If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

October 29, 2020

v No. 340931

Van Buren Circuit Court

JASON BRENT KEISTER, LC No. 2016-020783-FC

Defendant-Appellant.

ON REMAND

Before: GLEICHER, P.J., and RONAYNE KRAUSE and O’BRIEN, JJ.

GLEICHER, J. (dissenting).

A jury convicted defendant Jason Keister of criminal sexual conduct in the first and second 

degree. The complainant, age 11 at trial, testified that Keister repeatedly sexually assaulted her 

two years earlier. Keister vehemently denied any sexual misconduct.

The trial was a classic credibility contest. Two expert witnesses testified on the 

prosecution’s behalf: Dr. Angela May, a pediatrician specializing in child abuse and neglect 

medicine, and Gloria Gillespie, a therapist specializing in counseling sexually abused children.

Dr. May examined the complainant, found no physical signs of abuse, and opined that based solely 

on the child’s disclosures, “there was a high likelihood of abuse.” Dr. Gillespie described several 

concepts related to child sexual abuse.

We affirmed Keister’s convictions on direct review. People v Keister, unpublished opinion 

per curiam opinion of the Court of Appeals, issued May 16, 2019 (Docket No. 340931). The 

Supreme Court vacated the part of our opinion addressing the admissibility of Dr. May’s expert 

opinion regarding the likelihood of sexual abuse. People v Keister, __ Mich __; 940 NW2d 117 

(2020), mod on recon 944 NW2d 721 (2020). The sole issue presented on remand is whether Dr. 

May’s erroneously admitted opinion affected Keister’s substantial rights, warranting a new trial. 
-2-

The majority affirms once again, proffering four reasons for rejecting that the improper 

testimony tainted Keister’s trial: Dr. May was impeached to some extent, “the jury was powerfully 

moved by the victim’s own testimony,” the complainant’s recounting of the events was consistent, 

and others “corroborated” what the complainant said. I respectfully dissent.

I

Our Supreme Court has spoken in no uncertain terms: the admission of Dr. May’s opinion 

constituted plain error. Id. The Supreme Court declared that May’s testimony obviously 

contravened People v Smith, 425 Mich 98; 387 NW2d 814 (1986), People v Peterson, 450 Mich 

349; 537 NW2d 857 (1995), and People v Thorpe, 504 Mich 230, 934 NW2d 693 (2019). Keister, 

___ Mich at ___. This trio of cases generally stands for the proposition that experts may not bolster 

the credibility of a complaining witness by vouching for his or her veracity. Smith, 425 Mich at 

109, specifically prohibits an examining physician from offering an opinion regarding whether a 

complainant had been sexually assaulted if that “conclusion [is] nothing more than the doctor’s 

opinion that the victim had told the truth.”

Our task on remand is to examine whether the prejudice prong of plain-error review has 

been satisfied. The question is easily answered in the affirmative. In People v Harbison, the

companion case to Thorpe, the Supreme Court unanimously held that the defendant had 

established a virtually identical plain error and concluded that the error affected his substantial 

rights, requiring a new trial. Thorpe, 504 Mich at 260. I am unable to distinguish this case from

Harbison.

This case, like Harbison, involved alleged sexual misconduct unwitnessed by anyone other 

than the complainant and the defendant. Here, as in Harbison, a pediatric expert testified to a 

likelihood of sexual abuse.

1

 Here, as in Harbison, no physical evidence supported the doctor’s 

“diagnosis.” Here, as in Harbison, the expert relied on the child’s account of what had occurred

in reaching her ultimate conclusion of abuse. The expert witness in Harbison, as here, “reinforced 

this plain error by claiming that her diagnosis derived from a ‘national [consensus] of 

pediatricians[.]”2 Id. at 247. And here, as in Harbison, the prosecutor established the expert’s 

credentials and experience in her field.3

 

1

In Harbison, the expert used the term “probable pediatric sexual abuse,” Thorpe, 504 Mich at 

244, while Dr. May testified to “a high likelihood of abuse” despite that her notes referred to a 

diagnosis of “probable” abuse. This is a distinction without a difference. Dr. May additionally 

stressed that there was only “[a] small possibility” of “non-abuse.”

