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- Appellee, UNPUBLISHED October 29, 2020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: G LEICHER
, P .J., and R ONAYNE K RAUSE and O’B RIEN , JJ.

G LEICHER
, 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 miscond uct.

T he trial was a classic credibility contest. T wo 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 se xually 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 People v Keister , unpublished opinion per curiam opinion of the Court of Appeals, issued May 16, 2019 (Docket No. 340931).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 __; 94 0 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

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The majority affirms once again, proffering four reasons for rejecting that the improper testimony tainted Keister’s trial: Dr. M ay 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 ha s spoken in no uncertain terms : t he 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 NW 2d 857 (1995), and People v Thorpe , 504 Mich 230 , 934 NW2d 693 (2019). Keister

, ___ Mich at ___. This trio of cases generally stand s 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 th at “ conclusion [is] nothing more than the doctor’s opinion that the victim had told t he truth. ”

Our task on remand is to examine whether the prejudice prong of plain

- error review has
been satisfied. T he question is easily answered in the affirmative. In People v Harbison

, t he companion case to Thorpe , the Supreme Court unanimously held t hat the defendant had
established a virtually identical plain error and concluded that the error affected his substantial rights , requir i ng 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 ne glect medicine “maybe 20 times by now.”- 3

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T he 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 opini on 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 Harbi so n

. 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[.]”

T he 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

. T he 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 o f 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 pedia tric 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 Harb ison

, t he 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 ” b ecause it “ not only had the effect of vouching for [the child’s] credibility, but ” also
invad ed 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 medi cal 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, th at 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.- 4

- II

The majority’s attempts to dist inguish this case from Thorpe/Harbison are legally unpersuasive and factually inconsistent with the record

.

The majorit y 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 sufficie nt 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 te am 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 complain ant 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 a n expert in child
sexual abuse she could readily deter mine 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 judg e credibility, for policy reasons the r ules of e vidence 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). C ourts 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 li ke 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 85 7 (1995) (quotation
marks

, citation , and empha sis 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- 5

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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.

Th is observation does not erase or even erode the prejudicial impact of Dr. May’s testimony. Th at 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 un warranted 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
recol lections 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 vouch ed 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 K eister 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 c ounsel’s opinion

, nothing more.