Ineffective assistance of counsel; Expert consultation; People v Trakhtenberg; Hearsay; Medical-treatment exception; MRE 803(4); Child forensic interviews; People v Meeboer; Expert testimony; Secondary diagnoses; People v Thorpe; Prejudice; Strickland v Washington; Sufficiency of the evidence; CSC I; Penile-to-anal penetration; Sexual assault nurse examiner (SANE)

The court held that defendant received ineffective assistance of counsel requiring a new trial, but that sufficient evidence supported the challenged CSC I convictions involving one complainant. Defendant was convicted in consolidated cases of 10 CSC I counts involving 3 minors. After remand for a Ginther hearing, the trial court found trial counsel deficient but not prejudicial. On appeal, the court first held that counsel performed deficiently by failing to object to a doctor’s and a SANE’s testimony about the children’s statements because the testimony was hearsay, the examinations occurred “at the direction of the prosecutor,” and “no medical purpose was served by these examinations whatsoever.” The court next held that counsel was deficient for failing to challenge the doctor’s “secondary diagnoses” because there was no record evidence that she had psychological or psychiatric expertise, and the diagnoses “practically amounted to an opinion on whether complainants were telling the truth.” The court also found that counsel should have consulted, and likely called, an expert in forensic interviewing, suggestibility, and memory taint because the defense theory challenged the reliability of the disclosures, and expert testimony would have been “particularly helpful to the jury here.” As to prejudice, the court held that the three errors together “undermine confidence in the outcome” because the inadmissible testimony bolstered inconsistent testimony, the diagnoses likely generated sympathy, and the absence of a defense expert left the jury without expert framing on child memory and suggestibility. Finally, the court held that defendant was not entitled to acquittal on some counts because testimony that he did “the nasty stuff” while one complainant lay on her stomach, together with other witnesses’ observations, allowed a rational jury to find penile-to-anal penetration. Reversed and remanded.