2 On redirect examination, the prosecutor questioned Dr. Mays extensively regarding the 

“guidelines” she followed in reaching her conclusion of a “high likelihood of abuse.” Dr. May 

offered that “[e]xperts in our field came up with these guidelines,” and agreed that she “was just 

following them at the time” she examined the complainant.

3 Dr. May testified that she had been qualified as an expert in child abuse and neglect medicine 

“maybe 20 times by now.”
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The Supreme Court held in Harbison that the expert’s sexual abuse opinion contravened 

Smith because it “was based solely on her own opinion that [the child’s] account of the assaults 

was ‘clear, consistent, detailed and descriptive.’ ” Thorpe, 504 Mich at 262. The Court highlighted 

that “[a]n examining physician’s opinion is objectionable when it is solely based ‘on what the 

victim . . . told’ the physician. Such testimony is not permissible because a ‘jury [is] in just as good 

a position to evaluate the victim’s testimony as’ the doctor.” Id. (alterations in original). Dr. 

May’s testimony mirrored that of the expert in Harbison. Indeed, on redirect examination, Dr. 

May explained that her “diagnosis” of “probable abuse” rested on the expert guidelines’ 

designation of that term when a complainant is “able to provide a clear and descriptive and detailed 

account of what happened[.]”

The Supreme Court had no difficulty concluding that the plainly erroneous admission of 

the expert’s opinion testimony affected Harbison’s substantial rights, necessitating a new trial. Id. 

The Court reasoned as follows:

[T]he instant case is largely a credibility contest. The only evidence against 

Harbison was [the child’s] uncorroborated testimony. To bolster its case, the 

prosecution presented testimony from a pediatrician who is board-certified in child 

abuse pediatrics; who is currently a medical director at the Safe Harbor Children’s 

Advocacy Center; who has examined, in her estimate, thousands of children that 

have been sexually abused; and who has testified as an expert witness in 32 

counties. Given the lack of compelling testimony that forms the basis for the 

verdict and the plainly erroneous testimony that [the child] suffered “probable 

pediatric sexual abuse,” we conclude that the plain error affected Harbison’s 

substantial rights. [Id. at 264.]

Dr. May does not have precisely the same credentials as did the expert in Harbison, but otherwise 

the above summary fits this case to a tee.

In Harbison, the Court underscored the impact of the improperly admitted testimony by 

observing that the “error strikes at the heart of several important principles underlying our rules of 

evidence” because it “not only had the effect of vouching for [the child’s] credibility, but” also 

invaded the jury’s province “to determine the only issue in the case.” Id. at 264-265. The Court 

summarized, “This improperly admitted testimony very likely bolstered [the child’s] credibility 

and affected the verdict. We conclude that the gravity of this significant error seriously affected 

the integrity of Harbison’s trial.” Id. at 265-266.

The crux of the Supreme Court’s analyses in Harbison and Thorpe applies with equal force 

here: in the absence of corroborating medical evidence, an expert’s opinion that sexual abuse 

occurred is overwhelmingly prejudicial. Dr. May’s “diagnoses” rested entirely on her assessment 

of the child’s credibility. When a highly qualified and unchallenged expert aligns her opinion on 

one side of a pure credibility contest, that opinion likely carries great weight with a jury, verging 

on the indisputable establishment of a medical fact. Guided by Thorpe and Harbison, I would 

hold that reversal is warranted.
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II

The majority’s attempts to distinguish this case from Thorpe/Harbison are legally 

unpersuasive and factually inconsistent with the record. 

The majority begins by attempting to portray Dr. May’s testimony as inconsequential 

because she was “impeached.” I read the record differently. The majority admits that Dr. May 

“had no basis for her diagnosis other than what the victim said.” Yet Dr. May never retreated from 

her conclusion; she augmented its validity on redirect, reiterating that the complainant’s story was 

credible and sufficient to support the “diagnosis.”

As the majority correctly observes, Dr. May admitted during cross-examination that she 

did not personally take a history from the complainant; rather, she interviewed the complainant’s 

mother. A social worker on Dr. May’s team obtained information from the child and conveyed it

to Dr. May. The majority finds this evidence impeaching, but I believe that it actually enhanced

the power of the bolstering. Dr. May testified that she did not need to personally interview the 

child because as an expert, she believed that the child’s story rang true. The message plainly 

telegraphed to the jury was that as an experienced and trained physician relying on “expert 

guidelines,” Dr. May knew that the complainant was credible. She did not need to judge the child’s 

demeanor, to hear Keister’s side, or to test the evidence in any other way. Rather, Dr. May told 

the jury that despite the absence of any corroborating physical evidence, as an expert in child 

sexual abuse she could readily determine that the complainant was telling the truth.

