PEOPLE OF THE STATE OF MICHIGAN v. TYLOR ROBERT SATTLER VANWAGONER (2024)

In People v Thorpe, 504 Mich 230, 235; 934 NW2d 693 (2019), our Supreme Court held “that expert witnesses may not testify that children overwhelmingly do not lie when reporting sexual abuse because such testimony improperly vouches for the complainant's veracity.” I agree with the majority that the statement by Holly Rosen, who testified as an expert in this case, that it is “statistically very rare” for children to falsely report sexual abuse runs afoul of Thorpe’s holding. Saying that it is “statistically very rare” for children to lie when reporting sexual abuse is testifying “that children overwhelmingly do not lie when reporting sexual abuse,” which Thorpe prohibits “because such testimony improperly vouches for the complainant's veracity.” Id. I therefore agree with the majority that Rosen's testimony that it is “statistically very rare” for children to falsely report sexual abuse was plain error. I also agree that defendant has not established that this error was outcome-determinative, so the plain error did not affect defendant's substantial rights.

I write separately because I do not agree with the majority that this Court has ever reached a different conclusion on similar facts. It is true that, in People v Yats, unpublished per curiam opinion of the Court of Appeals, issued August 4, 2022 (Docket No. 354180), a panel of this Court held that Rosen's testimony in that case that “[f]alse reports are very rare” did not warrant reversal. Id at 3, 6. But the Yats panel did not reach this conclusion by “interpreting Thorpe as only prohibiting expert testimony about statistical percentages,” as the majority posits. Ante at ___ n 4; slip op at 9 n 4. The Yats panel assumed that Rosen's testimony “amounted to an obvious error” but concluded that reversal was not required because defendant elicited the testimony. Yats, unpub op at 4-6. The panel recounted the defendant's questioning that led to Rosen testifying that “[f]alse reports are very rare,” observed that the defendant in Thorpe also elicited the expert's vouching testimony, provided Thorpe’s explanation for why the defendant in that case did not invite the error, then explained why, unlike in Thorpe, the defendant's questioning in the case before it opened the door to Rosen's objectionable testimony. Id. at 4-6. In short, the panel held that the “[d]efendant's trial attorney invited the testimony to which [the] defendant now objects,” so reversal was not required. Id. at 5-6.¹ This reasoning is inapplicable to the instant case given that Rosen's testimony vouching for the complainant was elicited by the prosecution. The parties do not appear confused by Yats or any statement made by the panel; neither party even cites the case.

That said, I agree with the majority's conclusion for the reasons explained, and accordingly concur.

FOOTNOTES

1.   At the end of its analysis, the Yats panel stated, “Furthermore, Rosen's testimony that lying in child sex abuse cases is ‘very rare’ lacks the statistical precision that troubled the Supreme Court in Thorpe.” Id. at 6. While I agree with the majority that this statement is not relevant to assessing whether Rosen's testimony amounted to impermissible vouching under Thorpe, I do not agree with the majority that this fleeting statement was the basis for the panel's holding.

Colleen A. O'Brien