevant” because the defendant’s “incriminating concessions during the interview had a significant tendency to make facts at issue more probable.” Id. at 111, 112. Further, “it was important for the jury to understand the nature of [his] interviewing techniques, including why [he] had asked certain questions and to give context to defendant’s answers.” Id. at 111.
It is “permissible for an interviewing officer to recount what he or she told an interviewee, including a statement of disbelief.”Lowrey, 342 Mich App at 113. “However, there is a subtle yet important distinction between testifying that ‘I told him I did not believe him as part of an interviewing technique,’ versus testifying that ‘I believe he was lying on the basis of my experience and training’” — the “latter clearly violates the prohibition against experts commenting on the truthfulness of a defendant’s confession.” Id. at 113. The Lowrey Court found that the detective’s “testimony clearly strayed beyond the bounds of permissibility” when “the prosecutor stressed how [the detective’s] conclusions were all based on an ostensibly scientific method” “after attempting to have [the detective] admitted as an expert[.]” Id. at 113. While “a witness’s opinion of another witness’s credibility has no probative value,” “such an opinion is not necessarily unfairly prejudicial.” Id. at 115. Despite its concerns, the Lowrey Court did not “conclude that [the detective’s] testimony was improper in its entirety or that the errors in his testimony were outcome-determinative.” Id. at 113. The Court held that “defendant’s own admissions, along with the other evidence admitted at trial, [was] sufficient to establish that the errors in [the detective’s] testimony were not, in this particular case, outcome-determinative.” Id. at 115.
There is no “bright-line rule for the automatic exclusion of” statements made by an interrogator or interviewer “that comment on another person’s credibility[.]” People v Musser, 494 Mich 337, 353 (2013). Rather, where such evidence is offered “for the purpose of providing context to a defendant’s statements, the [evidence is] only admissible to the extent that the proponent of the evidence establishes that the interrogator’s statements are relevant to their proffered purpose.” Id. at 353-354. See also MRE 401. “Accordingly, an interrogator’s out-of-court statements must be redacted if that can be done without harming the probative value of a defendant’s statements.” Musser, 494 Mich at 356. In addition, even if the evidence is deemed relevant, it may still be excluded under MRE 403, “and, upon request, must be restricted to their proper scope under MRE 105.” Musser, 494 Mich at 354. In Musser, 494 Mich at 359-362, the trial court abused its discretion in admitting two interrogators’ statements to the jury because the statements were irrelevant and not probative to providing context to the defendant’s statements. Many of the statements “could have been easily redacted without harming the probative value of defendant’s statement.” Id. at 361. See also People v Tomasik, 498 Mich 953, 953 (2015) (holding that the trial court erred in “admitting the recording of the defendants interrogation” because “nothing of any relevance was said during the interrogation, . . . and thus [it] was not admissible evidence”).
B.Comment on Witness’s Credibility by CPS Worker
The trial court abused its discretion by allowing a witness to comment on or vouch for the credibility of another witness; specifically, the court allowed a CPS worker to testify that “based on her investigation, she found that [the victim’s] allegations had been substantiated,” and “there was no indication that [the victim] was coached or being untruthful.” People v Douglas, 496 Mich 557, 570, 583 (2014) (quotation marks and alteration omitted). For the same reason, the trial court abused its discretion when it allowed an expert forensic interviewer to testify that the victim “had not been coached” and was “being truthful[.]” Id. at 570. However, there was no plain error affecting substantial rights where an officer testified as an expert “that there [was] no indication that [the] child victim was coached” on redirect examination after defense counsel pursued a line of questioning suggesting that the victim had been coached on cross-examination.1 People v Sardy, 313 Mich App 679, 723 (2015), vacated in part on other grounds 500 Mich 887 (2016).2 The Sardy Court explained:
“We initially note that it is unclear from Douglas whether the Court found problematic the testimony regarding coaching or whether the main or sole concern was the testimony about the victim’s truthfulness (or perhaps a combination thereof). Defendant makes no claim here that the officer ever opined at trial that the victim was telling the truth. In our view, giving an opinion that there was no indication that a child CSC victim was coached based on forensic-interview training, experience, education, and the totality of the circumstances, MRE 702 and MRE 703, is not the equivalent of opining that the victim was credible or telling the truth. Indeed, we believe that there is also a distinction between testifying that a child victim had not been coached, like the definitive conclusion made by the forensic interviewer in Douglas, 496 Mich at 570, 583, and testifying that there is no indication that a child victim was coached, as opined by the officer in this case. Additionally, defendant opened the door to the question whether there was any indication of coaching.” Sardy, 313 Mich App at 722-723.
The Court further held that even if Douglas requires the conclusion that the officer’s testimony was inadmissible, the defendant failed to demonstrate plain error affecting substantial rights; accordingly, reversal was unwarranted. Sardy, 313 Mich App at 723.
C.Witness Comment on a Child’s Assertion of Sexual Abuse
“Generally, a witness may not comment or provide an opinion on the credibility of another witness, because credibility matters are to be determined by the jury.” People v Sattler-VanWagoner, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). “The same is true for expert witnesses.” Id. at ___. However, “when a defendant attacks the credibility of the victim, a qualified expert may offer testimony to explain the typical behavior of victims of child sex abuse.” Id. at ___. “In child sex abuse cases, an expert may also testify regarding the typical symptoms of child sexual abuse in order to explain a victim’s specific behavior that might be incorrectly construed by the jury as inconsistent with that of an abuse victim or to rebut a credibility attack.” Id. at ___. “Still, an expert may not vouch for the credibility of the victim.” Id. at ___. “Commenting on the numerical odds or a statistical assessment of a witness telling the truth or lying about sexual assault allegations amounts to vouching.” Id. at ___.
