Expert testimony; Allowing the jury to question an expert witness about the rates of false allegations among child sexual abuse victims; Vouching; People v Peterson; People v Thorpe; People v Sattler-VanWagoner; Whether an issue was waived or unpreserved

Holding that the trial court plainly erred in allowing the jury to ask an expert witness (C) questions that resulted in C vouching for the complainant (NN), the court vacated defendant’s convictions and remanded for a new trial. The case concerned allegations of CSC. NN was a child. Defendant argued on appeal that the trial court erred in allowing C “to vouch for NN by testifying to the rates of false allegations among child sexual abuse victims” in response to juror questions. The court agreed. It found that while C “did not, as he did in Thorpe, provide jurors with a specific percentage of child sexual abuse victims who lie about their abuse, his testimony nevertheless impermissibly quantified that information in a nearly identical manner.” When he testified here “that, among the roughly 350 cases with which he was personally involved, ‘only a handful’ of child sexual abuse victims were lying about their abuse, and that it was a ‘[v]ery small percentage,’ [C] gave the jury the very same information, stopping short only of calculating the percentage for them in numerical terms. In doing so, he impermissibly vouched for the complainant. The fact that one may arrive at slightly different figures depending on how [C’s] testimony is mathematically glossed is immaterial. An expert who opines on the veracity of child sexual abuse victims generally is inferentially vouching for the complainant specifically.” The court further concluded that the error affected the outcome of the trial. Like Thorpe, this “was a ‘true credibility contest’” – the prosecution’s case consisted of NN’s “allegations, testimony by her mother regarding the complainant’s disclosure of the alleged abuse, and [C’s] expert testimony.” And defendant, like the defendant in Thorpe, “testified in his own defense, denying the allegations.” In addition, the court found that “the error ‘seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant’s innocence.’”