The majority rejects the notion that Dr. May’s testimony could have had any meaningful 

force in this case, expressing “faith” in “the jury’s ability to think for itself[.]” “Faith” in a jury 

regularly gives way to gatekeeping under MRE 105, MRE 403, MRE 404, MRE 407, MRE 410, 

MRE 411, and MRE 702—to name but a few rules restricting the admission of otherwise relevant 

evidence. Despite our abiding “faith” in a jury’s ability to weigh the evidence and to judge 

credibility, for policy reasons the rules of evidence remove from the jury’s consideration certain 

facts because they may “weigh too much” and “overpersuade.” Michelson v United States, 335 

US 469, 476; 69 S Ct 213; 93 L Ed 168 (1948). Courts uniformly recognize that expert testimony 

in particular may have an outsized impact on a jury, filling in compelling gaps in the evidence or 

doubts about credibility with the authoritative say-so of a highly educated and experienced 

scientist. 

The reason parties call experts is that experts know things that lay people don’t. Experts 

offer opinions based on deep experience that go beyond first-hand observation—the backbone of 

most other testimony. Lay people don’t interview child victims of sex abuse. Experts like Dr. 

May do. Lay people lack knowledge of the psychological characteristics of abused children. 

Experts like Dr. May are trusted repositories of such knowledge, especially when officially deemed 

“expert” by a court. “To a jury recognizing the awesome dilemma of whom to believe, an expert 

will often represent the only seemingly objective source, offering it a much sought-after hook on 

which to hang its hat.” People v Peterson, 450 Mich 349, 374; 537 NW2d 857 (1995) (quotation 

marks, citation, and emphasis omitted). As a matter of policy, Michigan courts protect the integrity 

of the trial process in cases involving child sexual abuse by withholding from a jury’s consideration 

relevant credibility evidence that may factor too powerfully in the jury’s judgment. This rule 
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safeguards faith in the system’s fairness—that the jury will do its job in a way that fully protects 

the rights of all participants.

The majority’s next determination, that some jurors’ alleged reaction to the complainant’s 

testimony is of “great importance” and mitigates against prejudice, is equally meritless. During 

his closing argument, defense counsel said: 

I want to touch on the idea of this reasonable doubt. I talked about no second 

thoughts and it is hard, I know, some of you were very emotional when [the 

complainant] testified. I hope you would be. I am not saying it is easy for her, I 

am not saying she is a manipulative little person who is just out to get somebody, I 

am saying she is a child.

This observation does not erase or even erode the prejudicial impact of Dr. May’s testimony. That 

some jurors displayed sympathy or concern for the complainant is normal, expected, anticipated, 

and appropriate. An expression of human feeling on the part of a few jurors is not a marker of 

whether improperly admitted evidence affected the fairness, integrity, or public reputation of the 

proceedings.4

According to the majority, reversal is additionally unwarranted because the complainant’s 

recounting of what happened was consistent and “corroborated” by several witnesses other than 

Dr. May. The record does not support the majority’s view. The complainant was impeached with 

evidence that she had described what had happened quite differently to her mother than she had to 

her friend. And no one “corroborated” the complainant’s story. Other witnesses repeated what 

the complainant told them; most were impeached to some extent by contradictions in their 

recollections when measured against the complainant’s testimony. The majority’s insinuation that 

a witness “corroborated” the fact of the abuse is flatly wrong and misleading. 

The trial court plainly erred by admitting expert testimony that improperly vouched for the 

complainant’s credibility. As in Thorpe/Harbison, this was a pure credibility contest in which 

vouching by an expert witness likely tilted the scales in the prosecution’s favor. I would hold that 

the inadmissible evidence seriously prejudiced Keister and mandates a new trial.

/s/ Elizabeth L. Gleicher 

 

4

Inexplicably, the majority characterizes counsel’s closing argument as “evidence.” There is no 

evidence regarding the “effect” of the complainant’s testimony on the jury. Counsel’s statement 

is an expression of counsel’s opinion, nothing more.