“[E]xpert witnesses may not testify that children overwhelmingly do not lie when reporting sexual abuse because such testimony improperly vouches for the complainant’s veracity.” People v Thorpe, 504 Mich 230, 235 (2019). Additionally, “examining 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. See also People v Del Cid (On Remand), 331 Mich App 532, 542 (2020) (holding that “an examining physician’s testimony diagnosing a child-complainant with ‘possible sexual abuse’ is inadmissible without corroborating physical evidence”; the admission of such evidence constitutes a plain error requiring reversal).
In Sattler-VanWagoner, an expert witness impermissibly vouched for the victim’s “credibility by testifying that false reports were ‘statistically very rare in cases like this’ for two reasons.” Sattler-VanWagoner, ___ Mich App at ___. “First, although [the expert] did not provide a specific percentage value, her comment on the statistical rarity of a false report was sufficiently similar to bring her testimony within the scope of Thorpe’s prohibitions.” Id. at ___ (reasoning there was no “meaningful difference between saying that the likelihood a complainant will lie is 2% to 4% and saying that it is ‘statistically very rare’”). “Second, the addition of the phrase ‘in cases like this’ comes dangerously close to commenting directly on [the victim’s] truthfulness or veracity in this case.” Id. at ___ (“That phrase directly linked the statistical likelihood of a false report to the testimony in this case.”).
“An expert is not permitted to testify that the particular child victim’s behavior is consistent with that of a sexually abused child because such information comes too close to testifying that the particular child is a victim of sexual abuse.” People v Muniz, 343 Mich App 437, 446 (2022) (quotation marks and citation omitted). In Muniz, the Court of Appeals concluded that an expert witness did not improperly vouch for the complainant’s credibility because he “never compared his general information about the behavior of abuse victims with specific behavior of the complainant.” Id. at 446. The Muniz Court observed that “general information about abuse victim’s conduct” which “happened to be consistent with the complainant’s postincident behavior does not constitute vouching.” Id. at 447. The Court noted that the expert “testified that he had not met the complainant or read the police report or forensic interview,” “made no references to the victim’s allegations, her disclosure of information, or any other aspects of this case,” “and at no time . . . offer[ed] any opinion or statement that could be reasonably understood as vouching for the complainant[.]” Id. at 447. The Muniz Court further held that the examining physician did not improperly vouch for the complainant’s testimony where she “gave no testimony respecting whether the complainant had been sexually abused,” “did not provide any diagnosis,” including whether “the complainant [was] a probable or actual victim of pediatric sexual abuse,” “gave no opinion regarding the complainant’s statements, and testified that she directed follow-up care for testing for sexually transmitted disease infection from contact with bodily fluids.” Id. at 450, 451.
“[T]estimony by a police officer witness improperly vouched for the [child] complainant’s credibility and improperly commented on the defendant’s guilt” where the detective “testified that the complainant’s demeanor during her interview was consistent with that of a typical child sexual assault victim and that, given his specialized training, the complainant’s testimony ‘seemed authentic to [him].’” People v Hawkins, 507 Mich 949 (2021) (third alteration in original). The detective also improperly testified “that he tried but was unable to find inconsistencies in the complainant’s allegations, stating, ‘[I]f I can’t prove that [the abuse] didn’t happen, then there’s a good possibility that it did,’ seemingly shifting the burden of proof to defendant to prove his innocence,” and “also testified that, on the basis of his investigation, he found defendant’s suggestion that the complainant made up the abuse allegations to get her father’s attention to be ‘[n]ot true.’” Id. (alterations in original). The Hawkins Court concluded “that, but for [a] deficiency in defense counsel’s performance [to object to the testimony], there [was] a reasonable probability that the outcome of the trial would have been different” if the detective’s testimony had been excluded. Id.
See Section 4.3(B) for further discussion and information on victims of child sexual abuse.
D.Use of Religious Beliefs/Opinions to Impair or Enhance Witness’s Credibility
“While evidence of religious matters may be relevant in certain narrow contexts, . . . if testimony about religious beliefs or opinions is offered to impair or enhance credibility, then that testimony must be excluded.” Nahshal v Fremont Ins Co, 324 Mich App 696, 709 (2018). See also MCL 600.1436 and MRE 610. The Court declined to impose a rule of automatic reversal as set forth in People v Hall, 391 Mich 175 (1974) and its progeny, which have extended a limited rule of automatic reversal to certain criminal cases in which a witness gives testimony regarding the defendant’s or the victim’s religious beliefs or opinions. Nahshal, 324 Mich at 722. Rather, the Nahshal Court concluded that Hall and its progeny are limited to the criminal context and instead applied Sibley v Morse, 146 Mich 463 (1906), which concluded that in civil actions, prejudice must be shown before reversal of a jury verdict is warranted. Nahshal, 324 Mich at 715-717 (no prejudice was found in Nahshal because the Court concluded that the record demonstrated it was more probable than not that the admission of the improper testimony was not outcome determinative).
Committee Tip:
This would be a useful time to ask the proponent of religious beliefs/opinion testimony to articulate the purpose of admission of the evidence in question.