Expert testimony about a “confirmed” diagnosis of “suspected pediatric sexual abuse” & that the witness believed the complainant; People v. Thorpe; People v. Smith; People v. Peterson; Bolstering witness testimony; People v. Dobek; Whether the error was harmless; People v. Lukity; People v. Denson

Holding that the trial court abused its discretion in admitting the prosecution expert’s (Dr. S) testimony about “her diagnosis of ‘confirmed’ ‘suspected pediatric sexual abuse’ and her statement that she believed” the complainant (A), and that the error was not harmless, the court reversed defendant’s convictions and remanded for a new trial. S testified that although her exam “and testing had not revealed any physical evidence of abuse, she had nevertheless ‘confirmed’ a diagnosis of ‘suspected pediatric sexual abuse’ on the basis of” A’s reported medical history. This “was extremely similar to the testimony” S gave in Harbison. Further, here she “testified outright” that she believed A, which violated “long-standing general principles against bolstering witness testimony as well as the specific principles applicable to treating physician experts in sexual abuse cases.” Her testimony here was almost “indistinguishable from her testimony as prohibited” in Thorpe, and if anything her “testimony in this case was even more clearly inadmissible . . . .” The court also concluded that under Thorpe, the error was not harmless. As in that case, this “was basically a credibility contest between defendant and [A]. Defendant’s partial acquittal suggests that the jury did not fully believe” A’s testimony. Further, S’s “improper testimony was not an isolated event. The prosecution referred to [her] testimony during closing arguments, emphasized her credentials, and stated that ‘[h]er medical findings were consistent with pediatric sexual abuse.’” It referred to her testimony again during rebuttal argument, and emphasized that S “had ‘worked for so many years . . . with victims of sexual assault.’ The jury was aware that [S] was a medical doctor who specialized in the treatment of abused children and who had been qualified as an expert in the field of medical evaluation of child sexual and physical abuse.” While the prosecution argued that other witnesses’ testimony about A’s and defendant’s behavior after she revealed the abuse supported A’s “credibility and harmed defendant’s, the potential impact of [S’s] improper expert testimony was such that, as in Thorpe, it ‘very likely bolstered’” A’s credibility and influenced the verdict. Thus, the integrity of defendant’s trial was seriously affected. The court concluded that the untainted evidence was not sufficient to independently support his convictions.